Can an Arkansas volunteer fire department raise its dues collected on property tax bills without going back to voters?

Plain-English summary

Representative Joshua Bryant asked about Arkansas's volunteer fire department dues statute, Ark. Code Ann. § 14-20-108. Under that statute, a volunteer fire department (VFD) can ask the county quorum court to call an election asking voters whether the VFD's dues should be added to property tax bills and collected by the county. If voters approve, the dues appear on the tax bills automatically. The question was whether, after that approval, the VFD can raise its dues without going back to the ballot.

The AG's answer was three-part:

1. If the ballot listed a specific rate, only that rate may be assessed. Any increase needs a fresh vote.

2. If the ballot was silent on the rate (just a general authorization), the VFD's board can raise the dues without a new vote, because Arkansas law requires VFD boards to be elected by service-area members and accountable to them through regular elections.

3. The county can keep collecting and remitting the dues at the new rate; it does not need a new election either.

The AG's key point on the constitutional side: the only reason raising dues without a new vote is allowed is that the people who pay the dues elect the board that sets them. Without that accountability, § 14-20-108 would run into Ark. Const. art. 4, § 2's prohibition on delegating legislative power (the power to impose a fee or tax) to a private entity. The opinion cited the Plant Board cases (Monsanto v. Ark. State Plant Bd. (2021) and McCarty v. Ark. State Plant Bd. (2021)) where the Arkansas Supreme Court struck down a statutory scheme for unconstitutional delegation. Subscription-style VFDs, the focus of § 14-20-108, are usually nonprofit corporations whose members elect the board (Ark. Code Ann. § 4-28-211, § 4-28-212, § 4-33-721, § 4-33-725, § 4-33-808). That voter-board accountability is what saves the structure.

What this means for you

Volunteer fire department boards

Check what the original ballot said. If voters approved a specific rate, that is the cap. To raise dues, you need another quorum-court election (or a § 14-20-108(a)(1)(B)(i)(c) petition path). If voters approved a general authorization without a rate, your board can raise dues by board action, but you must keep your member-election rules in good order. Voting must be open to the entire membership (§ 4-28-211(a), § 4-28-212(a)), each member must have a vote, and members must be able to remove directors (§ 4-33-725, § 4-33-808). If your board has drifted away from regular elections or member control, fix that before raising dues; without member accountability, the statute's constitutional foundation gets shaky.

Quorum courts and county collectors

Your role under § 14-20-108 is essentially ministerial: place the dues on the property tax statements and remit to the VFD. You do not have to question rate increases when the ballot was a general authorization, but it is reasonable to ask the VFD to provide written documentation of the board action and confirmation of the member-election structure. If a voter complains that the rate is higher than what they approved, your office can show the underlying documentation. If the ballot named a specific rate, do not collect more than that rate without a new vote.

Rural property owners served by a VFD

Your VFD's dues appear on your property tax bill because either a majority of voters approved a § 14-20-108 levy, or a majority of registered voters signed a petition. Whether the VFD can raise the dues without a new vote turns on the ballot. If the ballot named a specific rate, the VFD cannot exceed it without going back to voters. If the ballot was silent on the rate, your remedy for a rate you do not like is to attend the VFD's annual member meetings, vote in board elections, or run for the board yourself. The board sets the rate, and members hold the board accountable.

County and VFD attorneys

When advising on a rate increase, walk through the original ballot text first. If a specific rate appears, tell the VFD it cannot raise dues without a new vote. If the ballot is silent on rate, advise the VFD to follow its own corporate procedures: notice, member meeting, board action, minutes, and dissemination to members. Make sure the corporate records reflect that the board members are validly elected and serving terms consistent with the bylaws. Document the rate increase in writing to the county collector.

Common questions

Q: How does Ark. Code Ann. § 14-20-108 work?
A: A volunteer fire department asks the county quorum court to put VFD dues on the property tax bills. The quorum court either calls an election or accepts a signed petition from a majority of registered voters. If the levy is approved, the dues appear on annual real-property tax statements and are collected at the same time as property taxes.

Q: Why does the rate-on-the-ballot question matter so much?
A: Voter approval defines the scope of the authorization. If voters approved a specific rate, anything higher exceeds the authorization. If voters approved a general authorization, the VFD's board, accountable to members through elections, has discretion over the rate.

Q: What's the constitutional concern about VFD-set rates?
A: Article 4, § 2 of the Arkansas Constitution forbids delegating legislative power to a private entity. A fee or tax is a legislative function. If the VFD's board is not elected by and accountable to the people who pay the dues, letting the board set the rate would be an unconstitutional delegation. The accountability through member elections is what makes the statute workable.

Q: What are the "Plant Board cases" referenced in the opinion?
A: Monsanto Co. v. Ark. State Plant Bd. (2021 Ark. 103) and McCarty v. Ark. State Plant Bd. (2021 Ark. 105). The Arkansas Supreme Court held the statute setting up the Plant Board's appointment process unconstitutionally delegated legislative power to a private entity. The AG cited those cases as the constitutional backdrop for the VFD analysis.

Q: Does the answer change if the VFD is structured as a fire-protection district instead of a nonprofit corporation?
A: The opinion focuses on subscription-style VFDs organized as private nonprofit corporations under § 4-28 or § 4-33. Other VFD structures (improvement districts, fire-protection districts under different statutes) have different rate-setting and accountability rules. Op. Att'y Gen. 2008-134 and 96-114 list the variations. Confirm your VFD's legal form before applying this opinion.

Q: Can voters force a rate to be lowered?
A: Not directly, under § 14-20-108. Your remedy is through board elections at the VFD level. If you can get the membership to elect a board willing to lower the rate, the rate can come down.

Q: What if the dues become unaffordable for some property owners?
A: § 14-20-108 does not have a hardship exemption built in. The statute's accountability mechanism is the member election. If hardship is widespread, the board has political pressure to set a sustainable rate, and members can vote out a board that does not.

Q: What does the petition path under § 14-20-108(a)(1)(B)(i)(c) do?
A: It lets the quorum court skip the election entirely if a majority of registered voters in the VFD district (measured by participation in the immediately preceding general election) sign and file an attested petition. The dues then go on the tax bills the same way as if voters had approved them at an election.

Background and statutory framework

Arkansas has a patchwork of "volunteer fire department" structures. The AG noted in footnote 4 that the term covers everything from nonprofit subscription departments to improvement-district fire services. Section 14-20-108 is targeted at private, nonprofit, subscription-style departments where members pay to join and the department is governed by an elected board.

§ 14-20-108(a)(1)(B)(i)(a) describes the election process: a VFD asks the quorum court for an election on the levy of dues "on each residence and on each business having an occupiable structure." The quorum court calls the election. § 14-20-108(a)(1)(B)(i)(c) provides the petition alternative: a majority of registered voters in the district can sign and file a petition with the county clerk, and the quorum court can adopt the levy without an election. § 14-20-108(a)(1)(B)(i)(d) directs that approved dues "shall be listed annually on real property tax statements and collected by the county collector at the same time and in the same manner as real property taxes."

The accountability rules for nonprofit corporations come from § 4-28 (the Arkansas Nonprofit Corporation Act) and § 4-33 (the modern Nonprofit Corporation Act). Together, those acts require: directors elected by the membership (§ 4-28-211(a)); each member to have a vote (§ 4-28-212(a)); voting rights generally (§ 4-33-721); cumulative voting and director removal (§ 4-33-725); removal of elected directors (§ 4-33-808). When § 14-20-108 is applied to a corporation that follows these rules, the constitutional delegation problem is avoided.

Article 4, § 2 of the Arkansas Constitution provides that "the powers of the government of the State of Arkansas shall be divided into three distinct departments." The Plant Board cases (2021) reaffirmed that the legislature cannot delegate the legislative power to set a fee or tax to a private entity that lacks democratic accountability.

This opinion's bottom line: § 14-20-108 works because subscription-style VFDs are member-elected nonprofits. The dues are essentially a private fee that the county collects as a service to the VFD. So long as the underlying corporate accountability is real, the board can adjust the rate within the scope of voter authorization.

Citations

• Ark. Code Ann. § 14-20-108 (volunteer fire department dues collected on property tax bills)
• Ark. Code Ann. § 14-20-108(a)(1)(B)(i)(a) (election process)
• Ark. Code Ann. § 14-20-108(a)(1)(B)(i)(c) (petition path)
• Ark. Code Ann. § 14-20-108(a)(1)(B)(i)(d) (listing on tax statements)
• Ark. Code Ann. § 4-28-211(a) (election of nonprofit directors)
• Ark. Code Ann. § 4-28-212(a) (member voting rights)
• Ark. Code Ann. § 4-33-721 (member voting entitlement)
• Ark. Code Ann. § 4-33-725 (cumulative voting and removal of directors)
• Ark. Code Ann. § 4-33-808 (removal of elected directors)
• Ark. Const. art. 4, § 2 (separation of powers)
• Monsanto Co. v. Ark. State Plant Bd., 2021 Ark. 103, 622 S.W.3d 166
• McCarty v. Ark. State Plant Bd., 2021 Ark. 105, 622 S.W.3d 162
• Op. Att'y Gen. 2013-008
• Op. Att'y Gen. 2008-134
• Op. Att'y Gen. 2002-032
• Op. Att'y Gen. 96-114

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked official source is authoritative.

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2022-013

May 20, 2022

The Honorable Joshua P. Bryant
State Representative
P. O. Box 718
Rogers, AR 72757-0718

Dear Representative Bryant:

This is in response to your request for an opinion concerning the authority of volunteer fire departments using Ark. Code Ann. § 14-20-108 (Supp. 2021) for the collection of their dues to raise those dues. As background for your request, you state:

Arkansas Code § 14-20-108 provides a mechanism to have a county "collect and remit to [a] volunteer fire department the annual dues charged by the volunteer fire department . . . ." The statute provides that when a quorum court receives a request from a volunteer fire department to have the county collect and remit their dues "the quorum court shall call for an election on the issue of the levy of the volunteer fire department dues on each residence and on each business having an occupiable structure." Ark. Code § 14-20-108(a)(1)(B)(i)(a).

The statute also provides that if the levy of the volunteer fire department dues is approved by a majority of the voters, "the volunteer fire department dues shall be listed annually on real property tax statements and collected by the county collector at the same time and in the same manner as real property taxes." Ark. Code § 14-20-108(a)(1)(B)(i)(d).

Given the foregoing, you have asked the following questions:

1. If the levy of volunteer fire department dues is presented to and approved by the voters, may the volunteer fire department raise those dues without submitting the issue to the voters again?

2. If the answer to Question 1 is yes, may the county continue to collect and remit the dues of the volunteer fire department without submitting the issue to the voters again?

3. Would the answer to Questions 1 and 2 be different if the issue presented to and approved by the voters listed a specific amount to be charged as the dues by the volunteer fire department?

RESPONSE

The answer to all three of your questions is yes. If the measure approved by voters lists a specific rate, then only that rate may be assessed. If, however, voters merely approve a general authorization, then a volunteer fire department organized as a private, nonprofit corporation with a board of directors held accountable by the service area's members, via regular elections, may raise the dues.

For purposes of answering your questions, I assume that you are asking about a situation where the procedures described in subdivision 14-20-108(a)(1)(B)(i)(a) or subdivision 14-20-108(a)(1)(B)(i)(c) have been followed. Under either provision, voters have been asked to determine whether a fire department's dues should be levied "on each residence and on each business having an occupiable structure" in the fire department's boundaries. If approved, then a fire department's dues would be "listed annually on real property tax statements and collected by the county collector at the same time and in the same manner as real property taxes." Such departments are also presumably organized as private, nonprofit corporations, and as such, their governing boards are elected and accountable to the service area's members.

With that understanding, whether an additional vote is required to increase dues will depend on the initial authorization. If the measure approved by voters set a specific rate for the volunteer fire department's dues, then only that rate may be "listed annually on real property tax statements and collected by the county." Any greater rate would exceed what the voters authorized, and that means that any rate increase would need to be specifically approved by voters pursuant to the same process.

By contrast, if the measure approved by voters is silent as to the rate of the dues, then generally speaking, the measure would not need to be directly submitted for reapproval. That is because, unlike in the scenario above, such an increase would not exceed the original authorization. That said, it is not the case that the service area's members would be left without recourse in the event of an increase. Instead, under Arkansas law, the department's board members, who set the dues, must be regularly elected and subject to removal by the service area's members, such that they can be held accountable for their decision-making.

Accordingly, it is my opinion that once voters have authorized the levying and listing of volunteer fire department dues on property tax statements, there is generally no need to resubmit the issue to voters each time the dues are raised unless the initial authorization set a specific rate for those dues.

Sincerely,

LESLIE RUTLEDGE
Attorney General

Footnotes:
1. Subdivision 14-20-108(a)(1)(B)(i)(a) requires a quorum court that has received a signed and filed request from a volunteer fire department to "call for an election on the issue of the levy of the volunteer fire department dues on each residence and on each business having an occupiable structure." Subdivision 14-20-108(a)(1)(B)(i)(c) allows the quorum court to dispense with the election if "an attested petition is filed with the county clerk and signed by a majority of registered voters in the volunteer fire department district voting in the immediately preceding general election." In either case, if the measure is approved, the dues are "listed annually on real property tax statements . . . ." Ark. Code Ann. § 14-20-108(a)(1)(B)(i)(d).
2. Ark. Code Ann. § 14-20-108(a)(1)(B)(i)(a).
3. Id. at § 14-20-108(a)(1)(B)(i)(d).
4. "Volunteer fire departments" may assume several different forms. See Ops. Att'y Gen. 2008-134, 96-114 (listing the various entities that may be referred to as "volunteer fire departments"). But this office has frequently noted that section 14-20-108 appears to be directed at volunteer fire departments organized as private, nonprofit corporations, or so-called "subscription" fire departments. See, e.g., Ops. Att'y Gen. 2013-008, 2008-134, 2002-032.
5. See Ark. Code Ann. §§ 4-28-211(a), 4-28-212(a), 4-33-721, 4-33-725, 4-33-808.
6. If that were not the case, section 14-20-108 would run afoul of Article 4, section 2 of the Arkansas Constitution by unlawfully delegating to a private entity the legislative power to impose a fee or tax. See generally Monsanto Co. v. Ark. State Plant Bd., 2021 Ark. 103, 622 S.W.3d 166; McCarty v. Ark. State Plant Bd., 2021 Ark. 105, 622 S.W.3d 162.