Can an Arkansas constable join the state employees' retirement system, and can a state employee accrue extra retirement credit for serving as a constable?
Plain-English summary
State Senator Mark Johnson asked five linked questions about whether constables can be members of the Arkansas Public Employees Retirement System (APERS). The AG answered each with a careful analysis grounded in the APERS statutory definitions.
The threshold question: is a constable an "employee" within the meaning of the APERS statutes? The AG said no.
A.C.A. § 24-4-101(17) defines "employees" as officers and employees of any "office, agency, board, commission...or department of a public employer" whose compensation is paid from public-employer funds. "Public employer" is the State of Arkansas or a "participating public employer." "Participating public employer" is defined as a list of specific entities (counties, municipalities, certain regional and water authorities, and similar bodies) "whose employees are included in the membership of [APERS]."
A constable does not fit. Under Ark. Const. art. 7, § 47, constables are elected by townships, not by counties or municipalities. They are constitutionally and statutorily designated as township officers, not county or municipal officers. The Arkansas Supreme Court confirmed this in Clowers v. Edwards, 2020 Ark. 367, citing both art. 7, § 47 and the County Government Code's exclusion of constables from the alternative-county-government scheme. A constable might receive compensation from a county under A.C.A. § 14-14-1205(d), but that does not make the constable an employee of the county for APERS purposes. The constable's authority is limited to the township under A.C.A. § 16-19-301(a).
So:
- Question 1 (eligibility): No. A constable is not an APERS-eligible "employee."
- Question 2 (unpaid constable): No, the answer is the same regardless of whether the constable is paid. Compensation does not transform a non-eligible office into an eligible one.
- Question 3 (concurrent state employee plus constable): No effect. The state-employee role gives APERS membership; the constable role does not.
- Question 3a (concurrent service credit for constable role): No. APERS Rule 204 says concurrent service stacks only across "separate, eligible positions." A non-eligible position contributes nothing.
- Question 4 (one year of service per year of state employment): Substantially yes. A.C.A. § 24-4-507 credits service based on hours: 80+ hours in a month equals one month of service. A state employee in continuous service generally accrues one month of credit per month, twelve months per year.
- Question 5 (double credit for state employee plus constable): No. See Question 3.
The takeaway is straightforward: constable is not an APERS-eligible position, and adding a constable role to a state employee's other employment does not stack additional retirement credit.
What this means for you
Sitting and aspiring constables
You will not accrue APERS service credit for your time as a constable. If you also work for a state agency, county, municipality, or other APERS-participating employer in a separate position, that separate position carries APERS credit; the constable role does not.
If your retirement planning depends on APERS credit, your constable-only service does not contribute. Consider whether other retirement vehicles (e.g., personal IRAs, deferred comp through a separate employer) make sense.
County quorum courts setting constable compensation
Compensation under A.C.A. § 14-14-1205(d) is the county's discretion, but it does not bring the constable into APERS. If you want to reward or recruit constables, increased pay is the lever; APERS access is not on the table without statutory amendment by the General Assembly.
State employees serving as elected constables
Your state-employment APERS credit accrues normally. Your constable service does not stack additional credit. If you are doing retirement-eligibility math, count only the state-employee months toward APERS service credit.
APERS administrators receiving membership applications
Reject applications based solely on constable service. The threshold definition of "employee" is not met. Applications based on dual-service (state employee + constable) are accepted only for the state-employee portion.
State legislators considering constable retirement reform
The current statute defines APERS eligibility to exclude constables by virtue of the township-officer classification and the limited list of "participating public employer" entities. To add constables, the General Assembly would need to amend the definitional structure: either expand "participating public employer" to include townships, or treat constables specifically. There is no judicial workaround.
Municipal/county law attorneys advising constables
Be specific in retirement planning advice. Constables often ask about retirement benefits assuming county-employee parity. The statutory framework treats them differently. Refer them to private retirement vehicles or, if they have other public-employer service, to the proper credit calculation under that role.
County clerks processing constable filings
The opinion confirms the township-officer classification. Filing and oath procedures track township-officer rules. The county may have a payroll relationship with the constable for compensation purposes (under § 14-14-1205(d)) but not the employer-employee relationship that triggers APERS coverage.
Common questions
Why isn't a constable an "employee" if the county pays them?
The county can compensate a constable under A.C.A. § 14-14-1205(d), but that does not make the constable an "officer or employee" of the county for APERS purposes. The constable's office is a township office under Ark. Const. art. 7, § 47, separate from county officers. APERS coverage tracks the office, not the source of pay.
What is the difference between county officers and township officers?
County officers (sheriff, county judge, county clerk, assessor, treasurer, coroner, surveyor, tax collector, justices of the peace) are listed in art. 7, § 53. Constables are township officers under art. 7, § 47. Townships are subdivisions of counties but have their own elected officer (constable) with limited township-wide authority.
Can constables join any retirement system?
Not through their constable service alone, under current Arkansas law. Some constables may have private retirement plans, IRAs, or coverage through a separate qualifying employer. Statutory amendment would be needed to provide APERS or other state-system coverage.
Does this opinion change if the constable is a sworn law-enforcement officer?
The constable is already a peace officer under A.C.A. § 16-19-301(a). The peace-officer status does not create APERS eligibility on its own. Different retirement systems exist for some categories of law-enforcement (LOPFI for certain municipal LE), but constables are not generally covered.
How is APERS service credit calculated for state employees?
Under A.C.A. § 24-4-507, an employee with 80+ hours of service in a month is credited with one month. Twelve months in a year of continuous service generally yields one year of credit.
What is "concurrent service" in APERS?
APERS Rule 204 allows an employee with two separate eligible positions to combine the service for benefit-calculation purposes. The benefit for each position is computed separately and added together. The rule requires both positions to be eligible. Constable is not eligible, so no concurrent stacking.
Is this rule the same in other states?
Each state's retirement system has its own definitional structure. Some states cover township officers; some do not. This opinion addresses Arkansas APERS only.
Background and statutory framework
Constitutional and statutory framework:
- Ark. Const. art. 7, § 47: each township elects a constable for a two-year term.
- A.C.A. § 14-14-604(3): excludes constables from the County Government Code's "alternative county government" scheme as township officers.
- A.C.A. § 14-14-1205(d): authorizes county quorum court to fix constable compensation.
- A.C.A. § 16-19-301(a): each constable is a conservator of the peace within his township.
APERS framework:
- A.C.A. § 24-4-101(2): definitions including "actual service."
- A.C.A. § 24-4-101(17): definition of "employees" for APERS eligibility.
- A.C.A. § 24-4-101(29): definition of "participating public employer."
- A.C.A. § 24-4-101(31): definition of "public employer."
- A.C.A. § 24-4-301: APERS membership.
- A.C.A. § 24-4-507: service credit calculation (80+ hours = one month).
APERS Rules:
- Official Rules of the Board of Trustees, Rule 204 (revised May 2022): concurrent service across separate eligible positions.
Case law:
- Clowers v. Edwards, 2020 Ark. 367: constables are township officers.
Prior AG opinion:
- Op. Att'y Gen. 93-017: constables' authority limited to township.
Citations
- Ark. Const. art. 7, § 47 (election of constables)
- A.C.A. §§ 14-14-604(3), 14-14-1205(d), 16-19-301(a) (constable compensation, township-officer status)
- A.C.A. §§ 24-4-101(2), (17), (29), (31), 24-4-301, 24-4-507 (APERS framework)
- Clowers v. Edwards, 2020 Ark. 367 (constables are township officers)
- APERS Rule 204 (concurrent service)
Source
Original opinion text
Opinion No. 2022-020
October 12, 2022
The Honorable Mark Johnson
State Senator
P.O. Box 241022
Little Rock, AR 72223
Dear Senator Johnson:
This is in response to your request for my opinion on the following questions concerning constables and the Arkansas Public Employees Retirement System (APERS):
- Is a constable eligible to be a member of APERS?
- If the constable is not paid for the position, does this have an effect in the matter?
- Does the fact that a constable is simultaneously employed by the State of Arkansas and an APERS member due to their state employment have an effect in the matter?
a. Could a person in this situation accrue service credit in APERS for their concurrent service as a constable? - Does a state employee who is an APERS member accrue one year of service for each year employed?
- Does a state employee who is a member of APERS and simultaneously serving as an elected constable accrue two years of service for each year employed?
RESPONSE
A constable does not appear to qualify as an "employee" under the applicable statutory definitions governing APERS, regardless of whether the constable is paid for the position. Accordingly, the answer to both Questions 1 and 2 is "no." The answer to Question 3, including subpart (a), is also "no." In response to Question 4, state employees generally receive service credit for "actual service" at the rate of one month for each month of service. The answer to Question 5 is "no."
DISCUSSION
Question 1: Is a constable eligible to be a member of APERS?
Eligibility for membership in APERS is governed by Ark. Code Ann. § 24-4-301 (Supp. 2021). Because constables plainly are not "state employees," I believe the issue is whether constables qualify as "nonstate employees." Subsection 24-4-301(d) provides that "[a]ll nonstate employees, as defined in § 24-4-101(17), (22), (27), and (33), who are in the employ of a nonstate employer as of the date the nonstate employer becomes a participating public employer...shall become members of the system...."
Looking to the definitions referenced in the above-quoted subsection 24-4-301(d), I believe the issue can be further broken down to the threshold question whether constables qualify as "employees." Subsection 24-4-101(17) defines "employees" in pertinent part as follows:
"Employees" means all officers and employees of any office, agency, board, commission, including the Department of Higher Education, or department of a public employer whose compensations were or are payable from funds appropriated by the public employer and all otherwise eligible employees whose compensations were or are payable in whole or part from federal funds....
The term "employees" thus encompasses officers and employees. And more specifically, to qualify for participation in APERS, constables must be "officers" or "employees" of an "office, agency, board, commission,...or department of a public employer" and receive compensation from the "public employer." The term "public employer" is defined as "the State of Arkansas or any participating public employer." "Participating public employer" is defined to include the following:
Any county, municipality, rural waterworks facilities board, regional airport authority, border municipal airport authority, public facilities board, regional solid waste management board, joint county and municipal sanitation authority, suburban improvement district under § 14-92-502, public water authority, or regional water distribution board in the state whose employees are included in the membership of the Arkansas Public Employees' Retirement System[.]
Constables are not officers or employees of any "office, agency, board, commission,...or department of" a county or municipality, or of any other entity identified as a "participating public employer" above. Constables are peace officers elected by townships pursuant to Ark. Const. art. 7, § 47, which provides that "[t]he qualified electors of each township shall elect the Constable for the term of two years...." A constable might receive compensation from a county. But constables are constitutionally and statutorily designated as township officers, distinct from county officers. A constable's authority is not countywide, but instead is generally limited to his own township.
In sum, constables are not eligible for membership in APERS because they do not qualify as "employees," as that term is defined in the relevant APERS statutes.
Question 2: If the constable is not paid for the position, does this have an effect in the matter?
No. A constable does not appear to qualify as an "employee" under the applicable statutory definitions governing APERS, regardless of whether the constable is paid for the position.
Question 3: Does the fact that a constable is simultaneously employed by the State of Arkansas and an APERS member due to their state employment have an effect in the matter?
a. Could a person in this situation accrue service credit in APERS for their concurrent service as a constable?
The answer to both of these questions is "no" because, for the reasons explained above, a constable cannot receive service credit in APERS. Concurrent service only applies if an employee earns service through separate, eligible positions.
Question 4: Does a state employee who is an APERS member accrue one year of service for each year employed?
Service is credited based on the number of hours of service in the month, with 80 or more hours of service credited as one month. State employees generally receive service credit for "actual service" at the rate of one month for each month of service.
Question 5: Does a state employee who is a member of APERS and simultaneously serving as an elected constable accrue two years of service for each year employed?
No. See my response to Question 3. As stated above, a constable is not eligible for membership in APERS and thus, service will not be credited for that position.
Sincerely,
LESLIE RUTLEDGE
Attorney General