Can a state constitutional officer pay one employee above the line-item salary cap as long as the total payroll stays within the office's overall appropriation?

Plain-English summary

State Senator Jimmy Hickey asked the AG about an Arkansas Legislative Audit finding: 29 employees in the Office of the Attorney General were paid in excess of their line-item salary appropriations under Act 47 of 2020, the appropriation bill for the OAG. Audit treated this as a violation of Ark. Const. art. 16, § 4. The senator's question: can a constitutional officer pay individual employees above the line-item cap as long as the office stays within its overall salary appropriation?

The AG's answer is no, with three layers of authority converging on the same conclusion.

Layer 1: The constitutional text. Ark. Const. art. 16, § 4 has three operative clauses:
- Clause 1: The General Assembly fixes salaries and fees of all officers in the state.
- Clause 2: "[N]o greater salary or fee than that fixed by law shall be paid to any officer, employee, or other person."
- Clause 3: "[T]he number and salaries of the clerks and employees of the different departments of the State shall be fixed by law."

The AG focused on clause 2's singular language. "Any officer, employee, or other person" cannot be paid more than the General Assembly authorized, regardless of aggregate compliance. The AG noted the absurdity of the alternative: a single employee could be paid $1 million more than the line-item maximum if the rest of the office stayed underpaid.

Layer 2: Arkansas Supreme Court precedent. Mackrell (1947) said the purpose of art. 16, § 4 is "to prevent the expenditure of people's tax money without their consent." Abbott v. Spencer (1990) treated salary-fixing as a separation-of-powers issue: only the legislative branch can fix salaries. Gipson v. Ingram (1949) extended the rule to non-treasury funds (cash funds, donations, federal funds): the source of the money does not matter. The constitutional cap applies to all sources.

Layer 3: Statutes. Two parallel schemes cover all state employees:
- The Uniform Classification and Compensation Act (UCCA) at A.C.A. §§ 21-5-201 et seq. covers most state employees and bars paying above the maximum pay level for the assigned class. § 21-5-204(a) exempts most constitutional officers from the UCCA.
- The Regular Salaries Procedures and Restrictions Act (RSPRA) at A.C.A. §§ 19-4-1601 et seq. and §§ 21-5-101 et seq. covers constitutional officers (and others). § 19-4-1601(b)(2) bars paying above the line-item maximum. § 19-4-1611 confirms this even when payment combines state-appropriated funds and agency cash funds, with the aggregate not to exceed the maximum.

The RSPRA recognizes six narrow exceptions in § 19-4-1607(b) where "remuneration paid...may exceed the maximum annual salary":
1. Overtime payments.
2. Lump-sum payments to departing employees under § 19-4-1613.
3. Payment for overlapping payment periods at year-end.
4. Payment for biweekly pay periods.
5. Career-service recognition under § 21-5-106.
6. Payments under "special language salary provisions" in the appropriation bill.

These six are payments, but the statute carefully states they "shall not be construed as payment for services or as salary as contemplated by Arkansas Constitution, Article 16, § 4." The General Assembly excluded them from the constitutional cap by design. None applied to the Audit finding.

Six prior AG opinions across 50 years (most recently 2017-080 by AG Rutledge) reach the same conclusion, plus 30 more opinions referencing § 16-4 without contradicting the rule.

The bottom line: aggregate-compliance is not a defense to individual-line-item violations. Constitutional officers must compensate each employee within the General Assembly's authorized maximum for that line item.

What this means for you

Constitutional officers and their HR/payroll teams

Three operational implications:

1. Set up payroll controls by line item, not just by aggregate appropriation. Each employee's pay must be checked against the specific line-item maximum for that position.

2. The six § 19-4-1607(b) exceptions are not loopholes for routine over-pay. They are narrow categorical carve-outs that the General Assembly designed to be excluded from the cap. Trying to recharacterize routine pay as "career-service recognition" or "biweekly overlap" to escape the cap is a misuse of the statute.

3. If you discover historical over-payments, document them promptly and consult Audit or counsel. Restitution and corrective payroll action may be needed; the people who received the over-payments may have to repay.

Arkansas Legislative Audit

This opinion supports Audit's finding pattern. When you flag a constitutional-officer agency for line-item violations, the response that "we stayed under the aggregate cap" is not a legal defense. Continue to flag both individual line-item overages and aggregate overages.

State legislators on appropriations committees

Two practical points:

1. If you want a constitutional officer's office to have flexibility within an aggregate cap, the path is "special language salary provisions" in the appropriation bill itself, not a regulatory or judicial workaround. § 19-4-1607(b)(6) treats those special-language payments as carved out of the cap.

2. Line-item maxima you set in appropriation acts are constitutional limits, not advisory targets. Setting them too low forces salary stagnation; setting them too high reduces accountability. The aggregate-cap-only approach is unconstitutional, so this dial is the only legitimate one.

State employees who received over-line-item pay

If you are a state employee who received pay above your line-item maximum, you may face a clawback or repayment demand depending on the agency's response and Audit's recommendations. The constitutional violation is the agency's, but the remedy may include adjusting your future pay or requiring repayment of overages. Coordinate with your union representative and personal counsel.

Public finance attorneys advising state agencies

Use the three-layer framework (constitutional, case law, statutes) when advising on compensation questions. Cite Mackrell, Gipson, and Abbott v. Spencer for the constitutional doctrine. Cite the UCCA and RSPRA frameworks together because together they cover all state employees. The six § 19-4-1607(b) exceptions deserve careful reading; they are narrow and easily over-read.

Constitutional officer offices that pay employees from a mix of state and federal funds

Gipson v. Ingram and Op. 2008-063 are explicit: federal funds, cash funds, settlement funds, and donations are all subject to the constitutional cap when paid as compensation to state employees. The source of the money does not authorize over-cap pay. The aggregate of all sources cannot exceed the line-item maximum for any given employee.

News reporters covering state agency salaries

When agency salary lists show employees above the line-item maximum, the question for the agency is: which of the six § 19-4-1607(b) exceptions applies? If none, the payment may be unconstitutional. Audit findings against constitutional officers are public records and a useful starting point.

Common questions

What is a "line-item appropriation"?
The General Assembly appropriates funds to state agencies in line items, typically with a maximum salary specified for each position. The line-item maximum is the cap for that specific position.

What if the General Assembly's line-item maximum is unrealistically low?
The remedy is amendment of the appropriation act, not over-cap payment. Constitutional officers can request increased line-item maxima during the next session. Until amended, the cap binds.

Can the office pay bonuses?
Career-service recognition under A.C.A. § 21-5-106 is one path that is carved out of the constitutional cap (per § 19-4-1607(b)(5)). Generic merit bonuses without statutory authorization are not.

Can the office pay overtime?
Yes. Overtime is one of the six § 19-4-1607(b) exceptions. But overtime must be properly classified (FLSA-eligible, hours-worked-based) and not be a vehicle for over-cap routine pay.

Does this affect elected constitutional officers' own salaries?
The opinion focuses on staff compensation. Elected constitutional officers' own salaries are typically set by separate constitutional and statutory provisions and follow their own analysis. But the same principle applies: only the General Assembly fixes salaries.

What if the line item is silent on a particular position?
The position is not authorized. Payment without an appropriation violates Ark. Const. art. 5, § 29 ("no money shall be drawn from the treasury except in pursuance of specific appropriation made by law").

Has any AG ever opined the other way?
The current AG checked. None of the 36 prior opinions referencing art. 16, § 4 supports the aggregate-only interpretation. Six expressly reject it.

Background and statutory framework

Constitutional rules:
- Ark. Const. art. 16, § 4: General Assembly fixes salaries; no greater pay than fixed by law to any officer, employee, or person; the number and salaries of department clerks/employees fixed by law.
- Ark. Const. art. 5, § 29: no money drawn from treasury without specific appropriation.
- Ark. Const. art. 16, § 12: no money paid out of treasury until appropriated.
- Ark. Const. art. 4, § 2: separation of powers.
- Ark. Const. art. 19, § 31: a narrow exception governing certain salaries.

Case law:
- Dir. of Bureau of Legislative Research v. Mackrell, 212 Ark. 40, 204 S.W.2d 893 (1947): purpose of art. 16, § 4 is to prevent unauthorized tax expenditure.
- Abbott v. Spencer, 302 Ark. 396, 790 S.W.2d 171 (1990): separation of powers, salaries are legislative.
- Gipson v. Ingram, 215 Ark. 812, 223 S.W.2d 595 (1949): cap applies to non-treasury funds (cash funds, federal funds, donations).

Uniform Classification and Compensation Act (UCCA):
- A.C.A. §§ 21-5-201 et seq.: covers most state employees with class-based pay grades.
- A.C.A. § 21-5-209(b)(1): no employee paid above class maximum.
- A.C.A. § 21-5-204(a): exempts most constitutional officers from UCCA.

Regular Salaries Procedures and Restrictions Act (RSPRA):
- A.C.A. §§ 19-4-1601 et seq. and §§ 21-5-101 et seq.: applies to constitutional officers.
- A.C.A. § 19-4-1601(b)(2): line-item maximum binds.
- A.C.A. § 19-4-1601(b)(3)(C): no compensation above maximum from any source.
- A.C.A. § 19-4-1611: combined state/cash funds cannot exceed maximum.
- A.C.A. § 19-4-1607(b): six exceptions:
1. Overtime.
2. Lump-sum payments to departing employees under § 19-4-1613.
3. Payment for overlapping payment periods at year-end.
4. Payment for biweekly pay periods.
5. Career-service recognition under § 21-5-106.
6. Special language salary provisions.

Underlying audit context:
- Act 47 of 2020: appropriation bill for the OAG covering the audit period. The 29 employees were paid in excess of line-item maxima under Act 47.

Prior AG opinions (consistent with this conclusion): 2017-080, 2008-186, 2008-118, 2008-063, 2004-209, 1977-053, plus 30 others referencing art. 16, § 4 (none contrary).

Citations

• Ark. Const. art. 16, § 4 (salary fixing)
• Ark. Const. art. 5, § 29 (specific appropriation required)
• Ark. Const. art. 16, § 12 (treasury draws require appropriation)
• Ark. Const. art. 4, § 2 (separation of powers)
• A.C.A. §§ 19-4-1601, 1607(b), 1611, 1613 (RSPRA)
• A.C.A. §§ 21-5-101 et seq. and 21-5-201 et seq. (RSPRA, UCCA)
• A.C.A. § 21-5-204(a) (UCCA exemptions)
• A.C.A. § 21-5-209(b)(1) (UCCA pay grade limits)
• A.C.A. § 21-5-106 (career-service recognition)
• Act 47 of 2020 (OAG appropriation)
• Mackrell, 212 Ark. 40, 204 S.W.2d 893 (1947)
• Abbott v. Spencer, 302 Ark. 396, 790 S.W.2d 171 (1990)
• Gipson v. Ingram, 215 Ark. 812, 223 S.W.2d 595 (1949)

Source

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

Original opinion text

Opinion No. 2023-004
February 15, 2023
The Honorable Jimmy Hickey, Jr.
State Senator
3216 East 35th Street
Texarkana, Arkansas 71854

Dear Senator Hickey:

I am writing in response to your request for an official opinion regarding a finding by Arkansas Legislative Audit. You report that Legislative Audit found that "[t]wenty-nine employees [of the Office of the Attorney General] were paid in excess of the line-item salary appropriation, per Act 47 of 2020" and that this overpayment was "in conflict with Ark. Const. Article 16, § 4." Given this finding, you ask "whether a constitutional officer of the State of Arkansas can compensate an employee in excess of a line-item salary appropriation." And you ask that I "specifically address whether a constitutional officer" may pay an employee more than the line-item appropriation "so long as the constitutional officer does not exceed the office's total appropriation...."

RESPONSE

In my opinion, the answer to your question is "no." The scenario you describe violates Arkansas constitutional and statutory law. When the people of Arkansas ratified our current constitution, they chose to give the General Assembly the sole authority to set the number and salaries for all state employees, both collectively and individually. The alternative view is both contrary to law and leads to the absurd result that a single employee could be paid $1 million more than the employee's line-item maximum as long as the sum of the remaining employees' pay stayed within the constitutional office's aggregate salary cap. This faulty interpretation would give constitutional officers unfettered discretion regarding compensation.

DISCUSSION

My conclusion is supported by art. 16, § 4 of our state constitution, both its text and the related caselaw from the Arkansas Supreme Court. In addition, two Arkansas statutes prevent constitutional officers from exceeding individual line-item maximums. Finally, both the constitutional and statutory limitations have been noted in numerous formal opinions by past Arkansas Attorneys General spanning 50 years, including one in 2017 by my predecessor.

I. The Constitutional Limits on Compensation

The text of art. 16, § 4 of our state constitution prohibits the scenario you describe. The clarity of the text of our constitution has also generated consistent caselaw from the Arkansas Supreme Court and consistent opinions from past Arkansas Attorneys General.

A. The Text of Article 16, Section 4

Article 16, § 4 of the Arkansas Constitution contains three clauses regarding who has authority to set salaries for state officials and employees:

[1] Except as provided in Arkansas Constitution, Article 19, § 31, the General Assembly shall fix the salaries and fees of all officers in the State; and [2] no greater salary or fee than that fixed by law shall be paid to any officer, employee, or other person or at any other rate than par value; and [3] the number and salaries of the clerks and employees of the different departments of the State shall be fixed by law.

The second and third clauses determine the answers to your questions. Clause three requires the General Assembly to "fix by law" the number of state employees and their salaries. Clause two prohibits public employers, including constitutional officers, from compensating "any officer, employee, or person" more than the General Assembly has allowed. These two clauses prevent the scenario your question describes. And clause two's use of the singular (i.e., "any officer, employee, or other person") shows that no single employee may be compensated more than the line-item maximum, regardless of whether the constitutional office stays within its aggregate salary cap.

Therefore, the text of art. 16, § 4 shows that the scenario outlined in your question violates the constitution.

B. Arkansas Supreme Court Caselaw

Several decisions by the Arkansas Supreme Court support the foregoing analysis. The Court has held that the purpose of art. 16, § 4 is "to prevent the expenditure of people's tax money without their consent," which is expressed indirectly through their elected representatives. In addition, the Court has declared that fixing maximum salaries is a separation-of-powers issue:

The Constitution of the State of Arkansas provides for three separate but equal branches of government.... The legislative branch is to fix the amount of salaries. Ark. Const. Art. 16, § 4. One branch of government shall not exercise any power belonging to another branch, except as expressly permitted by the constitution. Ark. Const. Art. 4, § 2.

For purposes of your question, the Court's relevant cases can be divided into two groups depending on the source of the funds that exceeded a given employee's line-item maximum: (1) moneys derived from tax revenue held in the state treasury; or (2) moneys that are held by the public employer and never routed through the state treasury (e.g., cash funds, settlement funds, donations, or federal funds). Under the first scenario, where the employer uses authorized funds in the state treasury, several constitutional provisions prohibit the employer from paying more that the line-item maximum. Under the second scenario, where the source of the excess compensation derives from money held by the public employer, the Court has also said that art. 16, § 4 prevents the employee from being paid more than the line-item maximum.

In summary, the Court has consistently held that, whatever the source of moneys used to compensate a state employee, the compensation cannot exceed the maximum allowed by the General Assembly.

C. Arkansas Attorney General Opinions

My conclusion is also supported by several past opinions from the Office of the Arkansas Attorney General. This office has referenced art. 16, § 4 of the Arkansas Constitution 36 times. None of those opinions supports the view that a constitutional officer has discretion to pay his or her employee more than the maximum set by the General Assembly. And at least six of those opinions expressly state that art. 16, § 4 prevents a public employer from paying more than the line-item maximum salary for a single employee:

• Opinion No. 2017-080: When writing to a state employer that is exempt from the Uniform Class and Compensation Act (which is discussed below), my predecessor noted that the employer could provide pay raises for individual employees as recognition for additional certifications, advanced education, hazardous duty, etc. but not "to such a degree that its employees '[receive] a greater salary than fixed by the Legislature.'"

• Opinion No. 2008-186: Observing that under "Ark. Const. art. 16, § 4," when "the Legislature fixes the maximum annual salary of an employee, then no state agency or institution may" use any funds, whether derived from tax dollars or cash funds, to pay the employee more than the "salary so fixed by the Legislature."

• Opinion No. 2008-118: Concluding that "cash funds" may "not be used to exceed the...applicable appropriation act" that sets the salaries for certain public employees.

• Opinion No. 2008-063: Concluding that, under art. 16, § 4, new state employees in a drug court could not be paid more than the amount set by the General Assembly's appropriation, even though the new employees' salaries would be paid with federal funds.

• Opinion No. 2004-209: Noting that art. 16, § 4 "exclusively authorizes the General Assembly to determine the number of employees of each department and their salaries."

• Opinion No. 1977-053: Concluding that, under the facts of the opinion request, art. 16, § 4 "effectively precludes the payment of overtime to an employee where such payment would cause the total salary to exceed the authorized maximum annual salary for the category or line item position of such an employee...."

Given the clarity of art. 16, § 4's text and relevant caselaw, and the consistent conclusions of my predecessors, it is my opinion that the constitution prohibits the scenario your question describes.

II. The Statutory Limits on Compensation

The scenario you describe also violates Arkansas statutory law. Existing statutes prohibit constitutional officers from paying their employees more than the line-item maximums established by the General Assembly. That same set of statutes also excludes six kinds of payments from the employees' line-item salary caps.

A. The Line-Item Caps

Two sets of statutes, which jointly cover all state employees, prohibit them from being paid more than their individual line-item maximums. While the Uniform Classification and Compensation Act ("UCCA"), codified at A.C.A. § 21-5-201 et seq., expressly prohibits covered employers from paying employees more than the General Assembly has authorized, most constitutional officers are exempt from the UCCA. Nevertheless, constitutional officers are subject to a different statutory scheme, the Regular Salaries Procedures and Restrictions Act ("RSPRA"), that contains the same prohibition.

Under the RSPRA, when "a maximum pay level is set out in dollars" for any state employee in "any position authorized by the General Assembly for the benefit of any department," then "it is the intent of the General Assembly that the position is to be paid at a rate of pay not to exceed the maximum established for the position during any" fiscal year. While the RSPRA allows covered state employees to be paid partly from tax revenues and partly from cash funds, the total payment cannot exceed the individual line-item maximum:

When the General Assembly shall have established by law the maximum annual salaries for certain positions for any state agency and shall have appropriated for those positions, no greater salary than that established by law shall be paid to any person occupying the position....However, the salaries may be paid partly from state-appropriated funds and partly from agency bank funds, but the aggregate of the payments shall not exceed the maximum annual salary rate, where it is established by law.

The foregoing two provisions of the RSPRA, which are entirely independent of the UCCA, indicate that constitutional officers cannot pay employees more than their individual line-item maximums, regardless of whether the office stays under its aggregate salary cap.

B. Payments Excluded from the Caps

Yet the RSPRA also provides for six instances, none of which apply here, in which "remuneration paid to an employee of the state may exceed the maximum annual salary as authorized by the General Assembly." The RSPRA carefully notes that these exceptions "shall not be construed as payment for services or as salary as contemplated by Arkansas Constitution, Article 16, § 4." The six exceptions are: (1) overtime payments; (2) lump-sum payments owed to a departing employee under A.C.A. § 19-4-1613; (3) payment for overlapping payment periods at the end of the fiscal year; (4) payment for biweekly pay periods; (5) payment for career-service recognition under A.C.A. § 21-5-106; and (6) payments "in accordance with special language salary provisions" in a given public employer's appropriation bill. The General Assembly is, of course, free to increase or decrease the number or scope of these exceptions.

Employees who are already at their line-item maximums and who receive any of these six kinds of payments will receive more money during the fiscal year than their line-item caps allow. But since the General Assembly has already foreseen this and excluded these payments from the caps, these additional payments are not considered excess salary and do not violate art. 16, § 4's requirement that the General Assembly set the compensation for all state employees.

Nevertheless, since none of these six kinds of payments apply here, the RSPRA provides an additional, and independent, basis for my conclusion.

III. Conclusion

In conclusion, I have not found any support for the view that constitutional officers have discretion to compensate their employees more than the General Assembly has authorized. Given the text of our state constitution, the Arkansas Supreme Court's jurisprudence, and existing state statutes, I agree with my predecessors that constitutional officers cannot pay an employee more than the maximum set by the General Assembly.

Deputy Attorney General Ryan Owsley prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General