Can a county justice of the peace serve on a school board at the same time?
Plain-English summary
State Senator Dan Sullivan asked the AG whether a justice of the peace (JP) can be elected to a school board while still holding the JP seat. The answer is no, with two layers of authority.
The constitutional layer is Ark. Const. art. 7, § 53, added by Amendment 95 in 2017. It bars a sitting JP (and nine other listed county officials, including county judge, sheriff, circuit clerk, county clerk, assessor, coroner, treasurer, county surveyor, and tax collector) from being "appointed or elected to any civil office in this state" during the term of the JP seat. The constitutional question is whether a school-board seat counts as a "civil office."
The Arkansas Supreme Court has not directly construed "civil office" under art. 7, § 53. But it has construed the same phrase under a parallel provision, art. 5, § 10, which applies to state legislators. In Williams v. Douglas, 251 Ark. 555 (1971), the court held that a school-board seat is a civil office, relying on out-of-state authority that school directors are public officers. Because art. 7, § 53 and art. 5, § 10 are nearly identical in language, the AG concluded the same reading governs JPs: a school-board seat is a civil office.
The statutory layer is A.C.A. § 14-14-115, enacted by Act 639 of 2019. It tracks the constitutional text and adds an explicit definition: "civil office" includes a member of a school board. So the statute removes any doubt.
A key feature of both rules: the prohibition is "during the term for which" the JP was elected. Resigning the JP seat does not solve the problem. Even after resignation, the prohibition continues for the rest of the original JP term. To serve on a school board, the person must wait until the JP term has expired.
The opinion also clarifies what changed in 2017 and 2019. Two earlier opinions (1999-249 and 1992-003) reached a contrary result, but both predated Amendment 95 (which added art. 7, § 53) and Act 639 of 2019 (which added A.C.A. § 14-14-115). Those older opinions are no longer good law. Three other prior opinions (2018-120, 2004-310, 2001-127, 1999-396) are consistent with this opinion and remain authoritative.
On penalties, A.C.A. § 14-14-1311 gives the circuit court jurisdiction to remove a county or township officer for incompetency, corruption, gross immorality, criminal conduct, malfeasance, misfeasance, or nonfeasance. There is no civil or criminal penalty for the dual office holding itself, just removal proceedings.
What this means for you
Sitting justices of the peace considering a school-board run
You cannot run for, accept appointment to, or be sworn into a school-board seat during the term for which you were elected as JP, even if you resign the JP seat first. Wait until the JP term ends. The same rule applies if your county elections happen to overlap school-board terms in ways that make the math unclear; cross-check the actual term dates.
The other nine constitutional officers under art. 7, § 53 (county judge, sheriff, circuit clerk, county clerk, assessor, coroner, treasurer, county surveyor, tax collector) are bound by the same prohibition and the same answer.
School-board candidates and existing school-board members
If a candidate currently holds one of the listed county offices, the candidate is ineligible during the overlapping term. School-board oaths administered to such a person create exposure under removal proceedings.
If you are already serving on a school board and are considering running for one of the county offices in art. 7, § 53, the prohibition runs the other direction too. The constitutional and statutory text bars election or appointment "to another civil office" during the county term, but the practical effect is the same: do not stack the two offices.
County election commissioners and county clerks
Process candidate filings with awareness of art. 7, § 53. If a sitting JP files for a school-board seat, the commission's role is administrative, but the candidate's eligibility is a legal question that may surface in a quo warranto or removal action later. Document the filing and let counsel advise on whether to flag the conflict at the candidate-eligibility stage.
Quorum courts and county counsel
Two operational implications. First, a JP elected to the school board mid-term is subject to removal under A.C.A. § 14-14-1311. The procedure is by information, presentment, or indictment in circuit court. Second, the quorum court itself has no internal mechanism to prevent the dual office holding. The matter goes through the courts.
Voters in JP and school-board races
When a candidate in either race holds the other listed office, the eligibility question is real. Even if the candidate wins, the seat may be subject to a removal action. Local press coverage that surfaces the conflict before the election is more useful than a post-election removal proceeding.
Municipal and school-district attorneys
A school-district attorney who learns that a sitting JP has been seated on a board should advise the board about A.C.A. § 14-14-1311 removal procedure and about decisions taken by a board with a removable member. Do NOT assume the dual-office defect is curable by resignation from the JP seat; the prohibition runs through the entire JP term.
Common questions
Does the prohibition stop me from running, or only from being elected?
The constitution and statute prohibit being "elected or appointed" during the term. Running and accepting election are both barred during the term. Filing as a candidate, then accepting the seat, would each fall within "elected."
Can I resign as JP and then take the school-board seat the next day?
No. The prohibition runs through the entire JP term, not just the period of actual JP service. The Williams v. Douglas reasoning, applied here, treats the conflict as time-bound by the term, not by service status.
What if I'm appointed to fill a JP vacancy and then run for school board?
The prohibition applies to "the term for which" you were elected or appointed. If you are filling an unexpired JP term, the prohibition runs through the end of that term.
Are there any exceptions for small towns or rural counties?
No. The prohibition is uniform across Arkansas counties.
What happens if I take both oaths anyway?
You become subject to removal under A.C.A. § 14-14-1311. Decisions made by the board with your participation could be subject to challenge. There is no automatic civil or criminal penalty, but the legal exposure to removal proceedings is real.
Does this prohibition apply to the other nine offices listed in art. 7, § 53?
Yes. The prohibition covers county judge, sheriff, circuit clerk, county clerk, assessor, coroner, treasurer, county surveyor, and tax collector. All ten offices are treated the same way.
Does this opinion supersede earlier AG opinions?
Yes for two earlier opinions: 1999-249 and 1992-003. Those reached different results but predated Amendment 95 (2017) and A.C.A. § 14-14-115 (2019). The opinion is consistent with 2018-120, 2004-310, 2001-127, and 1999-396.
Background and statutory framework
Constitutional rules:
- Ark. Const. art. 7, § 53 (added by Amendment 95, 2017): bars ten listed county officials from being appointed or elected to "any civil office in this state" during the term for which they were elected.
- Ark. Const. art. 5, § 10: parallel provision for state legislators. The Arkansas Supreme Court construed "civil office" in this provision to include a school-board seat in Williams v. Douglas, 251 Ark. 555, 473 S.W.2d 896 (1971).
Statutory rules (Act 639 of 2019):
- A.C.A. § 14-14-115(a)(1): codifies the constitutional prohibition.
- A.C.A. § 14-14-115(b)(1)(C): defines "civil office" to include a member of a school board.
Removal procedure:
- A.C.A. § 14-14-1311: circuit court jurisdiction to remove county or township officers for incompetency, corruption, gross immorality, criminal conduct, malfeasance, misfeasance, or nonfeasance in office.
Prior AG opinions cited:
- 2018-120: county coroner cannot serve on school board during coroner's term.
- 2004-310, 2001-127, 1999-396: similar dual-office analyses applying the same rule.
- 1999-249, 1992-003: earlier opinions reaching different results, now superseded.
Citations
- Ark. Const. art. 7, § 53 (county officer dual-office bar)
- Ark. Const. art. 5, § 10 (state legislator dual-office bar)
- A.C.A. § 14-14-115(a)(1) (codification of constitutional rule)
- A.C.A. § 14-14-115(b)(1)(C) (school-board member as civil office)
- A.C.A. § 14-14-1311 (removal procedure)
- Williams v. Douglas, 251 Ark. 555, 473 S.W.2d 896 (1971) (school-board seat is civil office)
- Ark. Att'y Gen. Op. 2018-120 (county coroner and school board)
- Ark. Att'y Gen. Ops. 2004-310, 2001-127, 1999-396 (consistent prior opinions)
- Ark. Att'y Gen. Ops. 1999-249, 1992-003 (superseded prior opinions)
Source
Original opinion text
Opinion No. 2023-005
February 24, 2023
The Honorable Dan Sullivan
State Senator
Post Office Box 19406
Jonesboro, Arkansas 72403-2406
Dear Senator Sullivan:
I am writing in response to your request for an opinion on a dual-office-holding issue. Your correspondence notes that art. 7, § 53 of the Arkansas Constitution bars sitting justices of the peace ("JPs") from holding another "civil office" during the term for which the JP has been elected. You also note that A.C.A. § 14-14-115 contains the same prohibition and defines a "civil office" to include a "member of a school board." With these laws in mind, you ask the following questions:
- May a justice of the peace be elected as a member of a school board of directors while maintaining the office of justice of the peace?
- If the answer is no, is there a penalty for holding both offices?
RESPONSE
If the JP's term of office would overlap with the term of office on the school board, then the JP would be ineligible to serve on the school board. While there is no civil or criminal penalty for this kind of dual office holding, the person holding both offices is subject to removal.
DISCUSSION
Question 1: May a justice of the peace be elected as a member of a school board of directors while maintaining the office of justice of the peace?
No, the kind of dual office holding your question describes is likely prohibited by our state constitution and certainly prohibited by state statute.
Article 7, § 53 of our state constitution prohibits justices of the peace (along with nine other elected, county officials) from being "appointed or elected to any civil office in this state" "during the term for which" the JP "has been elected." Therefore, the only question is whether a seat on a school board is a "civil office" within the meaning of art. 7, § 53.
While no appellate court has ruled on the meaning of "civil office" as that term appears in art. 7, § 53, the Arkansas Supreme Court has ruled on that term's meaning in a nearly identical context. In Williams v. Douglas, the Court was asked to decide whether, under art. 5, § 10, a state senator could serve as a member of a school board during the term for which he was elected to be a senator. Article 5, § 10 of the Arkansas Constitution uses language that is substantively identical to art. 7, § 53 and applies it to state legislators: "No Senator or Representative shall, during the term for which he shall have been elected, be appointed or elected to any civil office under this State." As with your question, the answer in Williams turned on whether a school-board seat is considered a "civil office." The Court collected several cases from other states showing that the general rule is that "school[-board] directors are 'public officers,'" which led the Court to hold that there was "no merit" in the assertion that a school-board seat was not a "civil office."
Given Williams's reasoning and the fact that art. 7, § 53 and art. 5, § 10 are nearly identical, it is my opinion that the term "civil office" in art. 7, § 53 also encompasses a school-board seat. Therefore, if a court were faced with your question, it would most likely hold that art. 7, § 53 prohibits a JP from serving on a school board during the term for which the person was elected to serve as a JP.
The same prohibition applies with even more clarity under statutory law. Under A.C.A. § 14-14-115(a)(1), someone "elected or appointed" to any of the county offices listed in art. 7, § 53, including the office of JP, is prohibited from being "elected or appointed to another civil office during the term for which he or she has been elected." The statute goes on to define "civil office" to include being a "[m]ember of a school board." Therefore, the kind of dual service your question contemplates violates Arkansas statutory law.
Under both the constitutional and statutory analyses, it would not matter whether the JP resigned from his or her JP position to serve on the school board because the restriction applies, not merely to simultaneous service, but "during the term for which he or she has been elected" to serve in the county role. This is why I conclude that the JP would be ineligible to serve on the school board if that service would overlap with the JP's term of office.
Question 2: If the answer is no, is there a penalty for holding both offices?
While Arkansas law does not prescribe a civil or criminal penalty for holding both offices, the individual would be subject to the statutory removal procedure.
Deputy Attorney General Ryan Owsley prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General