Can a county justice of the peace serve on a school board at the same time?

Plain-English summary

State Senator Dan Sullivan asked whether a justice of the peace (JP) could serve on a school board while retaining the JP office, and whether holding both offices carried a penalty. The AG concluded that a JP whose county term overlaps the school-board term is ineligible to serve on the board. The opinion says the service is likely barred by Ark. Const. art. 7, § 53 and certainly barred by A.C.A. § 14-14-115, which expressly includes school-board membership in its definition of a civil office.

The AG explained that resigning the JP seat would not end the restriction: it lasts through the term for which the person was elected to the county office. Arkansas law provides no civil or criminal penalty for this kind of dual service, but the individual is subject to the statutory removal procedure. The opinion does not decide whether a person may file as a candidate before the terms overlap, or whether the rule applies in reverse to a current school-board member seeking county office.

What this means for you

Justices of the peace

The opinion concludes that a JP cannot serve on a school board during an overlapping JP term. Resigning before taking the school-board seat would not change the result because the restriction is tied to the elected term, not just continued service.

School boards and county officials

For the dual service described in the request, the AG says there is no separate civil or criminal penalty, but the person holding both offices is subject to removal under A.C.A. § 14-14-1311. The opinion does not address candidate filing rules or the validity of school-board decisions made by a member in this position.

Common questions

Can a justice of the peace serve on a school board at the same time?
No, if the terms overlap. The AG concluded that the JP would be ineligible to serve on the school board during the county term.

Would resigning as JP make school-board service possible during that term?
No. The AG said the prohibition runs for the term for which the JP was elected, even after resignation.

Is there a fine or criminal penalty for holding both offices?
The opinion says Arkansas law prescribes no civil or criminal penalty for this dual service, but the officeholder is subject to the statutory removal procedure.

Does this opinion rule on a school-board member who later seeks a JP office?
No. The opinion addresses a county officer's eligibility to take a school-board seat during the county term. It does not analyze the reverse sequence.

Background and statutory framework

Ark. Const. art. 7, § 53 bars listed elected county officials from being appointed or elected to a civil office during their county terms. The AG considered it likely that a school-board seat is such an office, relying on Williams v. Douglas, which construed similar language governing state legislators. A.C.A. § 14-14-115 expressly defines a school-board member as a civil officer for its parallel restriction. Footnotes 5 and 8 cite earlier AG opinions about a coroner's school-board service and about term-based dual-office restrictions. Footnote 8 also says this opinion supersedes contrary opinions 1999-249 and 1992-003.

Citations

• Ark. Const. art. 7, § 53 (restriction during county term)
• A.C.A. § 14-14-115(a)(1) (parallel statutory restriction)
• A.C.A. § 14-14-115(b)(1)(C) (school-board membership)
• A.C.A. § 14-14-1311 (removal procedure)
• Williams v. Douglas, 251 Ark. 555, 473 S.W.2d 896 (1971) (civil-office analysis)
• Ark. Att’y Gen. Op. 2018-120 (cited in footnote 5)
• Ark. Att’y Gen. Ops. 2004-310, 2001-127, 1999-396, 1999-249, 1992-003 (cited in footnote 8)

Source

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

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:

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?
2. 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

1 Ark. Const. art. 7, § 53. The ten elected, county officials are as follows: county judge; justice of the peace; sheriff; circuit clerk; county clerk; assessor; coroner; treasurer; county surveyor; or collector of taxes.

2 251 Ark. 555, 556, 473 S.W.2d 896, 897 (1971).

3 Id. at 557, 473 S.W.2d at 898.

4 Id. at 557–61, 473 S.W.2d at 897–900.

5 See also Ark. Att’y Gen. Op. 2018-120 (concluding that, under art. 7, § 53, a country coroner could not be appointed or elected to serve on a school board during the coroner’s term of office).

6 A.C.A. § 14-14-115(a)(1) (Supp. 2021) (emphasis added).

7 A.C.A. § 14-14-115(b)(1)(C).

8 See Ark. Att’y Gen. Ops. 2004-310, 2001-127, 1999-396. The conclusion of the current opinion supersedes the contrary conclusions of Ark. Att’y Gen. Ops. 1999-249 and 1992-003, which were decided before art. 7, § 53 became part of our constitution in 2017 by virtue of Amendment 95 and before the legislature enacted Act 639 of 2019, which is now codified at A.C.A. § 14-14-115.

9 A.C.A. § 14-14-1311 (Repl. 2013) (“The circuit court shall have jurisdiction, upon information, presentment, or indictment, to remove any county or township officer from office for incompetency, corruption, gross immorality, criminal conduct, malfeasance, misfeasance, or nonfeasance in office.”).