Can the same Arkansan serve as both Justice of the Peace and town council member at the same time?
Plain-English summary
Representative Watson asked whether one person can serve as both a Justice of the Peace (JP) on the Hempstead County Quorum Court and as a council member on the Fulton Town Council. He pointed to A.C.A. § 14-14-1202(c)(3)(A) as the potential bar.
The AG splits the answer into three layers, because Arkansas has three categories of dual-office prohibitions:
- Constitutional conflicts (Article 7, § 53)
- Statutory conflicts (A.C.A. §§ 14-14-115 and 14-14-1202)
- Common-law incompatibility (offices that conflict in their duties)
The statute Watson asked about (§ 14-14-1202(c)(3)(A)) does not apply. That statute bars a JP from also being an elected "city council member." It says "city," not "town" or "city or town." When the General Assembly wants both, it knows how to say so (and does in other statutes). The omission of "town" is intentional. So § 14-14-1202(c)(3)(A) does not bar a JP from being a town council member.
But Article 7, § 53 of the Arkansas Constitution likely does. That section bars certain elected county officials (including JPs) from being "appointed or elected to any civil office in this state" during their term. The constitutional question is whether a town council seat is a "civil office." The AG predicts yes, drawing on similar case law under Article 5, § 10 (which uses nearly identical language for legislators). A town council member holds an office created by statute, with statute-set terms, takes an oath, and exercises corporate authority of the town. That fits the "civil office" criteria.
A.C.A. § 14-14-115 also likely applies. That statute mirrors the constitutional provision, barring a JP (and other listed county officers) from being elected or appointed to "any other civil office" during the term they hold the county office. The statute lists examples of civil offices but says the list is "without limitation." A town council seat is a civil office under standard analysis.
Critical sequence rule. Both Article 7, § 53 and § 14-14-115 only bar movement from the county office to the new civil office during the county officer's term. They do not bar holding the new civil office before becoming a county officer. § 14-14-115(c)(2) specifically permits "continuing to hold a civil office the person held before appointment or election" to the county office.
So the answer turns on which office came first:
- If JP first, then town council: dual service likely violates Article 7, § 53 and § 14-14-115.
- If town council first, then JP: dual service is permitted (no statutory or constitutional bar).
Common-law incompatibility doesn't apply. The two offices serve different levels of government, neither is subordinate to the other, and neither has supervisory or audit authority over the other. So the common-law doctrine of incompatibility does not bar the dual service.
The AG's structural point: dual-office-holding analysis is not a single test. It is layered. A practitioner has to walk through all three layers to give a complete answer.
What this means for you
County clerks and election commissioners
When a candidate files for both a county office (especially JP) and a municipal office, run the three-layer analysis. The order of office-acquiring matters. A sitting JP filing for town council during the JP term is risky and likely impermissible under Article 7, § 53. A sitting town council member filing for JP is permitted.
If a sitting JP is found to have been elected to a town council during their JP term, the constitutional/statutory bar may have ousted them from the JP seat (or rendered the town council election void). The remedy depends on the specific procedural posture; courts have been the final arbiter in disputed cases.
County quorum court members and town council members
Before pursuing a dual office, walk through:
1. Which office did you hold first?
2. Are you within a current term for both?
3. Does any statute (city council vs. town council) specifically address your combination?
For the JP plus town council combination specifically: if you were a town council member who got elected JP, you can keep both. If you were a JP who was then elected to the town council, you likely cannot keep both during your JP term (despite the AG's caveat that this is a court question).
The narrowness of the city/town distinction in § 14-14-1202(c)(3)(A) is unusual. Do not assume statutory language about "city" sweeps in "town" or vice versa. Read the exact words.
City and county attorneys
When advising on dual-office holding, default to the three-layer analysis. The constitutional layer is often the most restrictive (because Article 7, § 53 sweeps broadly into "any civil office"). The statutory layer can either match the constitutional layer or carve out specific exceptions. The common-law layer is rare in modern practice but should be checked.
For statutory drafting, be explicit about whether "city" includes "town" or "council member" includes both. The General Assembly's omission of "town" from § 14-14-1202(c)(3)(A) is, per the AG, intentional and respected.
Candidates evaluating a dual run
If you are considering running for a county office while holding a municipal office (or vice versa), get a written legal opinion before filing. The AG opinion cited here is persuasive but not binding, and the specific facts of your situation may bring in nuances. The cost of an incorrect dual filing can be loss of one or both offices.
Note also: the AG opinion specifically says it has "no information regarding which office the individual assumed first." That ambiguity is what kept the AG from giving a definitive answer. Document your office-holding history clearly when seeking advice.
State legislators considering dual-office reforms
The patchwork between Article 7, § 53 (constitutional, hard to amend) and the statutes is not always clean. If you want to change how dual-office holding works, statutory amendments can address the statutes but not the Constitution. Constitutional amendment requires a separate process (Ark. Const. art. 19, § 22 etc.).
If you want to clarify "city" vs. "town" in § 14-14-1202(c)(3)(A), the right amendment language would be "city council member or town council member."
Common questions
My JP term ends in two months. Can I run for town council now?
You can run, but if you are elected and seated before your JP term ends, you may have a brief overlap that triggers the constitutional bar. Plan to take the town council oath after your JP term ends, or resign the JP seat first.
I serve on a town council. Can I run for JP?
Yes. The constitutional bar is on a sitting JP being elected to another civil office, not the reverse. § 14-14-115(c)(2) explicitly permits "continuing to hold a civil office the person held before appointment or election" to the county office.
My city has a "city council" but it's an incorporated city of the second class. Does that matter?
Yes, the city/town distinction in Arkansas is a legal classification. Cities of the first class, cities of the second class, and incorporated towns each have different governance structures. § 14-14-1202(c)(3)(A) refers to "city council member" and excludes town councils. Confirm your city's classification before applying the statute.
What about an unsalaried position? Does that affect "civil office" status?
Compensation is not the determinant of civil-office status. The Arkansas Supreme Court has named several factors: tenure, compensation, duties fixed by law, oath, formal commission, bond. No single factor controls. Most elected positions, salaried or not, qualify.
What's the consequence if I'm wrong and hold both offices?
A successful quo warranto action (or similar challenge) can oust you from one or both offices. Some statutes specify which office is forfeited; others leave it to court analysis. If you are uncertain, resign one office and seek written guidance before continuing.
Can I serve on a state board while holding a JP seat?
Maybe. Article 7, § 53's "any civil office in this state" is broad. State boards may or may not qualify, depending on whether they meet the civil-office criteria (statutory creation, fixed duties, oath, etc.). § 14-14-115(b) explicitly excludes some advisory boards and task forces, so check if your specific board fits an exclusion.
Background and statutory framework
Arkansas's dual-office-holding rules come from three sources:
Constitutional. Article 7, § 53 of the Arkansas Constitution bars certain county officials (county judge, JP, sheriff, circuit clerk, county clerk, assessor, coroner, treasurer, surveyor, collector) from being "appointed or elected to any civil office in this state" during their term. Article 5, § 10 has analogous language for state legislators.
Statutory. A.C.A. § 14-14-115 mirrors Article 7, § 53 with detail about what counts as a civil office and exclusions for advisory boards. § 14-14-115(c)(2) preserves continuation of pre-existing civil offices. A.C.A. § 14-14-1202(c)(3)(A) specifically bars JPs from being elected city council members (but not town council members).
Common law. The doctrine of incompatibility bars dual service when one office is subordinate to the other, when one has supervisory or audit power over the other, or when the duties of the two offices are otherwise inconsistent in practice (Tappan v. Helena Fed. Savings & Loan, 193 Ark. 1023 (1937); Thompson v. Roberts, 333 Ark. 544 (1998)). For JP plus town council, no incompatibility exists because the two offices are at different levels of government with no overlapping authority.
The civil-office definition under Article 5, § 10 case law applies by analogy to Article 7, § 53. Key factors: statutory creation of the office, fixed tenure and duties, oath of office, formal commission or bond. Wood v. Miller, 154 Ark. 318 (1922); Harvey v. Ridgeway, 248 Ark. 35 (1970); Maddox v. State, 220 Ark. 762 (1952).
The "city or town" distinction shows up in other Arkansas statutes (e.g., §§ 14-37-108, 14-40-203, 14-55-502), where the General Assembly explicitly says both. The omission of "town" from § 14-14-1202(c)(3)(A) is, per the AG, intentional.
Citations
- A.C.A. § 14-14-115 (general dual-office prohibition for listed county officers)
- A.C.A. § 14-14-115(a)(1) (bar on county officer being elected/appointed to other civil office)
- A.C.A. § 14-14-115(b) (definition of civil office, includes without limitation)
- A.C.A. § 14-14-115(b)(1) (list of civil offices)
- A.C.A. § 14-14-115(c)(2) (preservation of pre-existing civil offices)
- A.C.A. § 14-14-1202(c)(3)(A) (specific bar on JP also serving as city council member)
- A.C.A. § 14-37-108, § 14-40-203, § 14-55-502 (statutes that explicitly say "city or town")
- A.C.A. § 14-42-106 (oaths of municipal officers)
- A.C.A. § 14-45-101 (creation of town council)
- A.C.A. § 14-45-102 (terms of town council members)
- Ark. Const. art. 5, § 10 (legislator dual-office)
- Ark. Const. art. 7, § 53 (county officer dual-office)
- Byrd v. State, 240 Ark. 743, 402 S.W.2d 121 (1966)
- Wood v. Miller, 154 Ark. 318, 242 S.W. 573 (1922)
- Harvey v. Ridgeway, 248 Ark. 35, 450 S.W.2d 281 (1970)
- Martindale v. Honey, 259 Ark. 416, 533 S.W.2d 198 (1976)
- Maddox v. State, 220 Ark. 762, 249 S.W.2d 972 (1952)
- Tappan v. Helena Fed. Savings & Loan Assn., 193 Ark. 1023, 104 S.W.2d 458 (1937)
- Thompson v. Roberts, 333 Ark. 544, 970 S.W.2d 239 (1998)
Source
Original opinion text
Opinion No. 2023-033
May 23, 2023
The Honorable Danny Watson
State Representative
413 East 16th Street
Hope, Arkansas 71801-8304
Dear Representative Watson:
I am writing in response to your request for an opinion on a dual-office-holding issue. Your correspondence states that the elected Justice of the Peace ("JP") of Hempstead County Quorum Court District 9 also serves on the Fulton Town Council. You ask whether this dual service violates A.C.A. § 14-14-1202(c)(3)(A).
RESPONSE
No, A.C.A. § 14-14-1202(c)(3)(A) does not prevent a person from simultaneously holding office and serving as an elected JP and as an elected town council member. But such dual service may be prohibited by Article 7, § 53 of the Arkansas Constitution and by A.C.A. § 14-14-115.
DISCUSSION
The Arkansas Supreme Court has identified three categories of unlawful conflicts of interest that prevent a person from holding dual offices: constitutional conflicts, statutory conflicts, and conflicts that result from the offices having incompatible duties (i.e., the common law "doctrine of incompatibility"). The presence of any one of these three types of conflicts will prohibit dual service.
While I believe that neither A.C.A. § 14-14-1202(c)(3)(A) nor the common law would prevent the dual service you describe, I have identified one constitutional provision and one other statutory provisions that may prohibit such dual office holding.
- Constitutional analysis. Article 7, § 53 of the Arkansas Constitution prohibits certain county officials, including JPs, from "being appointed or elected to any civil office in this state" during the term for which the county official has been elected. To determine whether a particular position falls within article 7, § 53's proscription for elected county officials, one must determine whether the position qualifies as a "civil office." Article 7, § 53 does not define a "civil office," and no appellate court has ruled on its meaning. But the language of article 7, § 53 is very similar to a constitutional provision regarding sitting members of the General Assembly that states, "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."
The Arkansas Supreme Court has discussed what constitutes a civil office in the context of article 5, § 10 on several occasions, defining it as a "grant and possession of the sovereign power" and as "an office created by civil law within one of the only three branches of government provided for under the present Constitution of this state." The court has also observed that a civil officer's tenure, compensation, and duties are usually fixed by law and that the officer is not hired by contract but holds his position by official appointment. The taking of an oath of office, receipt of a formal commission, and giving of a bond also "indicate that a public office is involved, although no single factor is ever conclusive." The court has also made clear that civil offices "under this state" include both municipal and state offices.
Clearly, under this criteria, a town council member holds a civil office. A town council is created by statute and exercises the corporate authority of an incorporated town. Its members are elected, and their terms of office are set by statute. Furthermore, as municipal officers, town-council members take oaths of office.
I predict that a court asked to determine what constitutes a "civil office" for purposes of article 7, § 53 would consider the same factors as those outlined in article 5, § 10 case law and conclude that the office of town council member is a civil office. Consequently, a sitting JP could not be appointed or elected to the office of town council member during his or her term as a JP on the county quorum court without violating article 7, § 53. But this provision would not prevent a sitting town-council member from being elected to the office of JP.
- Statutory analysis. Two statutes are relevant to your question. Like article 7, § 53, A.C.A. § 14-14-115(a)(1) prohibits a person elected or appointed to any of the county offices listed in article 7, § 53, including the office of JP, from being "elected or appointed to another civil office during the term for which he or she has been elected." Section 14-14-115(b) goes on to define a "civil office" as any one of several elected or appointed positions, without limitation, and to clarify that a "civil office" does not include a position (1) on certain advisory boards or task forces or (2) related to the county official's duties. While the office of "town council member" is not listed among the civil offices in A.C.A. § 14-14-115(b)(1), that list is not meant to be exhaustive. And because a town council member clearly satisfies the criteria for civil office discussed above, I believe a town-council member likely constitutes a "civil office" for purposes of A.C.A. § 14-14-115 as well. Consequently, A.C.A. § 14-14-115 for a sitting JP or other county officer to be elected to the office of town council member.
As with article 7, § 53, the sequence of office-holding is important. While a person holding one of the listed county offices cannot be elected or appointed to another civil office during the term for which he or she has been elected county officer, A.C.A. § 14-14-115 does not prohibit the reverse. In fact, the statute explicitly states that it does not prevent a person from "continuing to hold a civil office the person held before appointment or election" to one of the listed county offices.
The other statute relevant to your question, and the one about which you have specifically asked, is A.C.A. § 14-14-1202(c)(3)(A). In my opinion, this statue does not prohibit dual service as a JP and town-council member. The statute references a "city" council, not a "town" council: "No person shall simultaneously hold office and serve as an elected county justice of the peace and hold office and serve as an elected city council member." If the General Assembly had meant for A.C.A. § 14-14-1202(c)(3)(A) to include members of both city and town councils, it would have specified, "town or city council," as it has done elsewhere in the Arkansas Code.
- Common-law analysis. The common-law doctrine of incompatibility bars dual office holding when it generates an inherent conflict that would impede the office holder from serving in both capacities. The Arkansas Supreme Court has explained that the "inconsistency, which at common law makes offices incompatible" exists in situations "where one is subordinate to the other, and subject in some degree to the supervisory power of its incumbent, or where the incumbent of one office has the power to remove the incumbent of the other or to audit the accounts of the other." Such incompatibility arises "when there is an inconsistency in the functions" of the offices or where the nature and duties of the two offices "render it improper from considerations of public policy for one person to retain both."
Here, the offices of JP and town council member serve at different levels of government. Neither position is subordinate to the other, nor is there any apparent conflict between the functions of the two positions. Thus, I do not believe dual service in both positions would violate the common-law doctrine of incompatibility.
- Conclusion. In sum, neither A.C.A. § 14-14-1202(c)(3)(A) nor the common law bars dual service as a JP and a town council member. But article 7, § 53 of the constitution and A.C.A. § 14-14-115 might prohibit such service. As to the specific situation you have asked about, I have no information regarding which office the individual assumed first. If he first held office as a member of the Fulton Town Council before being elected or appointed to the office of Hempstead County JP, such dual service is permitted. But if the individual already held office as a JP and then was elected or appointed to the town council during the term for which he was elected JP, this would likely violate both article 7, § 53 of the constitution and A.C.A. § 14-14-115.
Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General