Can the Washington County judge appoint himself to and chair quorum court committees of the whole?
Plain-English summary
Washington County's Quorum Court (in Fayetteville) reorganized its committees through Ordinance 2023-003. The new structure: a Finance and Budget Committee of the Whole and a County Services Committee of the Whole. After each committee appointed the county judge as chairperson, the judge began refusing to place items on agendas requested by individual justices of the peace. Neither committee kept minutes. Representative Whitaker asked three questions.
Question 1: Can the county judge appoint himself to the committees? Unclear, the AG concludes the statute is ambiguous. Two equally-defensible readings:
- Reading 1 (no): A.C.A. § 14-14-502(c) prevents the executive branch from exercising legislative powers without express authorization. The committees are an extension of the quorum court (legislative branch). § 14-14-904(d)(2)(A) authorizes the judge to appoint members but does not expressly authorize him to appoint himself.
- Reading 2 (yes, if non-voting): The legislative power the judge can't exercise is voting. Under § 14-14-1101(a)(1), the judge already presides over the quorum court "without a vote." So the judge could be a non-voting member of a committee without violating separation of powers.
The AG joins prior opinions calling for legislative clarification. The statute as written is genuinely ambiguous; multiple AGs have flagged this (Ops. 2003-180, 2001-117, 95-084).
Question 2: Are committee meetings "de facto" quorum court meetings? No. Committees cannot pass ordinances or resolutions (§ 14-14-904(i)-(j)). Without that legislative power, a committee meeting cannot be an actual quorum court meeting. But: committees must follow many of the same procedural rules:
1. Open meetings (with employment-related closed-session exceptions) under § 14-14-109(a).
2. Rules giving citizens a reasonable opportunity to participate before final decisions (§ 14-14-109(b)).
3. Keep minutes of all public meetings (§§ 14-14-109(c), 14-14-903(a)).
4. Make minutes available for public inspection and copying (§§ 14-14-109(c), 14-14-110(a)).
5. FOIA applies because the committees are composed entirely of members from the parent governing body (Op. 2014-124).
So Washington County's committees not keeping minutes is a clear FOIA and meetings-law issue, regardless of the answer to Question 1.
Question 3: Does the judge serving as committee chairperson violate § 14-14-502(c)? Same ambiguity as Question 1. If the judge is voting, that probably violates separation of powers. If the judge is not voting (analogous to his quorum court presiding role), separation of powers might be maintained.
The non-statutory issue Whitaker flagged (the judge refusing to place items on agendas requested by individual JPs) is a procedural concern about how the chairperson runs the committees. The AG didn't squarely address it, but if a chairperson exclusively controls agendas and excludes JP-proposed items, that may impair the legislative function of the committees, which exist to serve the JPs' policy work. Whether it is technically illegal depends on the committee's adopted rules.
What this means for you
County judges and quorum courts considering committee restructuring
If you reorganize committees into committees of the whole, build minute-keeping and public-participation procedures from day one. Minutes are not optional. The fact that the committee includes all JPs does not turn the meeting into a non-public meeting; the committee is still a public body subject to open-meetings law and FOIA.
If your county judge wants to chair committees, document the procedure in committee rules. Address: (1) whether the judge votes (if so, you have a separation-of-powers problem under § 14-14-502(c) absent statutory authorization); (2) how agenda items are added (a chairperson with sole agenda control over JP-proposed items raises practical accountability questions even if not strictly illegal); (3) how meetings are noticed and minutes taken.
Justices of the peace
If your county judge is chairing committees and refusing your agenda requests, your remedies include:
- Move at the next quorum court meeting to amend committee rules to require chairperson placement of any JP-proposed item.
- Move to remove the judge as committee chairperson and appoint a JP instead.
- Bring the underlying policy question directly to the quorum court (which the judge presides over but does not vote in).
County attorneys
The committee-structure question is one of the trickiest in county government. This opinion confirms that the AG cannot resolve § 14-14-904(d)(2)(A) without legislative action. In the meantime, advise your client county to err on the side of statute compliance and FOIA. Specific recommendations:
- Keep minutes. Always.
- Hold open meetings.
- Allow public participation.
- If the judge serves on a committee, formally designate as non-voting to reduce separation-of-powers risk.
- Document agenda procedure in writing.
News media and civic groups
If a county committee is meeting without minutes, that is a FOIA violation regardless of the committee's legal status. Press for compliance through the FOIA enforcement provisions (A.C.A. § 25-19-107).
If a county judge is monopolizing committee chair positions, this is a structural concern beyond pure FOIA. Coverage of how the judge interacts with the legislative body (the quorum court and its committees) is a public-interest issue worth following.
State legislators
The recurring AG flag for legislative clarification of § 14-14-904(d)(2)(A) is a reasonable item for the next session. Specifically:
- Should the county judge be authorized to appoint himself or only other members?
- If the judge can serve on committees, voting or non-voting?
- Are committees of the whole different from regular committees in terms of judge participation?
Common questions
Our county committee just stopped keeping minutes after restructuring. Is that legal?
No. Committees of public bodies must keep minutes (§§ 14-14-109(c), 14-14-903(a)). Op. 2014-124 confirms FOIA applies. File a FOIA complaint with the prosecuting attorney or the AG.
The judge appoints all committee members but appointed himself to chair. Is that ok?
Statutorily ambiguous. Practically, it concentrates power in the executive. Even if not illegal, it raises accountability and process concerns. Quorum court can amend committee rules.
Can the public attend committee meetings?
Yes. Committee meetings are public meetings under § 14-14-109(a) and FOIA (Op. 2014-124).
What records of committee meetings are public?
Minutes (required), agendas, meeting recordings if any, and other documents created by or distributed to committee members. All are public records under FOIA unless a specific exemption applies.
Can I FOIA-request the judge's communications about committee assignments?
Yes. The judge's communications about official county business are public records. Apply standard FOIA exemptions (attorney-client, etc.) but the analysis is the same as for any public record.
Does this apply to all Arkansas counties or just Washington County?
The statutes apply statewide. Washington County's specific committee structure is the context, but the legal analysis applies to any Arkansas county that creates committees of the whole or other quorum court committees.
Background and statutory framework
Arkansas county governance is in A.C.A. ch. 14, subch. 14. Key sections for this opinion:
- § 14-14-502(c): Separation of powers between executive (judge) and legislative (quorum court).
- § 14-14-802: Committees may manage county organization and services.
- § 14-14-108(5): Committees may conduct hearings on county legislative affairs except budget/appropriations.
- § 14-14-109(a)-(c): Open meetings, public participation, minutes.
- § 14-14-110(a): Public access to records.
- § 14-14-903(a): Minutes requirement.
- § 14-14-904(d)(2)(A): County judge appoints regular and special quorum court committees (the ambiguous statute).
- § 14-14-904(i)-(j): Definitions of ordinances and resolutions; only quorum court (not committees) can pass them.
- § 14-14-1101(a)(1): County judge presides over quorum court "without a vote."
Ark. Const. art. 4, § 2 establishes the constitutional separation-of-powers principle that § 14-14-502(c) implements at the county level (Walker v. Washington County, 263 Ark. 317 (1978)).
The statutory canon expressio unius est exclusio alterius ("the express designation of one thing implies the exclusion of others") is from Larry Hobbs Farm Equip. (Ark. 2009) and Scalia & Garner. The AG uses it to argue that committees' inability to pass ordinances/resolutions (§ 14-14-904(i)-(j)) excludes them from "de facto" quorum-court status.
Op. 2014-124 establishes the FOIA framework for committees: when composed entirely of members from the parent governing body, committees are subject to FOIA's public-meeting and public-record rules.
Citations
- A.C.A. § 14-14-108(5) (committee hearings)
- A.C.A. § 14-14-109(a)-(c) (open meetings, public participation, minutes)
- A.C.A. § 14-14-110(a) (public access to records)
- A.C.A. § 14-14-502(c) (county-level separation of powers)
- A.C.A. § 14-14-802 (committee authority)
- A.C.A. § 14-14-903(a) (quorum court minutes)
- A.C.A. § 14-14-904(d)(2)(A) (judge's committee appointment authority - ambiguous)
- A.C.A. § 14-14-904(i)-(j) (ordinances, resolutions, committees cannot pass)
- A.C.A. § 14-14-1101(a)(1) (judge presides without vote)
- Ark. Const. art. 4, § 2 (constitutional separation of powers)
- Larry Hobbs Farm Equip., Inc. v. CNH Am., LLC, 375 Ark. 379, 291 S.W.3d 190 (2009)
- Walker v. Washington County, 263 Ark. 317, 564 S.W.2d 513 (1978)
- Ark. Att'y Gen. Ops. 2014-124, 2003-180, 2001-117, 95-084 (prior committee-related opinions)
Source
Original opinion text
Opinion No. 2023-037
July 5, 2023
The Honorable David Whitaker
State Representative
717 North Lewis Avenue
Fayetteville, Arkansas 72701
Dear Representative Whitaker:
You requested my opinion regarding regular and special committees of a quorum court. Your questions stem from action taken on Ordinance No. 2023-003, which you report was unanimously adopted by the Washington County Quorum Court. The ordinance disbanded the quorum court's existing committees and reorganized them into the Finance and Budget Committee of the Whole and the County Services Committee of the Whole. You further report that after each of these committees appointed him as chairperson, the county judge began refusing requests by a justice of the peace to place items on the committees' agendas. Finally, you report that neither of the newly formed committees keeps minutes of its meetings.
Based on this background information, you have asked three questions.
- Does the county judge's power to appoint all regular and special committees of the quorum court under A.C.A. § 14-14-904(d)(2)(A) authorize the county judge to appoint himself as a member of the committees?
Brief response: It is unclear whether A.C.A. § 14-14-904(d)(2)(A) allows the county judge to appoint himself as a member of the quorum court committees.
- Does having the county judge serve as the chairperson of a committee of the whole of the quorum court make the committee's meetings de facto meetings of the quorum court requiring compliance with all applicable laws and procedures for quorum court meetings, such as A.C.A. § 14-14-903(a) regarding minutes?
Brief response: While these committee meetings are not "de facto" quorum court meetings, the committee meetings are still subject to many of the same requirements.
- Does having the county judge serve as the chairperson of a committee of the whole of the quorum court violate A.C.A. § 14-14-502(c) with reference to the separation of powers?
Brief response: It is unclear whether the county judge acting as the chairperson of the quorum court committees would violate A.C.A. § 14-14-502(c).
DISCUSSION
Question 1: Does the county judge's power to appoint all regular and special committees of the quorum court under A.C.A. § 14-14-904(d)(2)(A) authorize the county judge to appoint himself as a member of the committees?
It is unclear whether A.C.A. § 14-14-904(d)(2)(A) allows the county judge to appoint himself as a member of the quorum court committees. I join multiple Attorneys General in observing that A.C.A. § 14-14-904(d)(2)(A) is ambiguous and that legislative clarification is warranted.
On the one hand, under A.C.A. § 14-14-502(c), the executive branch cannot "exercise any power" belonging to the legislative branch without express permission. In this instance, these committees are an extension of the quorum court because the committees manage county organization and services and may "conduct any public hearings on county legislative affairs" except budget or appropriations. Further, A.C.A. § 14-14-904(d)(2)(A) does not explicitly authorize the county judge to appoint himself as a member of the quorum court committees. Under the foregoing provisions, the county judge might be violating A.C.A. § 14-14-502(c) by appointing himself as a member of the quorum court committees.
On the other hand, one could argue that voting is the legislative power the county judge is proscribed from exercising. Under A.C.A. § 14-14-1101(a)(1), the county judge presides over the quorum court "without a vote." Because the county judge is already involved in the legislative process in the quorum court, it can be argued that the county judge could also be a member of the committees if he is not a voting member.
Because the reasoning for each of these interpretations is equally persuasive and consistent with the text of A.C.A. § 14-14-904(d)(2)(A), it seems that the statute is ambiguous on this issue. And that ambiguity hinders me from providing a definitive answer to your question.
Question 2: Does having the county judge serve as the chairperson of a committee of the whole of the quorum court make the committee's meetings de facto meetings of the quorum court requiring compliance with all applicable laws and procedures for quorum court meetings, such as A.C.A. § 14-14-903(a) regarding minutes?
No, these committee meetings are not "de facto" quorum court meetings because committees cannot pass ordinances and resolutions. Ordinances are a county's laws, and resolutions are policy statements without the force of law. Without ordinances and resolutions, there is no county government, and the General Assembly has not authorized committees to pass ordinances or resolutions. Thus, it is impossible for a meeting of a committee of the whole to be a "de facto" quorum court meeting.
Even so, these committees and the quorum court are subject to many of the same requirements. Specifically, Arkansas law requires both to: (1) hold open meetings unless those meetings cover certain aspects of employment; (2) enact rules to give citizens "a reasonable opportunity to participate prior to the final decision;" (3) keep minutes of all public meetings; and (4) make those minutes available for public inspection and copying. Further, because these committees are "composed entirely of members from the parent, governing body," the committees' records are public records under the Freedom of Information Act ("FOIA") and the committees' meetings are public meetings under the FOIA.
Question 3: Does having the county judge serve as the chairperson of a committee of the whole of the quorum court violate A.C.A. § 14-14-502(c) with reference to the separation of powers?
It is unclear whether the county judge acting as the chairperson of the quorum court committees would violate A.C.A. § 14-14-502(c). Article 4, § 2 of the Arkansas Constitution also requires separation of powers in county government. Walker v. Washington County, 263 Ark. 317, 320, 564 S.W.2d 513, 515 (1978). My analysis in response to your first question applies here as well. While the quorum court committees are an extension of the legislative branch and the county judge is not expressly authorized to act as chairperson for those committees, separation of powers might be maintained if the county judge is not voting.
Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General