Can the Washington County Quorum Court require the county clerk to publish ordinances, resolutions, and contracts on the county website?

Plain-English summary

Representative David Whitaker asked whether the Washington County Quorum Court may require the county clerk to publish county ordinances, resolutions, and contracts online. The AG answered yes. A.C.A. § 14-14-902(a) makes the clerk the default secretary of the quorum court and permits the quorum court to assign additional duties by ordinance. The AG said online publication falls within that authority.

The opinion also considers a separate county secretariat position. If the quorum court created that position, it inherits the clerk's legislative duties even if placed on the county judge's staff. The judge hires the person, while the quorum court may set the duties. If Washington County has made that arrangement, the court secretary is responsible for the online publication; a new ordinance could return those duties to the clerk.

The AG rejected two possible separation-of-powers objections: adding this duty does not revise the elected clerk's office under Amendment 55, and housing a separate secretariat on the judge's staff does not remove the quorum court's statutory authority over its duties.

What this means for you

Quorum courts and county clerks

The opinion approves an ordinance requiring online publication of ordinances, resolutions, and contracts. Which position performs it depends on whether the county has created a separate secretariat and how the relevant ordinance assigns the duties.

County judges and residents

The AG says a judge may hire the person filling a separate secretariat position, while the quorum court sets that position's legislative duties. The opinion addresses online publication; it does not decide newspaper publication or remedies for a refusal to publish.

Common questions

Can the quorum court require the clerk to post county records online? Yes. The AG says the clerk's statutory secretarial duties can include online publication assigned by ordinance.

What if the county has a separate secretariat on the judge's staff? The AG says that position assumes the clerk's legislative duties. The quorum court may assign it the online publication duty, and a new ordinance could return the duty to the clerk.

Did the AG address newspaper publication or enforcement? No. The request and answer concern posting ordinances, resolutions, and contracts on the county website.

Background and statutory framework

Ark. Const. amend. 55, § 1(a) and A.C.A. § 14-14-801(a) establish quorum-court legislative authority for county affairs. A.C.A. § 14-14-902(a) governs the clerk's default secretarial role and a possible separate secretariat. The opinion discusses Amendment 55, § 2(b) to explain why this added duty does not amount to revising an elective office.

Citations

• Ark. Const. amend. 55, §§ 1(a), 2(b)
• A.C.A. § 14-14-801(a); § 14-14-902(a)
• Ark. Att’y Gen. Op. 2000-173

Source

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

Original opinion text

Opinion No. 2023-079

November 15, 2023

The Honorable David Whitaker
State Representative
717 North Lewis Avenue
Fayetteville, Arkansas 72701

Dear Representative Whitaker:

You have requested my opinion regarding the Washington County Quorum Court enacting an ordinance requiring the Washington County Clerk to publish ordinances, resolutions, and contracts on the Washington County website. You report that some members of the quorum court and the county attorney disagree over whether this action would violate the separation of powers. With this background in mind, you ask if the Washington County Quorum Court has authority to pass an ordinance requiring the Washington County Clerk to publish ordinances, resolutions, and contracts of the county online.

RESPONSE

Yes, the quorum court may lawfully require the county clerk to publish ordinances, resolutions, and contracts of the county online.

DISCUSSION

1. Quorum courts’ authority. State law authorizes quorum courts to legislate on “the affairs of
   the county” as long as that legislation does not conflict with the constitution or other laws. 1 As noted below, state statute makes the county clerk the default secretary of the quorum court subject to the latter’s direction via ordinance. Therefore, in order to conclude that the quorum court could not require the county clerk to publish ordinances, resolutions, and contracts, one would need to identify a provision of the constitution or a statute that prevented this quorum court action. As discussed below, I have found one statute that expressly allows the quorum court to direct the

1
See Ark. Const., Amend. 55, § 1(a) (“A county acting through its Quorum Court may exercise local legislative authority not denied by the Constitution or by law.”); A.C.A. § 14-14-801(a) (“[A] county government, acting through its county quorum court, may exercise local legislative authority not expressly prohibited by the Arkansas Constitution or by law for the affairs of the county.”). The Honorable David Whitaker State Representative Opinion No. 2023-079 Page 2

county clerk’s duties, and I have found no persuasive argument that prevents the quorum court from assigning the clerk these obligations.

2. County clerk’s duties. Under A.C.A. § 14-14-902(a), and unless the quorum court provides
   otherwise, the county clerk must “[p]erform all administrative and recordkeeping duties” required under the county government code and “[p]erform all other duties” that the quorum court sets “through county ordinance.” 2 Therefore, the quorum court has express authority to require a county clerk to perform certain duties, which encompasses publishing ordinances, resolutions, and contracts online.

The same conclusion applies if the quorum court exercises its statutory authority to create a separate position for someone to fill the office of “secretariat of the county.” 3 Although that person would “be a staff member of the county clerk or the county judge,” the person occupying this position would assume “all legislative duties…for a county clerk.” 4

3. Separation of powers. In your correspondence, you indicate that the county attorney and
   members of the quorum court disagree on whether it would violate the separation of powers for the quorum court to direct the county clerk’s duties. But your correspondence does not elaborate on why someone is concerned that this would violate the separation of powers. I see two possible concerns, neither of which I find persuasive.

First, the separation-of-powers concern could be between the respective powers of the quorum court and the county clerk. Perhaps someone is concerned that requiring the county clerk to publish these items would be an improper “revision” of the county clerk’s duties. Under Ark. Const. Amend. 55, § 2(b), the quorum court has authority to “create, consolidate, separate, revise, or abandon any elective county office” only if (1) the change does not occur during someone’s term and (2) the county’s citizens have approved such a change at a general election. But this argument is unpersuasive because, as noted above, the county clerk is the default secretary of the quorum court and must “perform all other duties” that the quorum court requires. So the quorum court would not be “revising” the county clerk’s office.

Second, the separation-of-powers concern could be between the respective powers of the quorum court and the county judge. It is my understanding that the Washington County Quorum Court may have (1) exercised its authority under § 14-14-902(a)(2) to create a secretariat separate from the county clerk and (2) housed that position on the county judge’s staff. If that is the case, then the duties of that separate position are set by § 14-14-902(a)(2) to include “all legislative duties prescribed in this chapter for a county clerk.” As noted above, the duties prescribed for a county clerk include performing “all other duties as may be required by the quorum court through county

2
A.C.A. § 14-14-902(a)(3)(B)–(C).
3
See A.C.A. § 14-14-902(a).
4
A.C.A. § 14-14-902(a)(2).
The Honorable David Whitaker
State Representative
Opinion No. 2023-079
Page 3

ordinance.” Therefore, if the county quorum court wanted to require the person holding this separate position to publish ordinances, resolutions, and contracts online, the quorum court would be within its authority to do so. While the county judge has authority to hire the person to fill this separate position, the quorum court has statutory authority to set the person’s duties. 5

If Washington County has created this separate position to function as the secretariat of the quorum court, then the court secretary is responsible for publishing ordinances, resolutions, and contracts on the county website. And if the quorum court wishes for the county clerk to resume these duties, that could be accomplished through a new ordinance.

Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General

5
See generally Ark. Att’y Gen. Op. 2000-173 (explaining the general division of authority regarding county personnel).