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 Washington County's Quorum Court could pass an ordinance requiring the county clerk to publish ordinances, resolutions, and contracts on the county website. Some quorum court members and the county attorney disagreed about whether such a requirement would violate separation of powers.
The AG's answer is yes, the quorum court has that authority. The chain of reasoning is short:
Quorum courts have broad legislative authority on county affairs. Under Ark. Const. amend. 55 § 1(a) and A.C.A. § 14-14-801(a), a county may exercise legislative authority not denied by the constitution or by law. To stop the quorum court from doing something, you need to identify a constitutional or statutory bar.
The county clerk's statutory duties include performing what the quorum court assigns. Under A.C.A. § 14-14-902(a)(3)(B)–(C), the county clerk performs all administrative and recordkeeping duties required under the county government code, plus "all other duties" set by quorum court ordinance. So the clerk is, by statutory default, the secretary of the quorum court and must do what the quorum court assigns by ordinance.
Publishing ordinances, resolutions, and contracts online is a recordkeeping and administrative function. It fits squarely within the clerk's default secretarial duties, and the quorum court has express statutory authority to require additional duties.
The AG also addressed the separation-of-powers concerns, finding none persuasive:
Concern 1: revising the elected office. Could this be an improper "revision" of the county clerk's office under Ark. Const. amend. 55 § 2(b) (which requires voter approval to revise an elective office)? No. Adding a duty under express statutory authority is not "revising" the office; it is doing what § 14-14-902(a) already contemplates.
Concern 2: encroaching on the county judge. If Washington County had created a separate "secretariat" position on the county judge's staff (under § 14-14-902(a)(2)), would the quorum court still have authority? Yes. The statute that allows the secretariat position transfers "all legislative duties prescribed in this chapter for a county clerk" to that position. So whoever fills the secretariat role inherits the duty to perform what the quorum court requires by ordinance, even if the position sits on the county judge's staff. The county judge appoints the person; the quorum court sets the duties.
In other words: the county judge's hiring authority over the secretariat position does not insulate that position from quorum court direction on duties. The two authorities sit side by side.
If Washington County's quorum court has already created the secretariat position to function as the secretary of the quorum court, the publishing duty falls on that role rather than the county clerk's role. If the quorum court wants to put the duty back on the county clerk, that change can be made by a new ordinance.
What this means for you
Quorum court members
You have authority to pass an ordinance directing online publication of ordinances, resolutions, and contracts. The two statutory paths are: (1) assign the duty to the county clerk under A.C.A. § 14-14-902(a)(3)(C); or (2) if your county has created a separate secretariat position under § 14-14-902(a)(2), assign the duty to that position. Either path is within your authority.
If your local discussion has stalled on separation-of-powers concerns, this opinion gives you AG support for moving forward. The clerk's default-secretary status is statutory, not optional. The county judge's hiring authority over a separate secretariat position does not block the quorum court from setting that position's duties.
County clerks
If your quorum court directs you to publish documents online, you must comply. The directive is within their statutory authority. Logistically, plan for the workflow: which documents, what file format, what posting cadence, where on the website, and how long they remain accessible.
If you believe the directive is impractical, raise that with the quorum court so the ordinance can be tailored. The legal authority exists; the practical implementation is open to negotiation.
County judges
If your county has created or might create a separate secretariat position on your staff under A.C.A. § 14-14-902(a)(2), understand the boundary: you appoint the person, but the quorum court sets the position's duties. That includes online publication if the quorum court so decides.
County attorneys
This opinion addresses head-on the separation-of-powers framing some county attorneys have raised. Both the "improper revision of an elective office" and "encroachment on the county judge" arguments fail under the AG's analysis. The county clerk's default secretarial role is built into A.C.A. § 14-14-902(a). The secretariat-position alternative under § 14-14-902(a)(2) preserves quorum court authority over duties.
Open-government advocates and residents
If your county does not currently publish ordinances, resolutions, and contracts online, this opinion confirms the legal path to require it: the quorum court has authority to do so by ordinance. Direct your advocacy to the quorum court (or your specific quorum court member) rather than to the county clerk or county judge, since the legislative decision sits with the quorum court.
Once the duty is created by ordinance, it becomes enforceable against whichever office holds the secretarial role.
Press and news media
When tracking county legislative activity, the path to standardized online publication of ordinances, resolutions, and contracts is via the quorum court. Where counties have not yet acted, FOIA requests remain the primary tool for accessing documents.
Common questions
Why is the county clerk the default secretary of the quorum court?
Because A.C.A. § 14-14-902(a) makes the county clerk responsible for the county's administrative and recordkeeping functions and provides that the clerk performs additional duties as the quorum court directs. The arrangement reflects historical practice: county clerks have been record-keepers for county government in Arkansas for over a century.
What is a county secretariat?
A position the quorum court can create under A.C.A. § 14-14-902(a)(2) to handle the secretarial duties that would otherwise fall on the county clerk. The person filling the position is a staff member of either the county clerk or the county judge, but assumes "all legislative duties prescribed in this chapter for a county clerk."
Does this only apply to Washington County?
The statutes apply statewide. The AG's analysis was prompted by Washington County's specific dispute but the legal conclusion applies to any Arkansas county.
Can the quorum court require publication in the newspaper too?
Yes. The same authority that lets the quorum court direct online publication lets it direct print publication. Some Arkansas counties have separate statutes governing newspaper publication of certain types of documents (such as ordinances).
What happens if the clerk refuses?
The duty is statutory once an ordinance assigns it. Refusal would expose the clerk to potential mandamus action, removal proceedings, or other enforcement. In practice, most clerks will comply once the ordinance is properly enacted.
Does this affect the clerk's other duties?
No. The publication duty is an addition. The clerk's other administrative and recordkeeping duties continue.
What about confidential or sensitive contracts?
The AG opinion addresses authority generally. Specific publication ordinances should account for confidentiality, FOIA exemptions (such as for personnel records or trade secrets), and any contractual nondisclosure obligations. The publishing duty does not override existing confidentiality protections.
Background and statutory framework
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."
Ark. Const. amend. 55, § 2(b). Restricts the quorum court's authority to "create, consolidate, separate, revise, or abandon any elective county office" by requiring voter approval (and timing constraints). Setting additional duties for an existing office is not "revising" the office.
A.C.A. § 14-14-801(a). Reinforces amend. 55 § 1(a): a county may exercise local legislative authority not expressly prohibited by the Arkansas Constitution or by law.
A.C.A. § 14-14-902(a)(3)(B)–(C). County clerks must perform all administrative and recordkeeping duties required under the county government code and "all other duties" set by quorum court ordinance.
A.C.A. § 14-14-902(a)(2). Authorizes the quorum court to create a separate secretariat position on the staff of either the county clerk or the county judge, with the position assuming all legislative duties prescribed for the county clerk.
Op. 2000-173. Earlier opinion explaining the general division of authority regarding county personnel.
Citations
- Ark. Const. amend. 55, §§ 1(a), 2(b)
- A.C.A. § 14-14-801(a)
- A.C.A. § 14-14-902(a) (clerk and secretariat duties)
- Ark. Att'y Gen. Op. 2000-173
Source
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
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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 (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.")). 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 county clerk's duties, and I have found no persuasive argument that prevents the quorum court from assigning the clerk these obligations.
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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." 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." 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."
- 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 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.
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