When an Arkansas county treasurer resigns mid-term, who declares the vacancy, who appoints a replacement, how long does the appointee serve, and can the resigning treasurer run for another county office?

Plain-English summary

Garland County's treasurer resigned effective October 31, 2023, with two years left on his term (which would have ended December 31, 2026). Six days later, the candidate filing period for the 2024 primary opened. The county election commission asked the AG how to fill the seat, how long an appointee would serve, and whether the former treasurer could run for justice of the peace right after resigning.

Four answers:

1. The Governor does not declare the vacancy. The quorum court does. Under A.C.A. § 14-14-1309(a), the quorum court of each county declares any county elective office vacant when the office becomes vacant by resignation, death, or other cause.

2. No special filing period and no party convention. Arkansas law gives the quorum court power to fill the vacancy by appointment under Amendment 55, § 4 of the constitution. A special election is not authorized and no convention or special filing period applies.

3. The appointee serves until the next general election (November 2024 here), not until the original term ends in 2026. Both Amendment 29 and the parallel statute, A.C.A. § 14-14-1310, point to the same result: when the vacancy occurs more than four months before the next general election, voters elect a successor at that election rather than letting the appointee serve out the entire unexpired term.

4. The former treasurer cannot run for justice of the peace until the original treasurer's term ends. Article 7, § 53 of the Arkansas Constitution bars certain county officials, including treasurers, from being appointed or elected to any other civil office during the term they were elected to serve. A resignation does not reset that clock. Because the treasurer was elected to a term ending December 31, 2026, he cannot serve as a justice of the peace during any portion of that period.

What this means for you

County election commissioners and county clerks

When a county elective office becomes vacant by resignation, the quorum court is the body that takes both procedural steps. It declares the vacancy in writing and files the declaration with the Governor (per § 14-14-1309(c)), and within thirty days it appoints a successor by resolution under § 14-14-1310(a)(1). Do not wait for or solicit a Governor's proclamation; the constitutional and statutory framework runs through the quorum court.

For county-office vacancies, no special election is available. A.C.A. § 7-7-105 reserves special primaries for U.S. House, Lieutenant Governor, and General Assembly seats only. If your county receives questions about whether a special election can be called for this vacancy, the answer is no.

The appointee will appear on the next general-election ballot if the vacancy occurred more than four months before that election. Plan candidate filing windows, ballot certification, and notice publications around the regular election cycle, not a separate vacancy cycle.

Quorum court members

Two duties fall on the quorum court when a county elective office goes vacant. First, declare the vacancy by formal action and file that declaration with the Governor's office. Second, appoint a successor within thirty days by resolution. The resolution should make explicit that the appointee serves "until a successor is elected and qualified" at the next general election (when the vacancy occurs more than four months before that election) so the appointee and the public both know the term boundary.

When picking the appointee, be aware the appointee may not serve the entire unexpired term. The voters at the next general election will elect a successor who takes office on January 1 following that election. The appointee will hold the seat for roughly 14 months in this scenario, not for the full unexpired two-year remainder.

County officials considering resignation

If you were elected to a county office and you are thinking about resigning to run for a different county office, read Article 7, § 53 carefully before you act. Arkansas constitutional law treats the term you were elected to as the relevant disqualification window, not the time you actually served in office. Resigning early does not free you up to run for the second office during what would have been the rest of your original term. You have to wait until the original term naturally expires.

The eight enumerated offices in Article 7, § 53 are county judge, sheriff, circuit clerk, county clerk, assessor, coroner, surveyor, and treasurer. Any of these is barred from being elected or appointed to any other civil office during the term they were elected to serve, regardless of resignation.

Candidates for county office during a vacancy cycle

If a county office goes vacant well before the next general election, the candidate filing period for that office runs as part of the regular primary cycle. There is no separate "vacancy filing window" you have to learn. Plan your filing per the standard schedule.

You may notice the appointee is listed as the incumbent on the ballot. The appointee's brief tenure does not give them any special ballot advantage in law, only the practical advantage of having served in the office.

Common questions

Why does Amendment 55 control over Amendment 29 for county vacancies?
Amendment 29, adopted earlier, gave the Governor authority to fill county-office vacancies by appointment. Amendment 55, ratified in 1976 and effective January 1, 1977, reorganized county government and shifted that appointment authority to the quorum court. The Arkansas Supreme Court has held that Amendment 55 controls to the extent of any conflict with the older Amendment 29. The result: quorum court appoints, Governor does not.

What if the vacancy happens within four months of the next general election?
Then the appointee serves out the rest of what would have been the unexpired term, not just until the next election. Amendment 29, § 4 ties the analysis to whether the office would have been on the ballot anyway at the next general election. If the vacancy is too close to that election to add the office to the ballot, the appointee serves until the office would naturally have been up for election (typically the second-following general election).

Can the quorum court call a special election to fill a vacant county office?
No. Hawkins v. Stover (274 Ark. 125, 1981) struck down a statute that purported to let quorum courts call special elections for county judge vacancies, holding that Amendments 29 and 55 are "complete and self-executing" on the manner of filling such vacancies. A.C.A. § 7-7-105 limits special elections to U.S. House, Lieutenant Governor, and General Assembly seats only.

The former treasurer says his original term ended when he resigned. Is that right?
No. The original term was set by his election. His resignation ended his service in the office, but the term itself continues until December 31, 2026. Article 7, § 53 disqualifies him from any other civil office during that elected term, regardless of whether he is actually serving.

Could the resigning treasurer run for a non-county civil office, like state legislator?
The text of Article 7, § 53 prohibits a treasurer from being "appointed or elected to any civil office in this state" during the term for which he was elected. "Civil office in this state" is broad and has been interpreted to include various state and local positions. Whether a particular non-county position is barred is fact-intensive. Talk to an election lawyer before filing for any office during the original-term window.

What if the appointee cannot or will not run in the next general election?
The appointment is not contingent on the appointee running. If no candidate qualifies for the seat at the next general election, the appointee may continue as a "holdover" past the appointment's normal end. McCraw v. Pate, 254 Ark. 357 (1973), discusses the holdover concept.

Background and statutory framework

Vacancy declaration. A.C.A. § 14-14-1309(a) requires the quorum court to declare the vacancy when one exists. § 14-14-1309(c) requires the declaration be filed in writing with the Governor. § 14-14-1308(4) defines a vacancy to include resignation, and A.C.A. § 7-1-101(39)(A) reinforces that definition.

Appointment authority and timing. A.C.A. § 14-14-1310(a)(1) requires the quorum court to fill any vacancy in a county elective office within thirty days of the vacancy declaration, by resolution. § 14-14-1310(a)(2) sets qualifications for the appointee.

Length of service of appointee. Two parallel sources govern. Amendment 29, § 4 sets the constitutional rule. A.C.A. § 14-14-1310(a)(2)(D)(i) sets the statutory rule. The AG read both as harmonious: appointee serves "for the entire unexpired term in the office in which the vacancy occurs, or until a successor is elected and qualified." The phrase "or until a successor is elected and qualified" pulls in the Amendment 29, § 4 rule that voters at the next general election (if the vacancy occurred more than four months before it) elect the successor.

No special election. Hawkins v. Stover, 274 Ark. 125, 622 S.W.2d 667 (1981) (Arkansas Supreme Court), held the constitutional vacancy framework is complete and self-executing, leaving no room for special elections. A.C.A. § 7-7-105 expressly limits special primaries to U.S. House, Lieutenant Governor, and General Assembly seats.

Dual office prohibition. Article 7, § 53 of the Arkansas Constitution lists county judge, sheriff, circuit clerk, county clerk, assessor, coroner, surveyor, and treasurer as offices whose holders cannot be appointed or elected to any other civil office during the term they were elected to fill. A.C.A. § 14-14-115 codifies the same prohibition. The trigger is the elected term, not the period of actual service, so resignation does not reset the disqualification clock.

Vacancies in nomination. A.C.A. § 7-1-101(38) defines "vacancy in nomination" as a separate category covering candidates rather than incumbents. This category was not implicated in the Garland County treasurer scenario.

Citations

• A.C.A. § 14-14-1309(a) (quorum court duty to declare vacancy)
• A.C.A. § 14-14-1309(c) (filing declaration with Governor)
• A.C.A. § 14-14-1308(4) (vacancy by resignation)
• A.C.A. § 14-14-1310(a)(1) (thirty-day appointment deadline)
• A.C.A. § 14-14-1310(a)(2)(D)(i) (length of appointee's service)
• A.C.A. § 7-1-101(39)(A) (defining "vacancy in office")
• A.C.A. § 7-7-105 (limited offices eligible for special election)
• A.C.A. § 14-14-115 (dual-office prohibition codification)
• Ark. Const. art. 7, § 53 (eight county offices subject to dual-office bar)
• Ark. Const. art. 7, § 53(8) (treasurer as county office)
• Ark. Const. amend. 29, § 4 (length of appointee's term)
• Ark. Const. amend. 55, § 4 (quorum court appointment authority)
• Hawkins v. Stover, 274 Ark. 125, 622 S.W.2d 667 (1981) (no special election for county vacancies)
• Oliver v. Simons, 318 Ark. 402, 885 S.W.2d 859 (1994) (Amendment 55 changed appointive authority)
• McCraw v. Pate, 254 Ark. 357, 494 S.W.2d 94 (1973) (holdover doctrine)

Source

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

Original opinion text

Opinion No. 2023-097
March 22, 2024
Mr. Gene Haley, Chair
Garland County Election Commission
649 A Ouachita Avenue
Hot Springs, Arkansas 71901
Dear Mr. Haley:
I am writing in response to your request for an opinion on several election-law questions. You report that the Garland County Treasurer resigned effective October 31, 2023, and that the Garland County Quorum Court will appoint a successor to serve "until the next general election." You also report that the filing period for the 2024 primary election, November 6–14, 2023, began only six days after the date of the resignation. You ask the following questions about the process to fill the vacancy by appointment and the process to elect a successor:

1. Does the Governor have to declare the office vacant?

Brief Response: No. The quorum court declares the vacancy.

2. Does the process require the Governor to proclaim a "special filing period" for this race, or would the county political party nominate candidates at a convention after the primary?

Brief Response: Neither. The quorum court fills the vacancy by appointment, and that appointment serves until the next general election when a successor is elected.

3. The Treasurer's term ends December 31, 2026. The Arkansas Constitution, Amendment 29, § 4 and A.C.A. § 14-14-1310(a)(2)(D) set different methods to determine the length of the appointee's term. Amendment 29 directs that the appointee serves until the next general election. But § 14-14-1310 directs that the appointee serves the entire unexpired term of the previous office holder. Which is the appropriate governing authority for this situation, and how long will the appointee serve?

Brief Response: As explained below, the two provisions can be read harmoniously, jointly requiring that the appointee serve until a successor is elected at the next general election (which occurs in 2024) and begins serving on January 1, 2025.

4. The Treasurer has indicated that he intends to run for election to the Garland County Quorum Court upon his resignation as county treasurer. The Arkansas Constitution, Article 7, § 53 and A.C.A. § 14-14-115 prohibit certain county officials, including county treasurers, from being appointed or elected to any civil office in this state during the term for which the county official has been elected. The justice of the peace elected to this seat would take office on January 1, 2025, overlapping with the unexpired term of the county treasurer's office. Would these provisions prevent the former Treasurer from being elected as a justice of the peace? Does a resignation from an elected office terminate the original elected term?

Brief Response: Arkansas law prohibits the former county treasurer from serving as a justice of the peace during the time for which he was originally elected to serve as treasurer.

DISCUSSION

Question 1: Does the Governor have to declare the office vacant?

Under A.C.A. § 14-14-1309(a), the "quorum court of each county shall declare a county…office vacant where conditions of vacancy exist." Under that statute, the only two questions one must answer are (1) whether a county treasurer is a "county office"; and (2) whether a resignation qualifies as a "condition[] of vacancy." The answer to both questions is yes. The Arkansas Constitution declares that a county treasurer is a "county office[]." An elective county office is vacant when, among other things, the office holder resigns. Since the Treasurer resigned effective October 31, 2023, the quorum court has the statutory duty to declare a vacancy.

Question 2: Does the process require the Governor to proclaim a "special filing period" for this race, or would the county political party nominate candidates at a convention after the primary?

Neither. Although Amendment 29 of the Arkansas Constitution generally dictates how one fills vacancies in elective county offices, "Amendment 55 changes this procedure only to the extent that the quorum court is substituted for the Governor as the appointive authority." Specifically, under Amendment 55, § 4 of the Arkansas Constitution, the quorum court will "fill vacancies in elective county offices," which includes the position of county treasurer. Therefore, "[i]t is clear that Amendment 55, when read in conjunction with Amendment 29, is complete and self-executing as to the manner of filling vacancies in county offices." This also means that no one is authorized to call a special election to fill the vacant position because the "alternative of holding a special election to fill a vacancy is not available" under law for a vacant county position.

Question 3: The Treasurer's term ends December 31, 2026. Arkansas Constitution, Amendment 29, § 4 and A.C.A. § 14-14-1310(a)(2)(D) set different methods to determine the length of the appointee's term. Amendment 29 directs that the appointee serves until the next general election. But § 14-14-1310 directs that the appointee serves the entire unexpired term of the previous office holder. Which is the appropriate governing authority for this situation, and how long will the appointee serve?

If the constitution and a statute conflict, then the constitution controls. But, as explained below, it is my opinion that the constitutional and statutory provisions you reference do not conflict and can be read harmoniously.

1. Amendment 29. Section 4 of Amendment 29 governs the duration of appointments to fill vacancies in elective offices. That provision requires one to first ask: would the office "in regular course be filled at that next general election if no vacancy had occurred"? If the answer to that question is "yes," then the appointee serves "during the entire unexpired term" of the office to which he or she was appointed. But the information provided in your opinion request indicates that the answer to that question is "no" because, you report, the Treasurer had been elected to a term that expires at the end of December 2026. Therefore, the office would not have normally been filled at the next general election because the next general election is November 2024, and the Treasurer resigned a term that expires in 2026.

In that case, Amendment 29 requires one to answer an additional question: has the vacancy occurred less than four months before the next general election? If so, then the appointee holds the office until it would have normally been up for reelection. But if the vacancy occurs more than four months before the next general election, then the appointee holds the office until a successor can be elected at the next general election. Here, the vacancy occurred more than a year before the next general election. Under that scenario, the appointee serves until the office is "filled … [a]t the next General Election."

2. Arkansas Code. The same result occurs under the statute you ask about. Under A.C.A. § 14-14-1310(a)(2)(D)(i), the quorum court's appointee to fill the vacancy serves "for the entire unexpired term in the office in which the vacancy occurs, or until a successor is elected and qualified." The emphasized phrase indicates that there may be some instances in which the appointee's actual service is not coextensive with the unexpired term to which he or she has been appointed. The actual service might be longer if a successor cannot be elected for some reason, rendering the appointee a holdover who serves longer than the unexpired term. Or the actual service might be shorter if, as required under Amendment 29, § 4, a vacancy occurs more than four months before the next general election and an election is held sooner than the office would have normally been up for reelection.

Therefore, there is no conflict between Amendment 29, § 4 and A.C.A. § 14-14-1310(a)(2)(D).

Question 4: The Treasurer has indicated that he intends to run for election to the Garland County Quorum Court upon his resignation as Treasurer. The Arkansas Constitution, Article 7, § 53 and A.C.A. § 14-14-115 prohibit certain county officials, including county treasurers, from being appointed or elected to any civil office in this state during the term for which the county official has been elected. The justice of the peace elected to this seat would take office on January 1, 2025, overlapping the unexpired term of the county treasurer's office. Would these provisions prevent the former Treasurer from being elected as a justice of the peace? Does a resignation from an elected office terminate the original elected term?

Under Arkansas Constitution, Article 7, § 53, someone elected as county treasurer cannot, "during the term for which he or she has been elected," then be "appointed or elected" to justice of the peace. The dispositive issue here is that the Treasurer was elected to a term that ends December 31, 2026. It does not matter that the Treasurer resigns and fails to serve that term. Thus, because the Treasurer was elected to a term that ends December 31, 2026, he could not then also serve as a justice of the peace at any time before that date.

Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve.

Sincerely,
TIM GRIFFIN
Attorney General