Can an Arkansas state representative or senator simultaneously serve on a city, county, or regional library board?
Plain-English summary
Representative Steve Unger asked whether he could join a local library board while continuing to serve in the Arkansas House of Representatives. The AG's answer is no, and resigning from the legislature first would not solve the problem because the constitutional bar runs for the full term to which he was elected.
The reason traces back to Arkansas Constitution article 5, § 10, which prohibits a member of the General Assembly from being "appointed or elected to any civil office under this State" during the legislator's term. To answer Representative Unger's question, the AG had to determine whether a city, county, or regional library board seat counts as a "civil office."
The Arkansas Supreme Court has defined a "civil office" as a position that (1) exercises a portion of the state's sovereign power and (2) is created by law with the position's requirements set by law. Both prongs are met for local library boards.
Sovereign power. Local library boards are statutorily authorized to receive, control, and spend public money. That alone makes them holders of sovereign power under Arkansas Supreme Court doctrine. County library boards have an additional ground: if they are established as administrative boards under A.C.A. § 14-14-705(b)(2)(A), they become "a body politic and corporate" and "an agency of the county government." That codifies their sovereign-power status.
Created and defined by law. Each form of library board (municipal, county, regional) has its term, compensation, duties, oath of office, and appointment procedures fixed by statute. The municipal and county statutes also require board members to take an oath of office, and require formal appointment, both classic features of a civil office.
The result: a state legislator cannot simultaneously hold a local library board seat. And the constitutional clock keeps running for the full term of the legislative office. So a representative who is elected to a two-year term cannot accept a library board appointment during those two years even by resigning early. Past AG opinions cited (Op. 2005-183) have emphasized this enduring nature of article 5, § 10.
What this means for you
Sitting state legislators
Decline any local library board appointment offered during your legislative term. Both elective and appointive paths to a civil office are barred. Resigning your House or Senate seat does not cure the prohibition because article 5, § 10 measures the bar against the term to which you were elected, not your actual service.
The library board prohibition is part of a broader constitutional ban on dual service. Before accepting any local board, commission, or position, check whether it qualifies as a civil office (sovereign power plus statutory creation). Other examples the AG and Arkansas courts have flagged: drainage improvement district commissioners (Op. 2015-142), county library board members (Op. 2017-114), soil conservation district directors, deputy prosecuting attorneys (Martindale v. Honey), and Workforce Education Board members (St. Bd. of Workforce Educ. v. King).
Candidates considering a run for the legislature
If you currently sit on a local library board and intend to run for the General Assembly, the bar starts when your legislative term begins, not when you take the oath. You will need to resign the library board seat before assuming the legislative office.
Library board chairs and library systems
Verify before accepting an appointment that the candidate is not a sitting member of the General Assembly and was not elected to a current legislative term. An appointment in violation of article 5, § 10 is constitutionally void and could undo board votes the appointee participated in.
Mayors, county judges, and other appointing authorities
If you are about to appoint a library board member, the AG's reading means you cannot appoint a sitting state legislator (or someone whose legislative term is still running) regardless of whether they are still serving. Confirm the candidate's status before making the appointment.
Municipal and city attorneys
When asked about dual-service eligibility, the AG opinion's two-part test is your starting point: does the position exercise sovereign power, and is it created and defined by law? If yes to both, it is a civil office. If your local government is structured to give the board taxing or spending authority, the sovereign-power prong is almost certainly met.
Common questions
Does this apply to advisory boards too?
The opinion turns on whether the board exercises sovereign power. An advisory body that only makes recommendations and does not handle public money or exercise governmental functions may not qualify as a civil office. But Arkansas county library boards established as administrative boards under § 14-14-705(b)(2)(A) clearly do qualify.
What about uncompensated board service?
Compensation is not a factor. Williams v. Douglas, 251 Ark. 555 (1971), and Op. 96-147 confirm that whether the position pays anything does not affect civil-office classification.
Can I serve on a regional library board instead?
The AG opined no. Regional library boards are also funded with public money and have statutory grants of authority. Their members serve as part of a body that exercises sovereign power. The same constitutional bar applies.
Does this bar apply during the campaign itself, before I'm sworn in?
The article 5, § 10 prohibition runs against the term to which you have been elected. The legal scholarship and prior AG opinions read this to begin with the legislative term, not the campaign. But many candidates resign earlier to avoid optics issues. Consult counsel for fact-specific timing.
What if I served on the board first and then was elected to the legislature?
You would need to resign the board seat before taking your legislative oath, because article 5, § 10 bars holding the civil office during the legislative term.
Can the General Assembly waive this for an individual member?
No. Article 5, § 10 is a constitutional provision. The legislature cannot waive constitutional disqualifications by ordinary legislation.
Background and statutory framework
Ark. Const. art. 5, § 10. "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."
Two-part civil-office test (St. Bd. of Workforce Educ. v. King, 336 Ark. 409, 985 S.W.2d 731 (1999); Lucas v. Futrall, 84 Ark. 540 (1907)). A civil office (1) exercises a portion of the state's sovereign power and (2) is created by law with its requirements set by law.
Doctrine of incompatibility (Thompson v. Roberts, 333 Ark. 544 (1998)). Separately limits dual service when one position is subordinate to the other. The AG concluded this doctrine likely does not apply here because library boards are not subordinate to the General Assembly in any direct sense.
Statutory grants to library boards. A.C.A. §§ 13-2-503 to 13-2-505 (municipal); A.C.A. § 13-2-905(a)(2)(E) (regional); A.C.A. § 13-2-404(b)–(c), § 13-2-405 (county). All authorize boards to receive, control, and spend public money.
Administrative county library board. A.C.A. § 14-14-705(b)(2)(A). When a county quorum court designates a library board as administrative, the board becomes "a body politic and corporate" and an "agency of the county government."
Oath of office and appointment requirements. A.C.A. § 13-2-502(a)(3) and § 14-14-705(a)(3)(c) (oath); A.C.A. § 13-2-502(a)(1), § 14-14-705(b)(1)(B), § 14-14-705(b)(2)(D) (appointment). Both factors support civil-office classification under prior AG opinions.
Citations
- Ark. Const. art. 5, § 10 (legislator dual-office bar)
- A.C.A. § 13-2-401(d) (advisory vs. administrative county library board)
- A.C.A. §§ 13-2-404 through 13-2-405 (county library board powers)
- A.C.A. §§ 13-2-502 through 13-2-505 (municipal library board structure and powers)
- A.C.A. §§ 13-2-904 through 13-2-905 (regional library board structure)
- A.C.A. § 14-14-705 (county quorum court library board provisions)
- Thompson v. Roberts, 333 Ark. 544, 970 S.W.2d 239 (1998)
- St. Bd. of Workforce Educ. v. King, 336 Ark. 409, 985 S.W.2d 731 (1999)
- Lucas v. Futrall, 84 Ark. 540, 106 S.W. 667 (1907)
- Wood v. Miller, 154 Ark. 318, 242 S.W. 573 (1922)
- Martindale v. Honey, 259 Ark. 416, 533 S.W.2d 198 (1976)
- Haynes v. Riales, 226 Ark. 370, 290 S.W.2d 7 (1956)
- Williams v. Douglas, 251 Ark. 555, 473 S.W.2d 896 (1971)
- Ark. Att'y Gen. Op. 2005-183, 2007-045, 2015-142, 2017-114, 96-147
Source
Original opinion text
Opinion No. 2023-100
December 12, 2023
The Honorable Steve Unger
State Representative
Post Office Box 1262
Springdale, Arkansas 72765
Dear Representative Unger:
You have requested my opinion regarding simultaneously serving as a member of the General Assembly and a member of a city, county, or regional library board. You report that, while serving as a state representative, you "have been approached to potentially join [a] local library board." You ask whether Arkansas law allows a member of the General Assembly to serve on a city, county, or regional library board.
BRIEF RESPONSE
No, article 5, § 10 of the Arkansas Constitution prohibits a member of the General Assembly from serving as a member of a local library board during the term for which the legislator was elected to serve in the General Assembly.
DISCUSSION
Certain forms of dual service are prohibited by the Arkansas Constitution, statutory law, or the common-law doctrine of incompatibility. No statute bans a state representative from serving as a board member for a local library, and I do not believe the doctrine of incompatibility would apply either. So I will address only the possible constitutional conflict with this dual service.
Article 5, § 10 of the Arkansas Constitution prohibits a member of the General Assembly from being "appointed or elected to any civil office under this State" during the member's "term for which he shall have been elected." Resigning as a member of the General Assembly does not resolve the problem, which endures throughout the full term to which the member was elected (Ark. Att'y Gen. Op. 2005-183). The Arkansas Supreme Court has defined "civil office" as a position that (1) exercises a portion of the state's sovereign power and (2) is created by law with the position's requirements set by law.
- Sovereign Power. The Court has held that a "civil office" is "a grant and possession" of the state's sovereign power. Article 5, § 10 protects against possible conflicts in interest between a member of the General Assembly who has the power and influence to create a "civil office" and the member's interest to hold the created "civil office." Article 5, § 10 also protects against separation-of-powers violations: "[N]o person serving within the legislative, executive, or judicial departments may exercise power belonging to one of the other departments."
In determining whether a position exercises sovereign power, the Court first reviews the duties performed by the board or commission at issue. For instance, the Court held that a position on the Board of Workforce Education was a "civil office" because the board oversaw vocational education in the state and administered state funds. Likewise, a position on the Capitol Arts and Grounds Commission was a "civil office" because the commission was "a direct decision-maker with enormous influence over the physical plant of the Capitol Building and its grounds as well as future expansion."
Similarly, this office has opined that positions in local government exercised the state's sovereign power. My predecessor opined that the position of a drainage improvement district commissioner was a "civil office" because the district exercised taxing power. In another opinion, my predecessor opined that a county library board member was a "civil office" because the board was authorized to receive, control, and spend public moneys.
In addition, this office has opined that a statute can designate a board or commission as having sovereign power. My predecessor opined that a director of a county soil conservation board was a "civil office" because the statute authorizing the soil conservation district noted that the district was "a body politic and corporate" and "a governmental subdivision of this state."
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Created and defined by law. In addition to exercising some of the state's sovereign power, a civil office must also be created and defined by law. The Court has explained that any "civil office" has a "continuing [duty], which is defined by rules prescribed by the government...." A "civil office" is created by law, with the tenure, compensation, and duties of the position also fixed by law. Other requirements for a "civil office" often include taking an oath of office, receiving a formal appointment or commission, or giving a bond. For this standard, the exact requirements of the position are not the focus. Instead, the focus is that those terms have been established by law. Whether the position is compensated is not a criterion for determining if the position is a "civil office."
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Application. It is my opinion that a seat on any local library board is a "civil office" under article 5, § 10. Local library boards exercise sovereign power because they are authorized to receive, control, and spend public moneys. Additionally, a county library board may also have sovereign power through statute. If a county library board is established as an administrative board under A.C.A. § 14-14-705(b)(2)(A), then the library board is "a body politic and corporate ... [and] the board shall be considered as an agency of the county government and occupy the same status as the county."
Further, the local library board member position is created by law, and the requirements for that position are set by law. Statutes establish the length of term for a local library board member, any compensation for the member, and the duties of the member. In addition, the law requires a board member of municipal or county library boards to take an oath of office and for a board member to be appointed to the position.
Since a local library board member is a "civil office" under article 5, § 10, a member of the General Assembly is prohibited from dual service as a member of a local library board.
Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General