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 city, county, or regional library board while serving in the Arkansas General Assembly. The Attorney General answered no. Arkansas Constitution article 5, § 10 bars a legislator from being appointed or elected to a "civil office under this State" during the term for which the legislator was elected. The opinion's footnote 3 says resigning from the legislature does not end that restriction before the elected term expires.

The opinion treats a seat on any local library board as a civil office. The two features are the board's exercise of state sovereign power and the fact that law creates and defines the position. Local library boards can receive, control, and spend public money, and statutes establish their members' duties and other terms. The opinion also notes that an administrative county library board may be designated a county agency under A.C.A. § 14-14-705(b)(2)(A). The AG finds no separate statutory ban and does not rely on the common-law incompatibility doctrine.

What this means for you

Sitting legislators considering a library board seat

Do not accept a city, county, or regional library board appointment during the legislative term for which you were elected. The AG's conclusion covers all three types of local library board. Footnote 3 says resigning from the General Assembly during that term does not remove the article 5, § 10 problem.

Library boards and appointing authorities

Check whether a prospective appointee was elected to a current General Assembly term before appointing that person. The opinion concludes such a member may not serve on a local library board during that term. It does not decide the legal effect of an appointment already made or the validity of any board vote.

Attorneys advising on other public positions

The opinion applies the civil-office test: the position must exercise some sovereign power and be created and defined by law. The AG examines the particular duties and statutory terms of library boards. The conclusion here concerns city, county, and regional library board seats; it does not decide the status of every other local board.

Common questions

Does the restriction cover an unpaid library board position?
Yes. Footnote 18 says compensation is not a criterion for deciding whether a position is a civil office.

Does it cover a regional library board?
Yes. The AG expressly concludes that a seat on any local library board, including a regional board, is a civil office under article 5, § 10.

Would resigning from the legislature permit the appointment during the same legislative term? No. Footnote 3 says the problem endures throughout the full term for which the legislator was elected.

What if someone already serves on a library board and is then elected to the General Assembly? That timing was not presented to the AG. The opinion addresses a sitting representative approached about joining a library board and does not specify a resignation or oath date for the reverse sequence.

Are advisory library boards exempt?
The opinion makes no such exception. It concludes that a seat on any local library board is a civil office. It mentions that a county quorum court may establish an advisory or administrative board, but does not exempt advisory boards from its answer.

Background and statutory framework

Ark. Const. art. 5, § 10 prohibits a senator or representative from being appointed or elected to a civil office under the state during the term for which that legislator was elected. The opinion describes a civil office using the Arkansas Supreme Court's criteria: a position exercising a portion of the state's sovereign power and created by law with requirements set by law.

The AG cites statutes authorizing municipal, county, and regional library boards to receive, control, and spend public money. Statutes also establish board-member duties, terms or appointment arrangements, and other requirements. The PDF footnotes explain that regional board appointment length is set by the participants in the regional system, rather than by a statutory fixed term; regional board members are drawn from municipal and county library boards.

Citations

• Ark. Const. art. 5, § 10
• A.C.A. § 14-14-705(b)(2)(A)
• A.C.A. § 13-2-401(d)
• St. Bd. of Workforce Educ. v. King, 336 Ark. 409, 416, 985 S.W.2d 731, 734 (1999)
• Lucas v. Futrall, 84 Ark. 540, 547, 106 S.W. 667, 669 (1907)
• Ark. Att’y Gen. Op. 2005-183

Source

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

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. 1

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.2 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

1
For clarity, I have combined your two questions into one.
2
The doctrine of incompatibility applies when one position is subordinate to the other in some manner; thus, one person holding both positions is a conflict of interest. Thompson v. Roberts, 333 Ark. 544, 549, 970 S.W.2d 239, 241 (1998). The Honorable Steve Unger State Representative Opinion No. 2023-100 Page 2

which he shall have been elected.” 3 The Arkansas Supreme Court has defined “civil office” as a position that (1) exercises a portion of the state’s sovereign power 4 and (2) is created by law with the position’s requirements set by law. 5

1. Sovereign Power. The Court has held that a “civil office” is “a grant and possession” of the
   state’s sovereign power.” 6 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.” 7 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.” 8

In determining whether a position exercises sovereign power, the Court first reviews the duties performed by the board or commission at issue. 9 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. 10 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.” 11

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. 12 In another opinion, my

3
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. 4 St. Bd. of Workforce Educ. v. King, 336 Ark. 409, 416, 985 S.W.2d 731, 734 (1999) (internal quotations and citations omitted). 5 Lucas v. Futrall, 84 Ark. 540, 547, 106 S.W. 667, 669 (1907).
6
King, 336 Ark. at 416, 985 S.W.2d at 734 (“Sovereign power is the authority of the State to act.”) (internal quotations and citations omitted). See Wood v. Miller, 154 Ark. 318, 323, 242 S.W. 573, 575 (1922) (“[W]hether an office has been created by the Constitution itself, or by statute…, the [office]…is vested with…the power of government, whether [that power] is legislative, judicial, or executive in its character”) (internal quotations and citations omitted). 7 King, 336 Ark. at 416, 985 S.W.2d at 734 (internal citations omitted).
8
Id. at 417, 985 S.W.2d at 734 (internal quotations and citations omitted).
9
Id. at 415, 985 S.W.2d at 733.
10
Id. at 418, 985 S.W.2d at 735.
11
Id., 985 S.W.2d at 735.
12
Ark. Att’y Gen. Op. 2015-142. See Wood, 154 Ark. at 323, 242 S.W. at 575 (holding that a municipal judge is a “civil office”). The Honorable Steve Unger State Representative Opinion No. 2023-100 Page 3

predecessor opined that a county library board member was a “civil office” because the board was authorized to receive, control, and spend public moneys. 13

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.” 14

2. 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….” 15 A “civil office” is created by law, with the tenure, compensation, and duties of the position also fixed by law. 16 Other requirements for a “civil office” often include taking an oath of office, receiving a formal appointment or commission, or giving a bond. 17 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. 18

3. 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. 19 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.” 20

13
Ark. Att’y Gen. Op. 2017-114.
14
Id.
15
Lucas, 84 Ark. at 547, 106 S.W. at 669.
16
E.g., Martindale v. Honey, 259 Ark. 416, 533 S.W.2d 198 (1976) (holding deputy prosecuting attorney is a “civil office”); Haynes v. Riales, 226 Ark. 370, 290 S.W.2d 7 (1956) (holding auditor for burial association board is not a “civil office”). 17 E.g., Martindale v. Honey, 259 Ark. 416, 533 S.W.2d 198 (1976); Haynes v. Riales, 226 Ark. 370, 290 S.W.2d 7 (1956). But the Court has consistently held that none of these additional requirements are conclusive. Ark. Att’y Gen. Op. 2007-045.

Whether the position is compensated is not a criterion for determining if the position is a “civil office.” Williams v. 18

Douglas, 251 Ark. 555, 557, 473 S.W.2d 896, 898 (1971); Ark. Att’y Gen. Op. 96-147. 19 A.C.A. §§ 13-2-503–13-2-505 (municipal), § 13-2-905(a)(2)(E) (regional), § 13-2-404(b)–(c), § 13-2-405 (county).
20
If a quorum court establishes a library board, the library board may be an advisory board or an administrative board. A.C.A. § 13-2-401(d). The Honorable Steve Unger State Representative Opinion No. 2023-100 Page 4

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, 21 any compensation for the member, 22 and the duties of the member. 23 In addition, the law requires a board member of municipal or county library boards to take an oath of office 24 and for a board member to be appointed to the position. 25

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

21
A.C.A. § 13-2-502(c) (municipal), § 13-2-404(b)–(c), § 14-14-705(b)(1)(D), § 14-14-705(b)(2)(F) (county). There is no statutory appointment length for a member of a regional library board. A.C.A. § 13-2-905(a)(2)(E). Instead, the participants in the regional library system determine the length of the member’s appointment. Id. 22 A.C.A. § 13-2-502(b) (municipal), § 13-2-904(d)(1) (regional). While municipal and regional library board members are not compensated, a county library board member may be compensated. See A.C.A. § 13-2-404(a)(3). 23 A.C.A. §§ 13-2-502–13-2-509 (municipal), §§ 13-2-904–13-2-907 (regional), §§ 13-2-404–13-2-408,
§ 14-14-705, § 14-14-707 (county).
24
A.C.A. § 13-2-502(a)(3) (municipal), § 14-14-705(a)(3)(c) (county). While there is no statutory requirement that members of regional library boards take an oath of office, those boards are composed of members from municipal and county library boards. A.C.A. § 13-2-904(a)(1)(A). 25 A.C.A. § 13-2-502(a)(1) (municipal), § 14-14-705(b)(1)(B), § 14-14-705(b)(2)(D) (county).