Do Arkansas planning and development districts, area agencies on aging, and community health agencies have to follow the state ban on COVID-19 vaccine mandates?

Plain-English summary

Representative Kenneth Ferguson asked whether organizations receiving federal money through Arkansas must follow Acts 4 and 10 of the First Extraordinary Session of 2023, codified at A.C.A. § 20-7-146. The acts prohibit covered state and local entities from mandating COVID-19 vaccination and from discriminating against or coercing someone for refusing it. The Attorney General says funding alone does not turn a private business into a state agency, entity, or political subdivision. The opinion instead asks whether the named organizations are political subdivisions under the acts.

The AG concludes that the eight planning and development districts likely are political subdivisions and thus subject to the acts. Area agencies on aging, described in earlier AG opinions as private nonprofit corporations, are not political subdivisions. The AG lacked enough information about community health organizations' structure and services to classify them.

The opinion's footnote 3 adds a specific federal-funding provision: if a covered state or local entity determines that necessary federal funding depends on an individual receiving a COVID-19 vaccine, A.C.A. § 20-7-146(f) requires Legislative Council approval before the entity mandates or requires vaccination in that instance. This does not change the AG's threshold inquiry into whether an organization is covered by the acts.

What this means for you

Planning and development district directors

The AG concludes that these districts likely count as political subdivisions. Review a proposed COVID-19 vaccination requirement and any action against a person who refuses in light of § 20-7-146(b) and (e). If necessary federal funding depends on vaccination, footnote 3 says a covered entity needs Legislative Council approval before requiring it in that instance under subsection (f).

Area agencies on aging

The opinion relies on earlier AG descriptions of area agencies on aging as private nonprofits and concludes they are not political subdivisions for these acts. Merely receiving government funds does not change that classification under the AG's analysis. The opinion does not decide other laws governing vaccination policies.

Community health organizations

The AG makes no categorical finding about this group. Determine the particular organization's structure and services before applying the political-subdivision test. The opinion supplies no conclusion for a federally qualified health center, hospital district, or other particular type of community health organization.

Common questions

Does accepting state or federal funding make a private organization a political subdivision? No. The opinion expressly says funding alone is insufficient to transform a private business into a state agency, entity, or political subdivision.

Why are planning and development districts likely covered?
The AG says they likely meet the four aspects of the Arkansas Supreme Court's political-subdivision test: territory and inhabitants, public advantage, governmental functions, and locally committed government power. The opinion also notes their statutory recognition and boards largely composed of elected local officials.

Are area agencies on aging covered as political subdivisions? No, according to this opinion. It treats them as private nonprofit corporations and follows earlier AG opinions finding that such corporations are not political subdivisions.

Did the AG decide whether community health organizations are covered? No. It lacked facts about organizational structure and services.

What does the opinion say about funding conditioned on vaccination? Footnote 3 quotes § 20-7-146(f): a covered entity determining that necessary federal funding depends on vaccination must receive Legislative Council approval before mandating or requiring it in that instance.

Background and statutory framework

A.C.A. § 20-7-146(b) and (e) contain the vaccination mandate, discrimination, and coercion prohibitions discussed in the opinion. Subsection (f), quoted in footnote 3, addresses necessary federal funding conditioned on vaccination. The acts do not define "political subdivision," so the AG applies the four-part test described in Dermott Special Sch. Dist. v. Johnson, 343 Ark. 90, 95, 32 S.W.3d 477, 480 (2000).

The opinion describes the eight planning and development districts recognized in A.C.A. § 14-166-201 et seq. as regional nonprofit associations with governing boards largely composed of local elected officials. It cites earlier AG opinions for the private nonprofit status of area agencies on aging. It states that an individual community health organization's structure and services are needed before its status can be determined.

Citations

• A.C.A. § 20-7-146(b)
• A.C.A. § 20-7-146(e)
• A.C.A. § 20-7-146(f)
• A.C.A. § 14-166-201(a)(1)
• Dermott Special Sch. Dist. v. Johnson, 343 Ark. 90, 95, 32 S.W.3d 477, 480 (2000)
• Ark. Att’y Gen. Ops. 1984-174, 1995-273, 2000-013

Source

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

Original opinion text

TIM GRIFFIN
ATTORNEY GENERAL

Opinion No. 2023-105
December 22, 2023
The Honorable Kenneth B. Ferguson
State Representative
Post Office Box 5661
Pine Bluff, Arkansas 71611
Dear Representative Ferguson:
I am writing in response to your request for my opinion on questions concerning two acts passed in the First Extraordinary Session of 2023: Act 4 and Act 10, both codified in A.C.A.
§ 20-7-146, which prohibit the state from mandating or requiring a COVID-19 vaccine or immunization. You specifically note that “several entities, including but not limited to the Area Agency on Aging, our planning and development districts, and our community health organizations/agencies, receive both state and federal funds for health care related matters. In many instances, these organizations are hybrid creations of the state where the federal funds simply ‘pass through’ to the state based entity.” You then ask “whether a state entity or agency that receives federal funds must comply and adhere to the requirements of these Act(s).” RESPONSE The answer to your question turns on whether the three types of entities you cite are considered political subdivisions for purposes of these two acts. For reasons explained in the opinion, I conclude that planning and development districts likely are political subdivisions, area agencies on aging are not, and I lack sufficient facts to come to a conclusion concerning community health organizations/agencies. DISCUSSION Under A.C.A. § 20-7-146, a state agency or entity, including any “political subdivision of the state…or a state or local official,” cannot “mandate or require” anyone to receive a COVID-19 vaccine or immunization.1 Nor can they “discriminate against or coerce in any way” anyone for refusing to receive a COVID-19 vaccine or immunization.2

1
A.C.A. § 20-7-146(b).
2
A.C.A. § 20-7-146(e).

323 CENTER STREET, SU ITE 200
LITTLE ROCK, ARKANSAS 72201
The Honorable Kenneth B. Ferguson
State Representative
Opinion No. 2023-105
Page 2

But merely receiving federal or state funds is insufficient to transform a private business into a state agency, state entity, or state political subdivision.3 Instead, the question here is whether those entities listed in your opinion request are “political subdivisions” under Acts 4 and 10 of the First Extraordinary Session of 2023.4 And, because the statute does not define “political subdivision,” we give the words their plain, ordinary, and usual meaning in common language.5 While neither Act defines “political subdivision,” several other state statutes define “political subdivision” to encompass cities,6 counties,7 school districts,8 improvement districts,9 local boards and commissions,10 and public corporations.11 And, in the absence of a statutory definition, the Arkansas Supreme Court in Dermott Special Sch. Dist. v. Johnson,12 requires one to apply the following multi-part test:

• Territory: They “embrace a certain territory and its inhabitants”;
• Public advantage: They are “organized for the public advantage, and not in the interest of particular individuals or classes”;
• Governmental functions: Their “chief design is the exercise of governmental functions”;13 and

3
Neither Act 4 nor Act 10 authorize this. And if the state, a state agency or entity, political subdivision, or state or local official “determines that necessary federal funding is dependent upon an individual in this state receiving a [COVID-19 vaccine or immunization]” that entity must receive Legislative Council approval before mandating or requiring the vaccine or immunization in that instance. A.C.A. § 20-7-146(f). 4 Because your opinion request does not indicate that any of the “several entities” noted in your request are a state agency or state entity, this opinion will analyze whether they are “political subdivisions.” 5 E.g., Walther v. FLIS Enters., Inc., 2018 Ark. 64, 6, 540 S.W.3d 264, 268.
6
A.C.A. §§ 2-18-112(a)(2) (including a “city…township, or municipal corporation”), 21-1-306 (including “cities”); see also A.C.A. § 12-50-103(8) (including “a city of any class, a town, or a county”). 7 A.C.A. §§ 12-9-102(4) and 12-9-401(6) (including “any county”).
8
A.C.A. § 14-77-102(4) (including “any…school district”); see also Dermott Special Sch. Dist. v. Johnson, 343 Ark. 90, 95, 32 S.W.3d 477, 480 (2000) (holding that school districts are political subdivisions). 9 A.C.A. § 15-6-103(5) (including “an improvement district”).
10
A.C.A. § 15-5-103(19) (including “any agency, board, commission…of [a city, town, or county]”).
11
A.C.A. §§ 21-1-303(4) (including “public corporations and entities whether organized and existing under charter or general law”), 15-5-103(19) (including “any…public corporation”). 12 343 Ark. 90, 95, 32 S.W.3d 477, 480 (2000).
13
E.g., Gilbreath v. E. Arkansas Plan. & Dev. Dist., Inc., 471 F. Supp. 912, 922 (E.D. Ark. 1979) (holding that a nonprofit corporation—governed by a board of directors, the majority of which are local elected The Honorable Kenneth B. Ferguson State Representative Opinion No. 2023-105 Page 3

• Committed power: Their “electors residing within each is, to some extent, committ[ing] the power of local government, to be wielded either mediately or immediately within their territory for the peculiar benefit of the people there residing.”14
In my opinion, a “planning and development district” likely is a “political subdivision.15 Under the Court’s multi-part test, a planning and development district likely meets each requirement—territory, public advantage, governmental functions, and committed power. Moreover, the General Assembly created planning and development districts by statute, which is a factor a court may also consider when determining whether an entity is a “political subdivision.”16 Under A.C.A. § 14-166-201 et seq., the General Assembly recognizes eight regional multi-county planning and development districts—each overseen by a governing board of directors largely composed of “elected officials of local governments”—to provide a range of services as “voluntary nonprofit associations.”17 Some of those services include promoting economic development, assisting “local governments and private organizations in obtaining federal grants and loans,” and preparing “comprehensive regional plans for economic development and improved government services.”18 Therefore, since planning and development districts likely are political subdivisions as that term is used in Act 4 and Act 10, such organizations are prohibited from mandating or requiring anyone to receive a COVID-19 vaccine or immunization, or discriminating against or coercing in any way anyone for refusing to receive a COVID-19 vaccine or immunization.

officials—and created by state law became “so entwined with governmental policies and so impregnated with a governmental character as to subject the conduct of the corporation to the institutional limitations placed upon state action”); Ark. Att’y Gen. Op. 2015-116. 14 See, e.g., Ark. Att’y Gen. Ops. 2015-116 (opining that the Southwest Arkansas Planning and Development District likely “meets the definition of a ‘political subdivision’ in this instance”), 2020-016; see also A.C.A.
§ 14-166-203 (providing that “[t]he operations…of planning and development districts shall be solely within the discretion and control of the local governing boards of directors of the respective districts…[and nothing] in this subchapter creates any power, authority, or control in any state agency over the management and operations of the organizations”). 15 For purposes of this opinion, I will assume that “planning and development district” means one of the eight planning and development districts in the state, such as the “Southeast Arkansas Economic Development District.” 16 E.g., Ark. Att’y Gen. Op. 2020-016; see also Masterson v. Stambuck, 321 Ark. 391, 399–400, 902 S.W.2d 803, 809 (1995) (distinguishing, for purposes of whether an entity was an “arm of the state,” between an entity created by statute versus an entity created simply as “a not-for-profit corporation for benevolent purposes”). 17 A.C.A. §§ 14-166-201(a)(1), 14-166-203(b).
18
A.C.A. § 14-166-201(a)(1).
The Honorable Kenneth B. Ferguson
State Representative
Opinion No. 2023-105
Page 4

But this office has consistently opined that private, nonprofit corporations—like an area agency on aging19—are not “political subdivisions.”20 And I lack sufficient information— such as organizational structure and the services provided—to definitively conclude whether a “community health organization/agency” is a “political subdivision.” Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve. Sincerely,

TIM GRIFFIN
Attorney General

19
E.g., Ark. Att’y Gen. Ops. 1984-174 (opining that agencies like Area Agencies on Aging are “private, non-profit organizations”), 1995-273 (“It is my understanding that, in Arkansas, area agencies on aging…are private, non-profit corporations.”). 20 E.g., Ark. Att’y Gen. Ops. 2000-013, 1984-174.