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 the AG whether the Arkansas ban on COVID-19 vaccine mandates (Acts 4 and 10 of the First Extraordinary Session of 2023, codified at A.C.A. § 20-7-146) covers three categories of organizations that receive federal money through the state: Area Agencies on Aging, planning and development districts, and community health organizations. These are "hybrid" entities that are nominally private but are heavily entangled with state funding, programs, and oversight.
The AG framed the question as: are these entities "political subdivisions" of Arkansas? Acts 4 and 10 ban any state agency, state entity, or "political subdivision of the state" from mandating or requiring a COVID-19 vaccine, or discriminating against or coercing anyone who refuses. The acts do not define "political subdivision," so the AG had to apply the multi-part Dermott Special School District test from the Arkansas Supreme Court.
Under Dermott, a political subdivision is one that:
- Embraces a certain territory and its inhabitants.
- Is organized for the public advantage, not for particular individuals or classes.
- Has the chief design of exercising governmental functions.
- Has electors residing within it who, to some extent, commit local-government power to be wielded for the people of that area.
The AG's three answers:
Planning and development districts: likely covered. Arkansas's eight regional planning and development districts (created under A.C.A. §§ 14-166-201 et seq.) are governed by boards composed largely of elected local officials. They were created by statute, organized for the public benefit, and tasked with promoting economic development, helping local governments obtain federal grants and loans, and preparing comprehensive regional plans. The AG concluded that they likely meet each Dermott prong and therefore are political subdivisions bound by Acts 4 and 10.
Area Agencies on Aging: not covered. Long-standing AG opinions (Op. 1984-174, Op. 1995-273) classify Area Agencies on Aging as private, nonprofit corporations. They receive federal pass-through funds but are not creatures of statute and do not exercise sovereign power. The AG concluded they are not political subdivisions and are therefore outside Acts 4 and 10's reach.
Community health organizations: insufficient facts. Without specifics about a particular organization's structure, governance, and services, the AG declined to classify them. Some community health organizations are statutorily created federally qualified health centers; others are nonprofit corporations; the answer depends.
The AG also flagged that simply receiving federal or state funds does not transform a private business into a political subdivision. The funding flow alone is not the test.
What this means for you
Planning and development district directors
The AG's view is that your entity is bound by Acts 4 and 10. You may not require any employee or service recipient to receive a COVID-19 vaccine, and you may not discriminate against or coerce them for refusing. Review your HR policies, employment agreements, and any service-eligibility requirements with that in mind.
If your district determines that necessary federal funding is conditioned on someone receiving a COVID-19 vaccine, the statute requires Legislative Council approval before mandating the vaccine in that instance (A.C.A. § 20-7-146(f)). Build that approval step into any compliance plan.
Area Agencies on Aging directors
The AG's view, supported by long-standing opinions, is that your nonprofit is not a political subdivision and is therefore not bound by Acts 4 and 10. That does not foreclose other Arkansas or federal employment-law constraints on vaccine policies, and it does not insulate AAAs that change their corporate structure or take on unusual statutory duties from a future re-examination.
If your AAA does adopt a vaccine policy, document the legal analysis, including this opinion's classification of AAAs as private nonprofits. The status as a private actor matters for the legal framework that applies.
Community health agency administrators
Get specific legal advice on your organization's classification. The AG declined to draw a categorical line because community health organizations vary in structure. Key questions: Were you created by statute or by private incorporation? Are you governed by a board of elected local officials? Do you exercise sovereign power (taxing, spending public money under your own authority)? Are you a federally qualified health center, a hospital district, a private nonprofit, or something else?
If you are a private nonprofit FQHC, the AAA analysis likely applies and you are outside Acts 4 and 10. If you are a hospital district or another statutorily created body politic, you may be a political subdivision and bound by the acts.
HR managers and employment lawyers
Acts 4 and 10 cover three behaviors, all relating to COVID-19 vaccines: (1) mandating or requiring; (2) discriminating against; (3) coercing in any way. The "discrimination" and "coercion" prongs are broad. Stratified workplace policies (such as different mask, testing, or remote-work requirements based on vaccination status) may run into the discrimination prong even without a formal mandate. Get specific legal advice before adopting such policies in a covered entity.
State legislators
If your view is that Acts 4 and 10 should reach more entities than the AG's reading does (such as Area Agencies on Aging), a follow-up amendment could explicitly define "political subdivision" to include those entities. The current statutory language relies on the common-law Dermott test, which excludes private nonprofits.
Common questions
What are Acts 4 and 10 of the First Extraordinary Session of 2023?
Two related acts that prohibit Arkansas state and local government bodies from mandating COVID-19 vaccines. Both are codified at A.C.A. § 20-7-146.
Why does it matter whether an entity is a 'political subdivision'?
Because the acts only bind political subdivisions (plus state agencies and state entities). A purely private actor, even one that receives federal pass-through funding, is not bound by them.
Who decides whether a particular organization is a political subdivision?
Ultimately, an Arkansas court would decide if litigation arose. The AG opinion is persuasive but not binding. The Dermott Special School District test is the controlling framework.
Does receiving federal funds turn an entity into a state actor?
No. The AG explicitly notes that "merely receiving federal or state funds is insufficient to transform a private business into a state agency, state entity, or state political subdivision." The funding flow is not the test.
What's the federal-funding exception in the acts?
Under A.C.A. § 20-7-146(f), if a state actor or political subdivision determines that necessary federal funding depends on someone receiving a COVID-19 vaccine, that entity must obtain Legislative Council approval before mandating or requiring the vaccine in that instance. The exception is narrow and procedural; it does not give a blanket right to mandate.
What's a planning and development district?
One of eight regional multi-county nonprofit associations created under A.C.A. §§ 14-166-201 et seq. They serve as bodies that help local governments obtain grants and loans and prepare regional development plans. Their governing boards are largely composed of elected local officials.
Do these acts apply to private employers in Arkansas?
The acts focus on state and local government actors. Separate Arkansas legislation (e.g., on conscience and exemption rights in private employment) may govern private-sector vaccine policies, but those rules are outside this opinion's scope.
Background and statutory framework
A.C.A. § 20-7-146 (Acts 4 and 10 of 2023 1st Ex. Sess.). Prohibits the state, any state agency, state entity, political subdivision of the state, or state or local official from mandating or requiring anyone to receive a COVID-19 vaccine or immunization (subsection (b)). Also prohibits discrimination or coercion against anyone refusing (subsection (e)). Subsection (f) creates the federal-funding-dependent exception with Legislative Council approval.
Dermott Special Sch. Dist. v. Johnson, 343 Ark. 90, 32 S.W.3d 477 (2000). Provides the four-factor test for "political subdivision" used in this opinion: territory, public advantage, governmental functions, and committed local power.
Statutory definitions of "political subdivision." While not controlling here, several Arkansas statutes define the term to include cities, counties, school districts, improvement districts, local boards and commissions, and public corporations. See A.C.A. §§ 2-18-112(a)(2), 12-9-102(4), 12-9-401(6), 12-50-103(8), 14-77-102(4), 15-5-103(19), 15-6-103(5), 21-1-303(4), 21-1-306.
Planning and development district statute. A.C.A. §§ 14-166-201 to 14-166-203. Defines them as voluntary nonprofit associations governed by boards of elected local officials.
Long-standing AG classification of Area Agencies on Aging as private nonprofits. Op. 1984-174, Op. 1995-273, Op. 2000-013.
Statutory interpretation rule. Walther v. FLIS Enters., Inc., 2018 Ark. 64, requires giving statutory terms their plain, ordinary, and usual meaning when undefined.
Gilbreath v. E. Arkansas Plan. & Dev. Dist., Inc., 471 F. Supp. 912 (E.D. Ark. 1979). Held that a nonprofit corporation governed by elected local officials and created by state law became "so entwined with governmental policies and so impregnated with a governmental character" that it was treated as a state actor.
Citations
- A.C.A. § 20-7-146 (COVID-19 vaccine mandate prohibition)
- A.C.A. §§ 14-166-201 to 14-166-203 (planning and development districts)
- A.C.A. §§ 2-18-112, 12-9-102, 12-9-401, 12-50-103, 14-77-102, 15-5-103, 15-6-103, 21-1-303, 21-1-306 (statutory political-subdivision definitions)
- Acts 2023 First Extraordinary Session, Acts 4 and 10
- Walther v. FLIS Enters., Inc., 2018 Ark. 64, 540 S.W.3d 264
- Dermott Special Sch. Dist. v. Johnson, 343 Ark. 90, 32 S.W.3d 477 (2000)
- Gilbreath v. E. Arkansas Plan. & Dev. Dist., Inc., 471 F. Supp. 912 (E.D. Ark. 1979)
- Masterson v. Stambuck, 321 Ark. 391, 902 S.W.2d 803 (1995)
- Ark. Att'y Gen. Op. 1984-174, 1995-273, 2000-013, 2015-116, 2020-016
Source
Original opinion text
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. Nor can they "discriminate against or coerce in any way" anyone for refusing to receive a COVID-19 vaccine or immunization.
But merely receiving federal or state funds is insufficient to transform a private business into a state agency, state entity, or state political subdivision. 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. And, because the statute does not define "political subdivision," we give the words their plain, ordinary, and usual meaning in common language.
While neither Act defines "political subdivision," several other state statutes define "political subdivision" to encompass cities, counties, school districts, improvement districts, local boards and commissions, and public corporations. And, in the absence of a statutory definition, the Arkansas Supreme Court in Dermott Special Sch. Dist. v. Johnson, 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"; and
- 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."
In my opinion, a "planning and development district" likely is a "political subdivision." 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." 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." 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."
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.
But this office has consistently opined that private, nonprofit corporations—like an area agency on aging—are not "political subdivisions." 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