Can a current Arkansas city alderman keep drawing a retirement benefit earned as a former mayor while also being paid as alderman?

Plain-English summary

Representative Marcus Richmond asked whether Arkansas's dual-office compensation law bars a current city alderman from drawing both alderman compensation and a retirement allowance earned while previously serving as mayor. The AG answered no under A.C.A. § 21-5-107. That law applies to someone "holding more than one" elected office and limits compensation to one "of the offices held." The alderman in the request held only one office at the time.

The statute defines compensation to include "retirement allowances," but the AG explained that the allowance for the earlier office was earned and accrued in return for service in that office. Receiving it now does not mean the person still holds the mayor's office. The AG cautioned that different facts might implicate other state statutes. A footnote identifies provisions concerning mayoral retirement benefits and duplicate retirement benefits for the same period of service; the opinion does not decide their application to the alderman's particular benefits.

What this means for you

Former mayors serving as aldermen

Under this opinion, A.C.A. § 21-5-107 does not prohibit alderman pay alongside an allowance from earlier mayoral service when you hold only the alderman office now. Check the circumstances of the retirement benefits before treating the opinion as approval under every statute: the AG specifically reserved the possibility that other state statutes might matter on different facts.

City attorneys and benefits administrators

Confirm which offices the official currently holds. The AG's answer turns on current officeholding, even though the statutory definition of compensation includes a retirement allowance. Footnote 5 points to A.C.A. §§ 24-12-123(a), 24-12-123(e), and 14-42-117 as potentially relevant retirement provisions. The opinion quotes same-period-of-service restrictions from the latter two provisions but gives no ruling about how they apply to this alderman's benefit.

Residents reviewing city compensation

Two city-related payments do not by themselves establish a violation of the dual-office law addressed here. The key fact in this opinion is that the alderman no longer holds the mayor's office. The AG's caution leaves any issue under other retirement statutes to the relevant facts.

Common questions

Does "compensation" include a retirement allowance?
Yes. A.C.A. § 21-5-107(b)(1), quoted in the opinion, includes "retirement allowances" along with salaries and other benefits. The AG says that definition does not extend the current-officeholding rule to an office the person previously held.

What if an official currently holds two elected offices?
The opinion quotes § 21-5-107(a)(1): someone "holding more than one" elected office must "receive compensation from only one…of the offices held." A footnote quotes the provision requiring such an official to select the paying office by filing a statement with the Secretary of State and each governmental entity's disbursing officer.

Did the AG ignore other retirement laws?
No. Footnote 5 cites A.C.A. § 24-12-123(a) on mayoral retirement requirements. It quotes § 24-12-123(e) on a mayor's city retirement benefit and another state-authorized plan for the same period of service. It also quotes § 14-42-117 on an elected city official who participates in another city retirement plan for the same period. The AG gave these as a caution about other facts and statutes, without deciding whether this alderman's payments violate either provision.

Source

• Official Arkansas Attorney General opinion search: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/ (Opinion No. 2024-044, May 22, 2024; official two-page PDF, including footnotes)

Original opinion text

Opinion No. 2024-044

May 22, 2024

The Honorable Marcus E. Richmond
State Representative
10509 S and G Circle Lane
Harvey, Arkansas 72841

Dear Representative Richmond:

I am writing in response to your request for my opinion about elected officials receiving “compensation” for more than one office.

Arkansas Code § 21-5-107(a) prohibits someone holding more than one public office from receiving “compensation” for more than one of those offices. Arkansas Code
§ 21-5-107(b)(1) defines “compensation” to include “all salaries, retirement allowances, group insurance, medical benefits, and anything else of value that a governmental entity provides in return for the services of its officers.” You ask if, under A.C.A. § 21-5-107, a current city alderman, who was previously the mayor, may receive compensation for being an alderman while also receiving a retirement allowance for being the former mayor.1

RESPONSE

Arkansas Code § 21-5-107 does not prohibit a public official who holds only one elected office from simultaneously receiving his or her (1) retirement allowance from a formerly held elected office and (2) compensation from a currently held elected office.

1
You also asked: “Alternatively, if he or she cannot accept compensation for the elected position and his or her retirement allowance simultaneously, should the elected official mentioned herein be allowed to choose between his or her compensation or retirement allowance?” Because of my response to your main question, this second question is moot. The Honorable Marcus E. Richmond State Representative Opinion No. 2024-044 Page 2

DISCUSSION

Under A.C.A. § 21-5-107(a)(1), someone “holding more than one” elected office must “receive compensation from only one…of the offices held.”2 These present-tense words mean to currently “possess or occupy” or “to be in…administration of” that office.3 Here, the alderman, despite formerly serving as mayor, currently holds only one office. Because he does not simultaneously hold multiple elective offices, the person in question is not prohibited under § 21-5-107(a)(1) from simultaneously receiving (1) retirement allowances from a formerly held elected position and (2) compensation from his current elected position. And while a retired official may not use “retirement allowances” until retirement, those allowances are earned and accrued “in return for the services” of that elected official as “compensation” when they hold office.4

Although the situation you indicate is not prohibited under § 21-5-107, I caution that there may be different situations or facts with which I have not been provided that could implicate other state statutes.5

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

Sincerely,

TIM GRIFFIN
Attorney General

2
(Emphases added); see also A.C.A. § 21-5-107(a)(2) (requiring such an official to “select the office from which he or she may receive compensation by filing a statement with the Secretary of State and the disbursing officer of each governmental entity in which he or she holds an elective office” (emphasis added)). 3 BLACK’S LAW DICTIONARY 878–79 (11th ed. 2019).
4
A.C.A. § 21-5-107(b)(1). The mere fact that “compensation” includes “retirement allowances” does not mean that, as provided in your opinion request, “the statute applies not only to offices currently held, but also offices previously held.” See A.C.A. § 21-5-107(b)(1) (defining “compensation” to include “retirement allowances”). 5 See A.C.A. §§ 24-12-123(a) (providing requirements for mayoral retirement benefits), 24-12-123(e) (“[A] mayor who receives a retirement benefit from a city…shall not be entitled to any retirement benefit based upon service for the same period from any other state authorized plan.”), 14-42-117 (providing that an elected city official who is entitled to retirement benefits “and who also participates in another retirement plan established by the city for the same period of service shall be entitled to only one (1) retirement benefit”).