Are Arkansas constitutional officers like the Governor, Auditor, and Treasurer subject to the state's general budgeting and procurement laws?
Plain-English summary
The Governor asked whether the seven constitutional officers of Arkansas (Governor, Lieutenant Governor, Auditor, Treasurer, Attorney General, Secretary of State, Land Commissioner) are subject to two pieces of state law: the General Accounting and Budgetary Procedures Law (GABPL), which sets state-agency budgeting and accounting rules, and A.C.A. § 25-8-106, which requires state agencies to use the state's marketing-and-redistribution (M&R) process for surplus property.
The AG's answer: no, with four supporting reasons.
Reason 1: Statutory text. The GABPL's general definition of "agencies" lists "agencies, boards, commissions, departments, and institutions" without "offices" or "officers." When the legislature wants to capture constitutional offices, it does so explicitly (e.g., "every... office of state government"). The general definition controls "unless otherwise necessary." This office has long opined that lists like this do not include constitutional offices unless they expressly name them or include "offices" or "officers."
Reason 2: Surplusage canon. Multiple GABPL subchapters expressly add "offices" to "agencies" when extending coverage. Subchapter 8 defines state agency to include "offices." Subchapter 22 includes "[e]very... office of state government." If the general definition already covered constitutional offices, these explicit additions would be unnecessary surplusage. The fact that the legislature added them shows the general definition does not capture offices.
Reason 3: Express legislative recognition. In 2019, the General Assembly added budget requirements for constitutional offices and explicitly stated it was not making them state agencies for state accounting and budgetary purposes. A 1967 statute (still on the books at A.C.A. § 25-8-102(b)) confirms that constitutional officers are exempt from "all or a part" of the GABPL, which would make no sense if no one were generally exempt.
Reason 4: Separation of powers. If the GABPL applied generally to the Governor, the Department of Finance and Administration Secretary (a legislatively created executive position) could override or approve gubernatorial decisions on budget classification transfers. That would subordinate the Governor (in whom the constitution vests "the supreme executive power") to a subordinate executive official, which is constitutionally suspect.
On A.C.A. § 25-8-106 (the M&R process): Same conclusion. The statute lists "state agencies, boards, commissions, departments, and colleges and universities" but does not include "offices" or "officers." Constitutional officers are not subject to M&R. Same separation-of-powers concern: requiring the Governor to use M&R run by the State Procurement Director (an appointee of an appointee) would subordinate the Governor to a downstream executive official.
What this means for you
Constitutional officers (and their staff)
Most of the GABPL does not apply to your office. You are not required to submit annual operations plans the same way state agencies must, follow the GABPL's general accounting and budgetary procedures, get DFA approval for budget transfers, or use the M&R process for surplus property. But specific GABPL provisions apply when the text says they do, and the cash funds of certain constitutional offices have been subject to enacted budget approval since 2019. Read each GABPL provision carefully to see whether it (1) lists your office, (2) uses "offices" or "officers," or (3) makes general use of "agencies" only.
Department of Finance and Administration staff
Treat constitutional offices differently from state agencies for general GABPL purposes. The Chief Fiscal Officer's authority over agencies under sections like § 19-4-522(c)(2) does not extend to constitutional offices. The Secretary cannot override or approve a constitutional office's budget classification transfer.
For provisions that explicitly include offices or expressly cover constitutional officers, your authority does extend. Examples: Subchapter 21 covers expenses of the seven elected constitutional officers, and Subchapter 22 covers grant review for "every... office of state government."
State legislators
If you want to extend a budgeting, accounting, or procurement requirement to constitutional offices, do so explicitly in the statutory text. Use "offices" or "officers" or expressly name constitutional officers. A general "agencies" reference will not capture them.
If the requirement would functionally subordinate the Governor (or another constitutional officer with vested executive power) to a legislatively created executive official, the requirement may run into separation-of-powers problems. Routes that work: setting standards the office must meet, requiring reports, attaching strings to appropriated funds. Routes that probably do not work: requiring a constitutional officer to get a subordinate official's approval for a discretionary decision within the officer's constitutional powers.
Constitutional law attorneys
The opinion is a useful primer on Arkansas's separation-of-powers doctrine as applied to budgeting. Article 4, § 1 divides powers into "three distinct departments." Article 6, § 2 vests "[t]he supreme executive power" in the Governor. Article 4, § 2 prohibits any one department from exercising the powers of another except as expressly directed by the constitution.
The opinion's separation-of-powers reasoning relies on the principle that the legislature cannot rearrange the constitutionally mandated executive hierarchy by subordinating the Governor to a legislatively created executive official (citing Op. 91-020). This is consistent with executive-power jurisprudence in Arkansas and many other states.
Auditor of State and other office staff
A.C.A. § 19-4-405(a) calls the Auditor of State an "office," consistent with the AG's reading. You are an office, not an agency, for general GABPL purposes. Specific GABPL provisions that include "offices" or expressly cover constitutional officers still apply.
Common questions
Which seven offices are "constitutional officers" in Arkansas?
Governor, Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State, Attorney General, and Commissioner of State Lands. These are the seven offices created by the Arkansas Constitution.
What is the GABPL?
The General Accounting and Budgetary Procedures Law, A.C.A. §§ 19-4-101 to -2202. It governs state-agency budgeting, accounting, audits, classification transfers, surplus disposal, travel allowances, and related fiscal matters. It is the umbrella statute for state fiscal administration.
What is M&R?
Marketing and Redistribution. A.C.A. § 25-8-106 requires state agencies, boards, commissions, departments, and colleges/universities to use the M&R process to dispose of surplus property. The process is run by the Office of State Procurement.
Why does the AG say constitutional officers are not "agencies"?
Statutory text plus surplusage canon plus express legislative recognition plus separation-of-powers concerns. The four-part argument is detailed in the opinion. Each point is independent; together they are a strong case.
What about provisions that name the Governor or the Auditor specifically?
Those apply. Many GABPL provisions explicitly cover constitutional officers (Subchapter 21 covers their expenses; Subchapter 22 includes "every... office of state government"; § 19-4-817 governs cash funds of certain constitutional offices). When the text says "offices" or names a constitutional officer, it applies.
Did the AG ever opine differently before?
The opinion notes a 1992 AG opinion (Op. 91-416) that briefly suggested constitutional offices must use M&R. But the 1992 opinion was unsupported by reasoning and just cited two statutes (§§ 19-4-1503 and 25-8-106) that, on the AG's current analysis, do not actually apply to constitutional officers. The current opinion implicitly disagrees with the 1992 statement.
What is the practical separation-of-powers concern with applying GABPL to the Governor?
The Department of Finance and Administration Secretary has authority under various GABPL provisions to approve, deny, or override agency fiscal decisions. If GABPL applied to the Governor, the Secretary would have power over the Governor's fiscal decisions. The Secretary is appointed by and serves at the Governor's pleasure (A.C.A. § 25-43-1503(b)), so making the Secretary's approval binding on the Governor would functionally invert the constitutional hierarchy. Article 6, § 2 vests "[t]he supreme executive power" in the Governor, not in subordinate executive officials.
Are constitutional officers subject to any state-agency rules?
Yes. Specific GABPL provisions apply when expressly extended. Constitutional officers are subject to FOIA. They are subject to the Auditor of State's audits. Various ethics, election, and conflict-of-interest rules apply. The non-application here is to the GABPL's general budgeting and accounting framework and to M&R, not to all state law.
Background and statutory framework
The constitutional offices. The Arkansas Constitution creates seven elected constitutional offices: Governor (Ark. Const. art. 6, § 1), Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State, Attorney General, and Commissioner of State Lands.
Separation of powers. Ark. Const. art. 4, §§ 1, 2 divide powers into three departments and prohibit one from exercising the others' powers except as constitutionally directed. Ark. Const. art. 6, § 2 vests "[t]he supreme executive power" in the Governor.
The GABPL's general "agencies" definition. A.C.A. § 19-4-102(a)(1)(A): "agencies" means "all of [Arkansas's] agencies, boards, commissions, departments, and institutions" unless otherwise necessary. The statute does not name "offices" or "officers."
Subchapter 8 definition. A.C.A. § 19-4-801(2)(A): "state agency" includes "all... agencies... [and] offices." Subsection (B) explicitly exempts certain constitutional offices.
Subchapter 22 definition. A.C.A. § 19-4-2201(a)(3): "state agency" includes "[e]very... office of state government whether executive, legislative, or judicial."
Other GABPL provisions distinguishing offices from agencies. A.C.A. §§ 19-4-202(a)(2) (administrative head of state agency vs. constitutional officer); 19-4-206(a)(1) (constitutional officer's prohibitions); 19-4-607(a), 19-4-609(a) (express exemptions of constitutional officers from "state agency" definitions); 19-4-901, 19-4-904(a)(1)(A) (travel allowances for "officers and employees of the state government," constitutional officers exempted).
The 1967 statute. A.C.A. § 25-8-102(b) confirms that constitutional officers are "exempt from... all or a part of the procedures set forth in... the General Accounting and Budgetary Procedures Law." This implies that the default rule excludes constitutional offices from the GABPL.
The 2019 statute. Act 678 of 2019, § 1(b), expressly stated the legislature's intent not to make constitutional officers state agencies for state accounting and budgetary procedures, not to require them to submit annual operations plans, not to apply procurement laws to them beyond existing application, and not to require legislative approval that would conflict with the Arkansas Constitution.
A.C.A. § 25-8-106 (M&R). Subsection (b)(2)(A): "state agencies, boards, commissions, departments, and colleges and universities are required... to utilize" M&R. The list does not include "offices" or "officers."
Office of State Procurement. A.C.A. § 19-11-216(a)(2): "The State Procurement Director shall be appointed by the Secretary of the Department of Transformation and Shared Services." A.C.A. § 25-43-1503(b): the Secretary is appointed by the Governor and serves at the Governor's pleasure. So the State Procurement Director is "an appointee of an appointee."
Statutory interpretation rules. Mississippi County v. City of Blytheville, 2018 Ark. 50, 538 S.W.3d 822 (Arkansas Supreme Court): ordinary meaning controls when text is unambiguous. Steve's Auto Center of Conway, Inc. v. Arkansas State Police, 2020 Ark. 58, 592 S.W.3d 695 (Arkansas Supreme Court): "construe the statute so that no word is left void, superfluous, or insignificant." Stay Strong, Status Quo v. Bradford, 2020 Ark. 331, 609 S.W.3d 367 (Arkansas Supreme Court): surplusage canon. Rogers v. Arkansas Department of Correction, 2022 Ark. 19, 638 S.W.3d 265 (Arkansas Supreme Court): consider the text as a whole.
Constitutional avoidance. Alpe v. Federal National Mortgage Ass'n, 2023 Ark. 58, at 2, 662 S.W.3d 650, 652 (Arkansas Supreme Court): "Any doubt as to the constitutionality of a statute must be resolved in favor of its constitutionality. If possible, we will construe a statute so that it is constitutional."
Citations
- A.C.A. §§ 19-4-101 to -2202 (GABPL)
- A.C.A. § 19-4-102(a)(1)(A) (general "agencies" definition)
- A.C.A. § 19-4-801(2)(A)–(B) (Subchapter 8 definition with offices)
- A.C.A. § 19-4-2201(a)(3) (Subchapter 22 definition with offices)
- A.C.A. § 19-4-2101 (Subchapter 21, expenses of elected constitutional officers)
- A.C.A. § 19-4-817 (cash funds of constitutional offices)
- A.C.A. § 25-8-102(b) (1967 statute on constitutional officer exemptions)
- A.C.A. § 25-8-106 (M&R requirement)
- A.C.A. §§ 19-11-216(a)(2), 25-43-1503(b) (State Procurement Director appointment)
- Ark. Const. art. 4, §§ 1, 2 (separation of powers)
- Ark. Const. art. 6, § 2 (supreme executive power in Governor)
- Act 678 of 2019, § 1(b) (express legislative non-coverage)
- Mississippi Cnty. v. City of Blytheville, 2018 Ark. 50, 538 S.W.3d 822
- Rogers v. Ark. Dep't of Corr., 2022 Ark. 19, 638 S.W.3d 265
- Steve's Auto Ctr. of Conway, Inc. v. Ark. State Police, 2020 Ark. 58, 592 S.W.3d 695
- Stay Strong, Status Quo v. Bradford, 2020 Ark. 331, 609 S.W.3d 367
- Alpe v. Fed. Nat'l Mortg. Ass'n, 2023 Ark. 58, 662 S.W.3d 650
- Ark. Att'y Gen. Op. 91-020 (separation-of-powers analysis)
- Ark. Att'y Gen. Op. 93-146 (lists without "offices" do not capture constitutional offices)
Source
Original opinion text
Opinion No. 2024-056
April 10, 2024
The Honorable Sarah Huckabee Sanders
Governor of Arkansas
500 Woodlane Street
Little Rock, Arkansas 72201
Dear Governor Sanders:
I am writing in response to your request for my opinion about whether Arkansas’s
constitutional offices1 are generally subject to the General Accounting and Budgetary
Procedures Law (GABPL)2 and A.C.A. § 25-8-106. You ask the following three questions:
1. Are constitutional offices “agencies” within the GABPL’s general definition of
“agencies,” which is codified at A.C.A § 19-4-102(a)(1)(A)?
2. If not, which sections of the GABPL apply to constitutional offices?
3. Are constitutional offices subject to the requirements in A.C.A. § 25-8-106?
RESPONSE
Constitutional offices are not “agencies” generally subject to the GABPL for four reasons.
First, the General Assembly usually is explicit if it intends to subject constitutional offices
to regulation. Except for a few of its provisions, the GABPL does not explicitly apply to
constitutional offices. Second, the provisions of the GABPL that explicitly apply to
constitutional offices would not need to do so if constitutional offices were already
generally subject to the GABPL. Third, the General Assembly has passed multiple pieces
of legislation explicitly recognizing that constitutional offices are not generally subject to
the GABPL. Fourth, if constitutional offices were generally subject to the GABPL, some
of its provisions would likely be unconstitutional.
1 For conciseness, I will use “constitutional offices” throughout this opinion when referring to constitutional
offices and officers.
2 A.C.A. §§ 19-4-101 to -2202. The Honorable Sarah Huckabee Sanders
Governor of Arkansas
Opinion No. 2024-056
Page 2
Similarly, A.C.A. § 25-8-106 does not apply to constitutional offices. First, it does not
explicitly identify constitutional offices as being subject to its regulations. Second, § 25-8-
106 would be constitutionally suspect if it applied to constitutional offices.
DISCUSSION
Question 1: Are constitutional offices “agencies” within the GABPL’s general definition
of “agencies,” which is codified at A.C.A. § 19-4-102(a)(1)(A)?
Constitutional offices are not included in the GABPL’s general definition of “agencies” for
four reasons.
First, the GABPL’s general definition of “agencies” identifies a detailed list of covered
entities (“all of [Arkansas’s] agencies, boards, commissions, departments, and
institutions”), but it does not include the terms “offices” or “officers.”3 This general
definition applies to the GABPL “unless otherwise necessary.”4 It is thus the statutory
definition that controls the scope of the word “agencies”; the purposes of the statute cannot
be used to substitute others’ judgment for the legislature’s in how best to accomplish that
purpose.5
As this office has long opined, when legislation enumerates a list of regulated entities, the
regulation extends to constitutional offices only if they are specifically named or the list
includes the term “offices” or “officers.”6 “Indeed, when the legislature has intended the
term ‘agency’ to include the term ‘office’ with respect to a particular chapter or subchapter
of the Code, it has specifically said so….”7 The GABPL’s general definition of “agencies”
does not explicitly include the “constitutional offices.”
Second, several subchapters and provisions of the GABPL explicitly apply to one or more
constitutional offices, in addition to “agencies”; this would make little sense if
3 A.C.A. § 19-4-102(a)(1)(A).
4 Id.
5 See Mississippi Cnty. v. City of Blytheville, 2018 Ark. 50, at 12–13, 538 S.W.3d 822, 830–31 (explaining
that “ordinary meaning” controls when a statute is unambiguous and only if a statute is ambiguous will courts
look go beyond a plain reading).
6 Ark. Att’y Gen. Op. 93-146 (opining that when a statute applies to “any agency, institution, department,
board or commission” but does explicitly apply to any “office,” constitutional offices are not covered by the
listed terms); see also Ark. Att’y Gen. Ops. 2019-046, 2002-176 (opining that when a statute uses “agency”
without defining it or including it in a list of other covered entities, constitutional offices are covered only if
the statutory context requires them to be covered).
7 Ark. Att’y Gen. Op. 93-146. The Honorable Sarah Huckabee Sanders
Governor of Arkansas
Opinion No. 2024-056
Page 3
constitutional offices were included in the general definition of “agencies.”8 For example,
Subchapter 8 defines “[s]tate agency,” in part, as “all…agencies…[and] offices.”9
Similarly, Subchapter 22 defines “[s]tate agency,” in part, as “[e]very…office of state
government whether executive, legislative, or judicial.”10 If the GABPL’s general
definition of “agencies” included constitutional offices, the addition of “offices” to the
definitions in Subchapters 8 and 22 would be unnecessary.11 That is particularly true for
Subchapter 8, which includes “agencies” and “offices” as different regulated entities. If the
word “agencies” included offices, Subchapter 8’s addition of “offices” would be
surplusage.12
Multiple other provisions of the GABPL also differentiate between a “state agency” and
“a constitutional officer.”13 Again, if the word “agencies” subsumed constitutional offices,
no distinction would be needed.
One might argue that a few provisions of the GABPL indicate that constitutional offices
are included in the general “agencies” definition. One provision prohibits “constitutional
officer[s]” from taking certain actions related to “his or her agency.”14 Similarly, in another
subchapter, two provisions expressly exclude “constitutional officers” from a general use
of “state agency.”15 While this office has opined that express exemptions from the general
definition can support “[t]he plain meaning[] of the GABPL’s” general definition of
8 E.g., Rogers v. Ark. Dep’t of Corr., 2022 Ark. 19, at 6, 638 S.W.3d 265, 269 (“It is a fundamental canon of
construction that we may consider the text as a whole to derive its meaning….”).
9 A.C.A. § 19-4-801(2)(A). This statute proceeds to explicitly exempt some of the constitutional offices.
A.C.A. § 19-4-801(2)(B) (excluding the Governor, among others, from the subchapter’s definition of “state
agency”).
10 A.C.A. § 19-4-2201(a)(3).
11 E.g., Steve’s Auto Ctr. of Conway, Inc. v. Ark. State Police, 2020 Ark. 58, at 6, 592 S.W.3d 695, 699 (“[W]e
construe the statute so that no word is left void, superfluous, or insignificant; and meaning and effect must
be given to every word in the statute if possible.”).
12 E.g., Stay Strong, Status Quo v. Bradford, 2020 Ark. 331, at 9, 609 S.W.3d 367 (“According to the
surplusage cannon of statutory construction, every phrase within a statute must be given meaning: ‘The courts
must lean in favor of a construction which will render every word operative, rather than one which may make
some idle or nugatory.’” (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 174 (2012)).
13 A.C.A. § 19-4-903(b)(3)(A)(ii); see also A.C.A. § 19-4-202(a)(2) (differentiating between a
“constitutional officer” and an “administrative head of [a] state agency”).
14 A.C.A. § 19-4-206(a)(1).
15 A.C.A. §§ 19-4-607(a), -609(a). Cf. Ark. Att’y Gen. Op. 2011-040 (opining that institutions of higher
education are “agencies” under the GABPL because the general definition explicitly includes “institutions”
and because institutions of higher education were expressly exempt from the general definition 11 times
throughout the GABPL). The Honorable Sarah Huckabee Sanders
Governor of Arkansas
Opinion No. 2024-056
Page 4
“agencies,”16 it cannot overcome the plain meaning. The GABPL’s general “agencies”
definition does not explicitly apply to constitutional offices, even though it includes an
extensive list of regulated entities. The “ordinary and usually accepted meaning in common
usage” of such an approach means that constitutional offices are not covered17; that is the
norm for both the GABPL, as explained above,18 and the entire Arkansas Code, as this
office has long opined.19 The GABPL should thus be read to apply to the constitutional
offices only when “necessary,” in the words of the GABPL.20
One might also point to A.C.A. § 19-4-904, which expressly exempts constitutional
officers, to argue that “agencies” generally includes constitutional officers.21 But those
regulations don’t apply to “agencies.” Instead, the Chief Fiscal Officer of the State—the
Secretary of the Department of Finance and Administration22—has authority to make
certain travel-allowance procedures “for all officers and employees of the state
government.”23 Thus, the constitutional officers needed to be exempted because they would
otherwise be explicitly included.
Third, the General Assembly has recognized that constitutional offices are not generally
subject to the GABPL. In 2019, the General Assembly made various changes to the
GABPL, including adding certain budget requirements for constitutional offices.24 In doing
so, the legislature made clear that constitutional offices are not generally subject to the
GABPL, saying “[i]t is not the intent of the General Assembly to”:
• “Make the constitutional officers…state agencies for the purposes of state
accounting and budgetary procedures”;
• “Require the constitutional officers…to submit annual operations plans that are the
same as the annual operations plans required for state agencies”;
16 Ark. Att’y Gen. Op. 2011-040.
17 Ark. Att’y Gen. Op. 93-146.
18 See also A.C.A. § 19-4-405(a) (calling the Auditor of State an “office”).
19 Ark. Att’y Gen. Op. 93-146.
20 A.C.A. § 19-4-102(a)(1)(A).
21 A.C.A. § 19-4-904(a)(1)(A).
22 A.C.A. § 19-1-201 (“The Secretary of the Department of Finance and Administration shall be the Chief
Fiscal Officer of the State.”).
23 A.C.A. § 19-4-901 (emphasis added).
24 Act 678 of 2019, § 4. The Honorable Sarah Huckabee Sanders
Governor of Arkansas
Opinion No. 2024-056
Page 5
• “Apply the procurement laws…to the constitutional officers…to the extent that the
procurement laws do not already apply”; or
• “Require legislative approval of any expenditure of an office…if such approval
would conflict with the Arkansas Constitution.”25
This position is nothing new. In 1967, the General Assembly passed a statute that is still
on the books today, confirming that “the elected constitutional officers of the state…are
exempt from…all or a part of the procedures set forth in…the General Accounting and
Budgetary Procedures Law.”26 This provision’s recognition that some constitutional
offices are exempt from “all” of the GABPL confirms, like the 2019 counterpart, that the
default rule for reading the GABPL is to exclude constitutional offices. If the exemptions
were referring only to express exemptions, the 1967 statute would make no sense because
no state entities are given an explicit, blanket exclusion from the GABPL.
Fourth, if the GABPL generally applied to the Governor, it would be constitutionally
suspect, potentially violating the separation of powers.27 The Arkansas Constitution divides
“[t]he powers of the government…into three distinct departments”: the legislative, the
executive, and the judicial.28 “No person or collection of persons, being of one of these
departments, shall exercise any power belonging to either of the others, except in the
instances…expressly directed or permitted” by the constitution.29 “The supreme executive
power” is “vested” in the Governor.30
Some provisions of the GABPL (if they applied generally to constitutional offices) would
make the Governor subordinate to a legislatively created executive official. For example,
under the GABPL, agencies must report to the Secretary of the Department of Finance and
Administration31 certain proposed budget-classification transfers.32 The Secretary then
25 Id. § 1(b).
26 A.C.A. § 25-8-102(b).
27 Cf. Alpe v. Fed. Nat’l Mortg. Ass’n, 2023 Ark. 58, at 2, 662 S.W.3d 650, 652 (“Any doubt as to the
constitutionality of a statute must be resolved in favor of its constitutionality. If possible, we will construe a
statute so that it is constitutional.” (citations omitted)).
28 Ark. Const. art. 4, § 1.
29 Ark. Const. art. 4, § 2.
30 Ark. Const. art. 6, § 2.
31 A.C.A. § 19-1-201 (“The Secretary of the Department of Finance and Administration shall be the Chief
Fiscal Officer of the State.”).
32 A.C.A. § 19-4-522(c)(2); see also A.C.A. § 19-4-1103(a) (requiring “each executive head of a state
agency” to follow certain “procedures established by the Chief Fiscal Officer of the State”); A.C.A. § 19-4-The Honorable Sarah Huckabee Sanders
Governor of Arkansas
Opinion No. 2024-056
Page 6
makes the ultimate decision to allow the transfer “if in his or her opinion it is in the best
interest of the state.”33 If the Governor had to take direction from the Secretary, the
Governor would no longer be exercising the “supreme executive power” over the regulated
classification transfers—the Secretary would be. As this office has opined in a similar
situation, the legislative branch cannot rearrange the constitutionally mandated hierarchy
of the executive branch by subordinating the Governor to a legislatively created executive
official.34 Such legislation would likely violate the separation of powers by taking the
constitutionally vested “supreme executive power”—even if only a part of it—from the
Governor and giving it to another executive official.
In sum, the GABPL’s general definition of “agencies” does not include constitutional
offices. Instead, the word “agencies” should only be read to apply to constitutional offices,
as the GABPL puts it, if “necessary.”35 This is confirmed by the statutory text, the General
Assembly’s repeated confirmations, and the potential unconstitutionality that would result
if the GABPL did generally apply to constitutional offices.
Question 2: If constitutional offices are not generally subject to the GABPL, which
sections of the GABPL apply to them?
Although constitutional offices are not subject to every aspect of the GABPL, there are
several provisions that do apply. For example, Subchapter 21 specifically applies to certain
expenses of the seven elected constitutional officers.36 Subchapter 22 also deviates from
the general definition to include “[e]very…office of state government whether executive,
legislative, or judicial” related to the review of certain grants.37 And since 2019, the cash
funds of certain constitutional offices have been “budgeted and proposed expenditures
approved by enactments of the General Assembly.”38
In short, the GABPL will apply to constitutional offices if the relevant provisions provide
that they apply either: (1) to one or more specific constitutional offices or (2) generally to
“offices” or “officers.”
1503 (giving the Chief Fiscal Officer of the State unilateral authority to transfer and sell state agencies’
property and equipment).
33 A.C.A. § 19-4-522(c)(2).
34 Ark. Att’y Gen. Op. 91-020.
35 A.C.A. § 19-4-102(a)(1)(A).
36 A.C.A. § 19-4-2101.
37 A.C.A. § 19-4-2201(a)(3).
38 A.C.A. § 19-4-817. The Honorable Sarah Huckabee Sanders
Governor of Arkansas
Opinion No. 2024-056
Page 7
Question 3: Are constitutional offices subject to the requirements in A.C.A. § 25-8-106?
Constitutional offices are not subject to the marketing-and-redistribution process (“M&R”)
under A.C.A. § 25-8-106. Under § 25-8-106, only “state agencies, boards, commissions,
departments, and colleges and universities are required…to utilize” M&R.39 Like the
GABPL’s general definition of “agencies,” this enumerated list does not identify “offices”
or “officers” as being required to use M&R. As explained above, when a statute identifies
an enumerated list of regulated entities and does not include the terms “office” or “officer,”
constitutional offices are not regulated.40
Also like the analysis above, if the Governor were required to use M&R, the statute would
likely violate the separation of powers.41 Under § 25-8-106, the Office of State
Procurement and its director control M&R. Thus, if the Governor were required to use
M&R, he or she would be made subordinate to another executive-branch official. The
Arkansas Constitution, however, places “[t]he supreme executive power” in the
Governor,42 not the State Procurement Director—an appointee of an appointee.43 This
would likely violate the separation of powers.44
Although two sentences in a 23-page Attorney General opinion from 1992 indicate that
constitutional offices must utilize M&R, that statement was not supported by any
reasoning.45 Instead of analyzing the law, the opinion merely cites two statutes—A.C.A.
§§ 19-4-1503 and 25-8-106—neither of which are applicable. As explained above, § 25-8-
106 does not apply to constitutional offices as a matter of text, and if it did, there would be
serious constitutional issues with it. Section 19-4-1503 of the GABPL does not require
constitutional offices to use M&R either. In fact, it doesn’t require any state agency to use
39 A.C.A. § 25-8-106(b)(2)(A).
40 Ark. Att’y Gen. Op. 93-146 (opining that when a statute applies to “any agency, institution, department,
board or commission” but does explicitly apply to any “office,” constitutional offices are not covered by the
listed terms); see also Ark. Att’y Gen. Ops. 2019-046, 2002-176 (opining that when a statute uses “agency”
without defining it or including it in a list of other covered entities, constitutional offices are covered only if
the statutory context requires them to be covered).
41 Cf. Alpe, 2023 Ark. 58, at 2, 662 S.W.3d at 652 (“Any doubt as to the constitutionality of a statute must be
resolved in favor of its constitutionality. If possible, we will construe a statute so that it is constitutional.”
(citations omitted)).
42 Ark. Const. art. 6, § 2.
43 A.C.A. § 19-11-216(a)(2) (“The State Procurement Director shall be appointed by the Secretary of the
Department of Transformation and Shared Services.”); A.C.A. § 25-43-1503(b) (“The secretary [of the
Department of Transformation and Shared Services] shall be appointed by the Governor, subject to
confirmation by the Senate, and shall serve at the pleasure of the Governor.”).
44 Ark. Att’y Gen. Op. 91-020.
45 Ark. Att’y Gen. Op. 91-416. The Honorable Sarah Huckabee Sanders
Governor of Arkansas
Opinion No. 2024-056
Page 8
M&R. Instead, it is directed only at the Secretary of the Department of Finance and
Administration, as the State’s Chief Fiscal Officer: “The Chief Fiscal Officer of the
State…may…[s]ell surplus property and equipment of any agency at a reasonable fair
value thereof as authorized by § 25-8-106.”46 Thus, § 19-4-1503 does not regulate state
agencies or constitutional offices.
In sum, constitutional offices are not required to use M&R under § 25-8-106 or § 19-4-
1503. The text is clear and is confirmed by the potential that the law would be
unconstitutional if applied to constitutional offices.
Deputy Attorney General Noah P. Watson prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General
46 A.C.A. § 19-4-1503(2).