Our county planning board does not meet the new rural-residency rule in Act 519 of 2025. Do we have to fire current members right away, or can we phase the change in?

Plain-English summary

Act 519 of 2025 amended A.C.A. § 14-17-203(a) to require a majority of a county planning board’s voting members to reside in an unincorporated area of the county. The opinion says the act took effect on August 5, 2025 and applies to planning boards created before and after its passage. The act does not specify how a board should comply when its current membership does not meet the new ratio.

The Attorney General discusses four possible paths:

1. Addition. If the seats can lawfully be increased, the county judge may appoint additional members, subject to quorum court confirmation, as long as the board has between five and twelve members. The opinion says this can achieve compliance without removing a current member or dissolving the board.

2. Attrition. If the board cannot add enough members, current members may serve out their terms and vacancies may be filled with residents of unincorporated areas. The opinion says the board remains out of step with Act 519 until a majority of its members live in an unincorporated area.

3. Dissolution. The opinion says no statute or constitutional provision expressly authorizes or prohibits dissolving a county planning board. It distinguishes abolishing a board from removing individual members, but says a court may treat a dissolution as a removal if it is used as a pretext to replace particular members.

4. Subtraction. Removing individual members before their terms expire requires a county judge’s recommendation for cause and quorum court confirmation. The opinion says a court likely would not find that a member’s residence outside an unincorporated area is legal cause because that circumstance is not an act or omission, or misconduct, by the member.

For fixed-term planning board members who may be removed only for cause, the opinion identifies a property interest in the position and says they should receive reasonable notice and a fair opportunity to be heard before removal. If a board or position is abolished, the opinion treats that as different from removing an individual member, subject to its warning about pretext.

The opinion also discusses the de facto officer rule. It says that, even if a board loses lawful authority because it does not meet the residency requirement, its acts could still be valid under that rule. That discussion is conditional: it concerns a member who is a de facto officer and says the authority of such an officer may be challenged through quo warranto.

The Attorney General concludes that Act 519 is not retroactive. The opinion says a board that does not meet the residency requirement must determine the best path to comply.

What this means for you

County judges

The opinion identifies the county judge as the official who may appoint additional planning board members, subject to quorum court confirmation, and who may recommend removal for cause. It says a statutory change in the board’s required membership is unlikely, by itself, to qualify as legal cause for removing a current member.

Quorum court members

The opinion identifies quorum court confirmation as part of the appointment and for-cause-removal processes. It also says a quorum court may assume the powers, duties, and functions of the board when that action is implemented by ordinance.

County planning board members

A member serving a fixed term and subject to removal only for cause has a property interest in the position under the opinion’s due-process analysis. The member should receive reasonable notice and a fair opportunity to be heard before removal. Abolishing the board is analyzed differently, unless the abolition is a pretext for removing particular members.

County attorneys and other counsel

The opinion says the likelihood of litigation and exposure to liability are generally outside the scope of an Attorney General opinion and should be addressed by appropriate legal counsel. It also says local counsel is best positioned to advise a district or county on applying the policy to particular facts.

Common questions

Does Act 519 require every existing planning board member to leave immediately?

The opinion does not identify immediate removal as the only path. It discusses addition, attrition, dissolution, and subtraction as possible ways to address a board whose membership does not meet the new ratio.

Can a county remove members who live outside an unincorporated area?

The opinion says individual removal before the end of a term requires cause. It states that a court likely would not find the member’s residence to be legal cause because it does not reflect an act of commission or omission, or misconduct, by that member.

Can a county add rural-residing members instead?

If the seats can lawfully be increased, the county judge may appoint additional members, subject to quorum court confirmation, while keeping the board between five and twelve members.

What process is owed before removing a fixed-term member?

The opinion says a fixed-term member who may be removed only for cause has a property interest in the position and should receive reasonable notice and a fair opportunity to be heard before removal. It separately says that abolishing the board does not remove individual members, unless the abolition is treated as a pretext for removal.

Are a noncompliant board’s acts automatically invalid?

The opinion does not give that categorical assurance. It says the acts could still be valid under the de facto officer rule if the relevant member is a de facto officer. It says a de facto officer’s authority may be challenged in a quo warranto proceeding.

How can a de facto officer’s authority be challenged?

The opinion identifies a direct quo warranto proceeding as the method for challenging the authority of a de facto officer and says the remedies it discusses are available through a direct legal challenge rather than a collateral attack unrelated to the officer’s eligibility.

Background and statutory framework

Act 519 amended A.C.A. § 14-17-203(a) to require a majority of the voting members of a county planning board to reside in an unincorporated area of the county. The opinion says the statute does not explain how a board should restructure itself to meet that requirement.

The opinion discusses A.C.A. § 14-17-203(a)(1), which provides that “the county judge of any county may create a county planning board,” subject to quorum court approval. It says the total number of members may remain between five and twelve, and that A.C.A. § 14-17-203(f) allows a quorum court to assume the board’s powers, duties, and functions if implemented by ordinance. It discusses A.C.A. § 14-17-203(b) as requiring a county judge to recommend removal for cause, subject to quorum court confirmation.

For cause, the opinion quotes Williams v. Dent as “any act of commission or omission that … would stamp the person in question as unfit to occupy the position.” It also says Carswell v. Hammock requires a legal cause that “specially relates to and affects the administration of the office” and “directly affect[s] the rights and interests of the public.”

The opinion’s due-process analysis says that an appointed officer with a fixed term and removal only for cause has a property interest in the position. It cites Rockefeller v. Hogue for the proposition that an entity with power to remove a fixed-term officer for cause acts in a quasi-judicial capacity and must provide a fair proceeding and due process of law.

On abolition, the opinion discusses City of Pine Bluff v. S. States Police Benev. Ass’n, Inc. and City of Ward v. Ward Water & Sewer Sys. by Pehosh. It says abolishing a board is generally different from removing an individual member, while a pretextual dissolution may be treated as a removal.

On de facto officers, the opinion says that a person acting under color of title may be treated as a de facto officer and that public acts of a de facto officer could remain valid. It cites Bell v. State and explains that quo warranto is the direct proceeding for challenging the officer’s authority.

On retroactivity, the opinion says Act 519 does not expressly state or clearly implicate retroactive application, so the presumption against retroactivity is not overcome.

Citations

Statutes:

• A.C.A. § 14-17-203
• A.C.A. § 14-17-203(a)(4)
• A.C.A. § 14-17-203(b)
• A.C.A. § 14-17-203(f)

Cases:

• City of Pine Bluff v. S. States Police Benev. Ass’n, Inc., 373 Ark. 573, 578, 285 S.W.3d 217, 221 (2008)
• City of Ward v. Ward Water & Sewer Sys. by Pehosh, 280 Ark. 177, 179–80, 655 S.W.2d 454, 456 (1983)
• Williams v. Dent, 207 Ark. 440, 450, 181 S.W.2d 29, 34 (1944)
• Carswell v. Hammock, 127 Ark. 110, 191 S.W. 935, 936 (1917)
• Patton v. Vaughan, 39 Ark. 211, 215 (1882)
• Maddox v. State, 220 Ark. 762, 762–64, 249 S.W.2d 972, 972–73 (1952)
• Bell v. State, 334 Ark. 285, 298–301, 973 S.W.2d 806, 813–15 (1998)
• Rockefeller v. Hogue, 244 Ark. 1029, 1037–38, 429 S.W.2d 85, 90–91

Other AG opinions referenced:

• Opinion 2025-032
• Opinion 2008-116
• Opinions 2002-328, 2017-112

Source

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

Original opinion text

BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
Opinion No. 2025-068
November 18, 2025
The Honorable Clint Penzo
State Senator
Post Office Box 7988
Springdale, Arkansas 72766
Dear Senator Penzo:
I am writing in response to your request for my opinion concerning Act 519 of 2025. You report that in light of Act 519—which requires the majority of the voting members of a county planning board to reside in unincorporated areas of the county—a quorum court was advised by legal counsel “to disband the existing planning board and reappoint all new members to comply with the newly established requirement.” You also note that “an opposing interpretation asserts that existing, lawfully appointed and confirmed board members should be allowed to serve the remainder of their terms, with future appointments used to gradually rebalance the board” to comply with the act. Because Act 519 of 2025 did not contain an emergency clause or other specified effective date, it went into effect on August 5, 2025.1 The act applies to planning boards created before and after its passage.2 Against this background, you ask the following questions:

1. Does Act 519 require counties to immediately restructure their planning boards to comply
   with the rural residency requirement? Or may counties allow existing planning board members to finish their current terms, bringing the board into compliance through attrition and future appointments? 1 See Ark. Att’y Gen. Op. 2025-032 (opining that the effective date “of acts passed without an emergency clause or other specified effective date at the regular session of the 95th Arkansas General Assembly” was August 5, 2025). 2 E.g., Ark. Att’y Gen. Op. 2008-116 (noting that “[w]hen the legislature has intended to apply a new law only to districts created after a certain date, or to preserve prior law as to previously-created districts, it usually states as much in express terms”).

The Honorable Clint Penzo
State Senator
Opinion No. 2025-068
Page 2

2. If immediate compliance with Act 519 is required, may counties simply add members to
   their boards (within the twelve-member limit under 203(a)) to achieve the ratio required by Act 519 instead of eliminating existing members? Brief response: In response to your first two questions, Act 519 is currently in effect and applies to county planning boards created before and after its passage. This opinion discusses the four potential paths to compliance that you have raised: (1) addition; (2) attrition; (3) dissolution; or (4) subtraction.
3. Would the act of removing all members on an existing planning board prior to the
   expiration of their four-year term (and not for cause) expose a county to potential litigation: a. From members of the existing board who happen to reside in an unincorporated area of the county and who, despite not being a part of the problem Act 519 seeks to remedy, are nevertheless thrown out with the bath water? b. From all members who are prematurely removed given that, at the very most, Act 519 only requires a change of membership to a simple majority of its members to achieve the required ratio and thus never necessitates a wholesale removal of existing members?
4. Conversely, if the entire board is not removed, would the county be exposed to potential
   litigation for arbitrarily removing some members from office while arbitrarily leaving others to continue in their service? Brief response: In response to questions 3 and 4, both the likelihood of litigation and exposure to liability are generally outside the scope of an Attorney General opinion and should be addressed by the appropriate legal counsel. But concerning “arbitrarily removing some members from office while arbitrarily leaving others,” the government cannot “arbitrarily” remove a planning board member because members can be removed only for cause.
5. What, if any, due process rights are owed to existing members who may be stripped of their
   positions (and their compensation under 204(c)) if Act 519 is read to require immediate removal of some or all members on county planning boards? Brief response: Members of a county planning board who serve for a fixed term and who may be removed only “for cause” have a property interest in their positions and should be given reasonable notice and a fair opportunity to be heard before removal.
6. If Act 519 does require the removal of some or all of the current members on county
   planning boards, which county official or officials are legally authorized to decide who and how many members will be removed to comply with the Act?

The Honorable Clint Penzo
State Senator
Opinion No. 2025-068
Page 3
Brief response: If, for reasons discussed in the opinion, the member is a de facto officer, he or she can be removed by a court through a quo warranto action. Outside of such an action, the county judge may recommend removal for cause subject to the quorum court’s confirmation.

7. Once Act 519 takes effect, will county planning boards lose their lawful authority to act
   until they have satisfied this new residency ratio requirement?
   Brief response: Even if a board loses its lawful authority because it fails to meet Act 519’s residency requirements, the acts of the members as de facto officers would be valid until such officers are removed through a quo warranto proceeding. DISCUSSION Question 1: Does Act 519 require counties to immediately restructure their planning boards to comply with the rural residency requirement? Or may counties allow existing planning board members to finish their current terms, bringing the board into compliance through attrition and future appointments? Question 2: If immediate compliance with Act 519 is required, may counties simply add members to their boards (within the twelve-member limit under 203(a)) to achieve the ratio required by Act 519 instead of eliminating existing members?
8. Act 519’s requirements. Act 519 of 2025, which amends A.C.A. § 14-17-203(a), requires a
   “majority of the voting members of the county planning board” to “reside in an unincorporated area of the county.”3 The act, however, does not identify how county planning boards are supposed to comply with that new requirement. Your questions concern how a board can come into compliance.
9. Compliance. If the majority of a board’s voting members do not reside in an unincorporated
   area of the county, the board’s configuration does not comply with Act 519. Does this mean that the only way to comply is to remove individual current members or dissolve the entire board? It does not. There is more than one way to restructure the board, and you specifically ask about four options: (1) addition; (2) attrition; (3) dissolution; or (4) subtraction. 2.1. Addition. If the seats on the board can lawfully be increased, the county judge may appoint additional members to the county planning board—subject to the quorum court confirming the appointments—as long as the total number of members remains between five and twelve.4 This 3 Codified at A.C.A. § 14-17-203(a)(4). 4 A.C.A. § 14-17-203(a).

The Honorable Clint Penzo
State Senator
Opinion No. 2025-068
Page 4
method allows the county to comply without removing any current member or dissolving the entire board. 2.2. Attrition. If the county planning board cannot add enough new members to meet Act 519’s requirements, it can reduce the number of nonrural members through attrition—allowing current members to serve out their terms and replacing them with rural residents as vacancies arise.5 But this path means the board remains out of step with Act 519 until the majority of members reside in an unincorporated area of the county. 2.3. Dissolution. No statute or constitutional provision expressly authorizes a county government to dissolve a county planning board, but no statute or constitutional provision prohibits it either. Creating a county planning board is permissive: “the county judge of any county may create a county planning board,” subject to the quorum court’s approval.6 And a quorum court may “elect to assume the powers, duties, and functions of the board” if “implemented by ordinance.”7 The Arkansas Supreme Court has held that when a municipality has the authority to create a commission, it also has inherent authority to abolish it, provided there are no constitutional or statutory restrictions.8 Generally, abolishing a board or commission is not the same as removing members from the board.9 While dissolving or abolishing a county planning board may have “the obvious effect of separating” individual board members from their positions, the member “has not been removed[;] the office itself has been terminated.”10 Arkansas Code § 14-17-203 provides for the mechanism by which board members can be removed, but it should not be read to curtail the power of the county judge and quorum court to undo what they are “empowered to do.”11 But if the county judge and quorum court seek to dissolve or abolish the board as pretext for removing certain members to be replaced by others, courts may treat the acts as “removals” under 5 See Attrition, The American Heritage Dictionary 116 (5th ed. 2011) (defining “attrition” as the “gradual reduction in personnel or membership because of resignation, retirement, or death, often viewed in contrast to reduction from layoffs”). 6 A.C.A. § 14-17-203(a)(1). 7 Id. § 14-17-203(f). 8 See City of Pine Bluff v. S. States Police Benev. Ass’n, Inc., 373 Ark. 573, 578, 285 S.W.3d 217, 221 (2008); City of Ward v. Ward Water & Sewer Sys. by Pehosh, 280 Ark. 177, 179–80, 655 S.W.2d 454, 456 (1983). 9 Pine Bluff, 373 Ark. at 578, 285 S.W.3d at 221 (holding that “[i]n accordance with [] precedent and with [the Court’s] standard of review for statutory interpretation,” a removal for cause statute “applies only to the removal of individual commissioners, and not to the abolishment of a commission altogether”). 10 Ward, 280 Ark. at 178–79, 655 S.W.2d at 455 (interpreting a statute governing a city commission that contained similar language to the statutes concerning county planning boards). 11 See id.

The Honorable Clint Penzo
State Senator
Opinion No. 2025-068
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A.C.A. § 14-17-203,12
triggering A.C.A. § 14-17-203(b)’s “for cause” requirement, as discussed below.13 2.4. Subtraction. To achieve Act 519’s requirements by subtracting, or removing, individual members before their terms have expired, the county judge must recommend removal “for cause,” and the quorum court must confirm the recommendation.14 The applicable statutes do not define “for cause” or “cause.” But the Arkansas Supreme Court has determined that “cause” in this context means “any act of commission or omission that … would stamp the person in question as unfit to occupy the position,” such as misconduct.15 Further, it must be a “legal cause” that “specially relates to and affects the administration of the office” and “directly affect[s] the rights and interests of the public.”16 Where an “appointing power may remove for cause,” the appointing authority is also the “sole judge of the existence of the cause.”17 The question, then, is whether statutory amendments by the General Assembly, such as those changing the required make-up of a county planning board, constitute sufficient cause for removal. While some current board members may not reside in an unincorporated area of the county, a court likely would not find that this fact qualifies as a “legal cause” for removal because it does not reflect an “act of commission or omission” or misconduct by the individual member.

3. Retroactivity. One might be concerned that Act 519’s application to boards created before the
   act went into effect would render the Act retroactive. But, for reasons explained below, I do not believe that is the case. An act is retroactive if it expressly or impliedly alters the legal consequences of a past action or event.18 Courts presume that the General Assembly intends for its laws to apply only prospectively 12 See, e.g., id., 280 Ark. at 179, 655 S.W.2d at 455–56. 13 A.C.A. § 14-17-203(b). 14 Id. 15 Williams v. Dent, 207 Ark. 440, 450, 181 S.W.2d 29, 34 (1944). 16 Carswell v. Hammock, 127 Ark. 110, 191 S.W. 935, 936 (1917) (quoting State ex rel. Hart v. Common Council of City of Duluth, 53 Minn. 238, 244, 55 N.W. 118, 120 (1893)) (internal quotations omitted); see also For cause, Black’s Law Dictionary 783 (12th ed. 2024) (defining “for cause” as “[f]or a legal reason or ground”). 17 See Patton v. Vaughan, 39 Ark. 211, 215 (1882); see also Ark. Att’y Gen. Op. 87-5 (opining that what constitutes “cause” in a particular situation “is a subjective determination that must be made by the appropriate, responsible public officials”). 18 Ark. Att’y Gen. Ops. 2023-026, 2014-075, 2013-059. But see JurisDictionUSA, Inc. v. Loislaw.com, Inc., 357 Ark. 403, 411, 183 S.W.3d 560, 565 (2004) (noting that the retroactive application of an act must be “stated or implied so clearly and unequivocally as to eliminate any doubt”).

The Honorable Clint Penzo
State Senator
Opinion No. 2025-068
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to future acts and events.19
Laws should not be read as being retroactive if they may reasonably be read otherwise, and any doubt must be “resolved against retroactivity.”20 Act 519 is not retroactive. It does not expressly state or “clearly implicate” that it applies retroactively.21 Therefore, the presumption against retroactivity is not overcome and the act will not be considered retroactive.22 If the majority of the voting members of a county planning board do not reside in an unincorporated area of the county, the board must determine the best path to comply. Question 3: Would the act of removing all members on an existing planning board prior to the expiration of their four-year term (and not for cause) expose a county to potential litigation: a. From members of the existing board who happen to reside in an unincorporated area of the county and who, despite not being a part of the problem Act 519 seeks to remedy, are nevertheless thrown out with the bath water? b. From all members who are prematurely removed given that, at the very most, Act 519 only requires a change of membership to a simple majority of its members to achieve the required ratio and thus never necessitates a wholesale removal of existing members? Question 4: Conversely, if the entire board is not removed, would the county be exposed to potential litigation for arbitrarily removing some members from office while arbitrarily leaving others to continue in their service? While anyone can file a lawsuit, both the likelihood of litigation and exposure to liability are generally outside the scope of an Attorney General opinion and should be addressed by the appropriate legal counsel.23 On your question concerning “arbitrarily removing some members from office while arbitrarily leaving others,” the government cannot “arbitrarily” remove a planning board member because members can be removed only “for cause,” as discussed above.24 Below I will analyze whether 19 Bolin v. State, 2015 Ark. 149, 4, 459 S.W.3d 788, 791. 20 Arkansas Rural Med. Prac. Student Loan & Scholarship Bd. v. Luter, 292 Ark. 259, 261–62, 729 S.W.2d 402, 403 (1987) (internal quotations omitted). 21 Ark. Att’y Gen. Op. 2023-026. 22 Gannett River States Pub. Co. v. Arkansas Indus. Dev. Comm’n, 303 Ark. 684, 688, 799 S.W.2d 543, 546 (1990). 23 E.g., Ark. Att’y Gen. Ops. 2010-113, 2002-122, 2002-078, 87-240 (opining that the potential for litigation “dictates that the individuals posing these questions look to those from whom they ordinarily seek legal advice”). 24 See A.C.A. § 14-17-203(b).

The Honorable Clint Penzo
State Senator
Opinion No. 2025-068
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due process rights may apply. Additionally, if for reasons discussed further below, the member is a de facto officer, he or she can be removed by a court through a quo warranto action. Question 5: What, if any, due process rights are owed to existing members who may be stripped of their positions (and their compensation under 204(c)) if Act 519 is read to require immediate removal of some or all members on county planning boards? To establish a procedural due process violation under either the U.S. Constitution or the Arkansas Constitution in this context, a board member must first show that he or she has a property interest in the planning board membership and that a government’s acts deprived the member of that property interest without notice or an opportunity to be heard.25 Thus, the key question is whether a board member has a property interest in continued membership on the board. If not, due process protections do not apply. A property interest must arise from a source independent of the constitution, such as state law or a contract.26 When an appointed public “officer” does not serve at the pleasure of another official, but instead holds office subject to removal for specified reasons, that officer has a property interest in the position and must be given notice and an opportunity to be heard before removal.27 These due process safeguards also apply if an officer is appointed to a fixed term and can only be removed “for cause,” even if the statute does not provide specific grounds for removal.28 A public “office” typically involves the exercise of some of the State’s sovereign power; its tenure, compensation, and duties are typically fixed by law; and the position typically requires the taking of “an oath of office, the receipt of a formal commission, and the giving of a bond … although no 25 See, e.g., Land v. BAS, LLC, 2025 Ark. 107, 5, 713 S.W.3d 1, 6 (analyzing a due process claim under the Fourteenth Amendment of the U.S. Constitution); City of Little Rock v. Alexander Apartments, LLC, 2020 Ark. 12, 8, 592 S.W.3d 224, 230 (analyzing a due process claim under the Arkansas Constitution); see also U.S. Const. amend. XIV, § 1 (“[N]or shall any State deprive any person of life, liberty, or property, without due process of law.”). 26 Jasper Sch. Dist. No. 1 of Newton Cnty. v. Cooper, 2014 Ark. 390, 9, 441 S.W.3d 11, 16. 27 Rockefeller v. Hogue, 244 Ark. 1029, 1037–38, 429 S.W.2d 85, 90–91; Lucas v. Futrall, 84 Ark. 540, 106 S.W. 667, 671 (1907). 28 Patton, 39 Ark. at 213 (noting that “[t]he power to remove ‘for cause’ can only be exercised for just cause after opportunity for defense”); Williams, 207 Ark. at 449–50, 181 S.W.2d at 33–34 (citing to a collection of cases contained in American Jurisprudence that due process must also be given “where a municipal officer is … appointed for a fixed term, and provision is made generally for his removal for cause”) (internal quotations omitted); Rockefeller, 244 Ark. at 1039, 429 S.W.2d at 91 (holding that any entity “having the power to remove, for cause, an officer serving a fixed term acts in a quasi-judicial capacity in conducting a hearing” and the “procedure must assure a fair trial and due process of law”).

The Honorable Clint Penzo
State Senator
Opinion No. 2025-068
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single factor is ever conclusive.”29
Based on these characteristics, a county planning board member
position is best classified as a public “officer” for purposes of a due process analysis.30 Accordingly, members of a county planning board who serve for a fixed term and may be removed only “for cause” have a property interest in their positions and should be given reasonable notice and a fair opportunity to be heard via a hearing before removal. As discussed above, however, when the board or position is abolished, individual members are not being “removed.” In such circumstances, due process protections—notice and a hearing—are not required.31 But again, if the county judge and quorum court seek to dissolve or abolish the board as pretext for removing certain members and replacing them with others, such acts would likely constitute “removals” under A.C.A. § 14-17-203.32 In that event, affected members would be entitled to reasonable notice and an opportunity to be heard, including a fair proceeding. Question 6: If Act 519 does require the removal of some or all of the current members on county planning boards, which county official or officials are legally authorized to decide who and how many members will be removed to comply with the Act? The authority to remove a county planning board member depends on the method of removal. If, for reasons discussed further below, the member is a de facto officer, he or she can be removed by a court through a quo warranto action. Outside of such an action, the county judge may recommend removal for cause subject to the quorum court’s confirmation.33 Question 7: Once Act 519 takes effect, will county planning boards lose their lawful authority to act until they have satisfied this new residency ratio requirement? Even if a board loses its lawful authority because it fails to meet Act 519’s residency requirements, the acts of the board—through its members—could still be valid under the “de facto officer rule.”34 Under that rule, someone who discharges the duty of an office under the color of title (such as 29 Maddox v. State, 220 Ark. 762, 762–64, 249 S.W.2d 972, 972–73 (1952); see also Ark. Att’y Gen. Ops. 2023-100, 2023-082. 30 See Ark. Att’y Gen. Ops. 2002-328 (opining that based on the case law, “membership on a planning commission does constitute an office”), 2017-112 (opining that a county parks and recreation commission likely is a “civil office”); see also Carswell, 127 Ark. at 110, 191 S.W. at 936 (noting that a city council had the authority to remove a member of an improvement district board “only for cause, and after a hearing, and upon due notice”). 31 See, e.g., Satterfield v. Fewell, 202 Ark. 67, 149 S.W.2d 949, 951–52 (1941) (noting that with civil service positions, removal with notice and a hearing are not required if the position is abolished “in good faith”). 32 See, e.g., id., 280 Ark. at 179, 655 S.W.2d at 455–56. 33 A.C.A. § 14-17-203. 34 See, e.g., Bell v. State, 334 Ark. 285, 298–301, 973 S.W.2d 806, 813–15 (1998); Ark. Att’y Gen. Ops. 2008-012, 2006-186, 2002-018, 2001-018, 2001-015, 99-024, 97-257, 97-003, 96-054, 93-031, 90-144.

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State Senator
Opinion No. 2025-068
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being lawfully appointed as a board member) is considered a de facto officer, and public acts of a de facto officer are legally valid.35 A de facto officer “may continue to exercise the power and authority of the office until removed.”36 The authority of de facto officers can be challenged in a particular proceeding under quo warranto—the only way to remove a de facto officer.37 In addition to removing such a person from office, a court could order a de facto officer to reimburse the compensation or expenses received as a de facto officer.38 But these remedies are only available through a direct legal challenge, not through a collateral attack that does not directly concern the eligibility of the officer.39 Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve. Sincerely, TIM GRIFFIN Attorney General 35 See Ctr. Hill Sch. Dist. No. 32 v. Hunt, 194 Ark. 1145, 110 S.W.2d 523, 525 (1937); Faucette v. Gerlach, 132 Ark. 58, 200 S.W. 279, 279–80 (1918); Miller v. Callaway, 32 Ark. 666, 667 (1878); De facto officer defined, 3 McQuillin Mun. Corp. § 12:157 (3d ed. 2025); Ark. Att’y Gen. Ops. 99-024, 96-054, 93-031, 90-144. 36 Ark. Att’y Gen. Op. 2008-012; see also Chronister v. State, 55 Ark. App. 93, 96, 931 S.W.2d 444, 445 (1996) (holding that a prosecution by a city attorney acting as a de facto officer was valid). 37 See Keith v. State, 49 Ark. 439, 5 S.W. 880, 881 (1887); Kaufman & Co. v. Stone, 25 Ark. 336, 337–38 (1869). 38 See Sitton v. Burnett, 216 Ark. 574, 577–78, 226 S.W.2d 544, 545–46 (1950); Ark. Att’y Gen. Ops. 96-265, 89-251. 39 See Appleby v. Belden Corp., 22 Ark. App. 243, 247–48, 738 S.W.2d 807, 809 (1987) (holding that official acts of a Workers’ Compensation Commissioner “were legally valid and effectual” as a de facto officer “notwithstanding the supreme court’s determination that he was not qualified to serve”); Ark. Att’y Gen. Ops. 2001-018, 90-144.