If a council member wants to be appointed mayor and her husband is also on the council, do they have to recuse from the council vote on a third party for the same vacancy? And does abstention reduce the number of yes votes needed for a majority?

Plain-English summary

A small Arkansas town (population under 500) was filling a mayoral vacancy. Two people wanted the appointment. One of the two was an active council member; her husband was also on the council. The husband had advocated for his wife's appointment in executive session, an action the Arkansas Ethics Commission later found violated A.C.A. § 21-8-304(a) and resulted in a Public Letter of Caution.

When the council came back from executive session, a different person was nominated as mayor. The motion was seconded. Two council members voted yes, one voted no, and the husband-wife pair abstained, citing a "conflict of interest." The town announced the nominee was the new mayor on the theory that two yes votes was a majority of those voting.

Senator Breanne Davis asked the AG three questions. AG Tim Griffin's answers:

Questions 1 and 2: Recusal of council-member-candidates and their spouses on third-party nominations.

No statute or constitutional provision automatically requires recusal in this scenario. But two overlapping rules might:

1. Common-law conflict of interest. Council members hold a public trust and shouldn't use their position to further personal interests in conflict with that trust. Where a vote requires the member to "act in the interest of one [thing] at the expense of the interest of the other," abstention is appropriate.

2. A.C.A. § 21-8-304(a). A council member cannot use her official position to secure "special privileges or exemptions" personally, for a spouse, or for someone with whom she has a substantial financial relationship. The Arkansas Ethics Commission, which enforces this statute, defines "special privileges or exemptions" as a "particular benefit or advantage unfairly extended to a person beyond the common advantages of others."

Whether voting on the third party (not on her own appointment) creates a conflict is a fact question. The Ethics Commission's reasoning in 2023-CO-012 / 2021-CO-015 / 2021-CO-025 found a violation when a council member voted on a measure that "directly impacted her ability to serve" in two roles. Voting on a third party may or may not constitute that direct impact.

The AG declined to make a categorical rule. The Ethics Commission has authority to review fact-specific scenarios under § 7-6-217(g) and is the appropriate body to consult.

Question 3: Whether abstention reduces the majority required.

No. When a statute requires a majority vote of the city council, the majority is calculated based on the total number of council members elected, not just members present and voting. So in a five-member council, three affirmative votes are required to fill a vacancy regardless of how many members abstain.

The town's announcement that the nominee was the new mayor on the basis of two yes votes was therefore wrong. Two abstaining members didn't reduce the requirement; the council needed three yes votes.

What this means for you

If you're a small-town council member with a relative on the same council

This is a delicate space. The AG's "fact-specific inquiry" framing is unsatisfying but accurate. Practical advice:

1. Recuse from votes that benefit you or your relative directly. That's the easy case under § 21-8-304(a).
2. Be cautious about votes that indirectly benefit you or your relative. Voting against a competitor for a position you also seek is the AG's hard case.
3. Don't advocate for yourself in executive session. That's what got the husband in trouble in this fact pattern. Ethics Commission's Public Letter of Caution issued precisely because of that advocacy, not just because of the vote.
4. When in doubt, ask the Arkansas Ethics Commission. It can issue advisory opinions on specific fact patterns under § 7-6-217.

If you're a city attorney advising on a vacancy filling

Two checklist items:

1. Calculate majority correctly. Total elected members, not present-and-voting. A.C.A. § 14-45-103 (and the parallel statutes for cities of varying class) requires majority vote; that means majority of the whole, not majority of those voting.
2. Address recusal proactively. If a council member is also a candidate, advise abstention (out of caution) at minimum. Don't let the council fill the vacancy with a contested vote that may later be set aside.

If you're filing a complaint with the Arkansas Ethics Commission

The path is § 7-6-217. The Commission can issue Public Letters of Caution (lighter sanction), advisory opinions (clarifying for future cases), and final orders (with civil penalties for violators). Document the specific votes, the candidates' interests, and any direct benefits.

If you're a state legislator considering reform

Arkansas's vacancy-filling statutes (A.C.A. §§ 14-42-103, 14-43-411, 14-43-412, 14-45-103) were amended by Acts 519 and 995 of 2025 but didn't address recusal in this scenario. A future amendment could specify that any council member who is a candidate for the appointed position automatically abstains. Without that statutory clarity, council members and city attorneys are left with the common-law and ethics-statute analysis.

If you're a journalist covering small-town governance

The combination of relatives on the same council and contested mayoral appointments is more common in small towns than urban areas. This opinion gives you a framework: ask whether the conflicted council member voted on her own benefit (clear violation) or on a third party for the same position (fact-specific). The Ethics Commission decisions are public; case files give context.

Common questions

Q: Can a council member vote for her own appointment?
A: That's not what this opinion addresses, but it's almost certainly forbidden under § 21-8-304(a) and common law. The Ethics Commission's prior decisions in 2023-CO-012 / 2021-CO-015 / 2021-CO-025 found violations when council members voted on measures that affected their own roles.

Q: What about voting against a competitor for the same vacancy?
A: That's the closer question. The AG declined to issue a categorical rule. The Ethics Commission can review specific facts. Factors the Commission considers include whether the council member has a monetary interest, whether the vote is determinative, and whether the council member's vote effectively secures the appointment for herself.

Q: Does the spouse have to recuse too?
A: § 21-8-304(a) reaches votes that secure special privileges for a "spouse." If a council member's spouse is the candidate, voting against the third party tends to benefit the spouse. The Ethics Commission's prior decisions suggest this triggers § 21-8-304.

Q: What's the calculation for a "majority of the council"?
A: It's based on the total number of members elected to the council, not just those present or voting. So:

• 5-member council: 3 yes votes
• 6-member council: 4 yes votes (or 3 if there's a tiebreaker rule)
• 7-member council: 4 yes votes

Abstention or absence does not reduce the majority threshold.

Q: What happens if a vacancy can't be filled because the council can't get a majority?
A: Under A.C.A. § 14-45-103 (as amended by Act 995 of 2025), the council continues to try. If the council remains deadlocked, other procedural mechanisms (special election, gubernatorial appointment in some scenarios) may apply. Talk to your city attorney.

Q: Is the Ethics Commission's Public Letter of Caution a formal violation?
A: It's the lightest formal action the Commission takes, falling between an informal advisory opinion and a final order with penalties. It is a finding that the law was violated, but no fine is imposed. It's a public document and goes on the record of the official.

Background and statutory framework

Arkansas's framework for council-member ethics comes from three sources:

1. A.C.A. § 21-8-304(a) is the substantive prohibition: a public servant cannot use her official position to secure "special privileges or exemptions" for herself, her spouse, or a substantial financial relation.

2. Common-law conflict of interest has been recognized in a long line of AG opinions (2023-082, 2012-018, 2006-219, 2001-042, 1999-344, 1998-275, 1994-283). The core principle: don't act in a way that requires you to choose between competing duties or interests.

3. Arkansas Ethics Commission rules. 21 C.A.R. 2-101(16) defines "special privileges or exemptions" in operational terms.

The vacancy-filling statutes themselves don't address recusal. § 14-45-103 (small towns), § 14-42-103 (general municipal corporations), and §§ 14-43-411, 14-43-412 (cities of the first class) all give the council authority to fill vacancies but don't tell council members when to recuse.

The majority-of-the-whole rule (Op. 2002-132) is well-settled: when a statute requires a "majority" of the council, it means majority of the whole, not majority of those present or voting. This is consistent with the practice in Arkansas and most other states.

Citations and references

Statutes:
- A.C.A. § 21-8-304, special privileges or exemptions
- A.C.A. § 21-8-301, definitions
- A.C.A. §§ 14-42-103, 14-43-411, 14-43-412, 14-45-103, municipal vacancy filling (as amended by Act 519 and 995 of 2025)
- A.C.A. § 7-6-217: Arkansas Ethics Commission

Code of Arkansas Rules:
- 21 C.A.R. 2-101(16): special privileges or exemptions definition

Arkansas Ethics Commission decisions:
- 2023-CO-012, 2021-CO-015, 2021-CO-025 (consolidated; council member voting on dual-role ordinance)
- Final Order Nos. 2022-CO-085, 2017-CO-008, 2016-CO-026, 2015-CO-028 (financial-interest violations)
- Advisory Opinion No. 2004-EC-003 (April 16, 2004) (factors favoring recusal)

AG opinion line on common-law conflict of interest:
- Op. 2018-140
- Op. 2023-082
- Op. 2012-018
- Op. 2006-219
- Op. 2001-042
- Op. 1999-344
- Op. 1998-275
- Op. 1994-283

AG opinion on majority-of-whole:
- Op. 2002-132

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. 2025-076

December 4, 2025

The Honorable Breanne Davis
State Senator
Post Office Box 10088
Russellville, Arkansas 72812

Dear Senator Davis:

You have requested my opinion concerning A.C.A. § 21-8-304(a) and whether a city council member must recuse from voting in a particular situation.

You explain that a town's mayor resigned, creating a vacancy in that office. Under A.C.A. § 14-45-103, the town council chose to fill the vacancy by appointing a qualified elector. Two people expressed interest in the appointment. One was an active council member whose husband also served on the council. The acts of this council member and her husband form the primary factual foundation of your opinion request.

First, you report that during an executive session to discuss the appointment of a new mayor, the council member's husband, also a council member, attended and "advocated for the appointment of his wife (an action that was later found to have violated [A.C.A.] § 21-8-304(a) by the Arkansas Ethics Commission, who issued a Public Letter of Caution)" to the husband. Second, you report that after the council came out of executive session, a motion was made to nominate another individual as mayor, and that motion was seconded. Two members voted for that person; one person voted against; and both the husband and wife abstained from voting, citing their belief that voting would be an "impermissible conflict of interest."

The town announced the appointment of the new mayor because it believed that the two "for" votes constituted a sufficient majority for the appointment. But you report that legal counsel later advised the town that because the town "has a full five-member town council and no member was statutorily disqualified by virtue of voting on his or her own appointment," the appointed mayor "was required to receive a minimum of three (3) affirmative votes for a valid appointment."

Against this background, you ask the following questions:

1. Does the law require a council member, who has requested consideration for an appointment to fill a vacancy in a municipal office, to recuse himself or herself from participating and voting on a third party's nomination for appointment to that position?

2. Does the law require the spouse of a council member, who happens to serve on the same council and who has advocated for the consideration of and appointment of his or her spouse to fill a vacant office, to recuse himself or herself from participating in a vote on the nomination of a third party to fill that same position?

Brief response: To answer the first two questions together, while no statute or constitutional provision directly addresses the scenario you have described, a common law conflict of interest or A.C.A. § 21-8-304(a) may apply. But whether participating in a vote on the nomination of a third party would violate § 21-8-304 or other ethics law depends on specific facts. The Arkansas Ethics Commission has authority to review fact-specific scenarios, issue ethics opinions, and enforce A.C.A. § 21-8-304.

3. If the answer to either of the above questions is yes, would such recusals reduce the number of members required for determining a majority? For example, if the law requires two (2) members of a five (5) member body of the whole council to abstain from participating in a vote, would the law consider affirmative votes of two (2) of the remaining three (3) members to constitute a majority for purposes of filling a vacancy?

Brief response: No. A majority vote is based on the total number of members elected to the council, not just the members who are present and voting on the matter at issue. Therefore, three affirmative votes would still be required on a five-member council, even if two members abstain.

DISCUSSION

Question 1 and Question 2: Arkansas law does not expressly prohibit a council member from voting on a third party's appointment to a vacancy for which the council member is also a candidate. Nor does it expressly prohibit the council member's spouse from voting on the third party's appointment. But ethics laws and common law principles regarding conflicts of interest may apply.

First, as this Office has consistently concluded, a common law conflict of interest may arise when someone in a position of public trust, like a city council member, uses the position directly or indirectly to further his or her own interests in conflict with the public trust. Thus, council members should abstain from voting on matters that would require them to divide their allegiance, "that would require [them] to act in the interest of one [thing] at the expense of the interest of the other."

Second, under A.C.A. § 21-8-304(a), a city council member cannot "use or attempt to use his or her official position to secure special privileges or exemptions" personally, for a spouse, or for someone with whom the council member has a substantial financial relationship. Although undefined in the statute, the Arkansas Ethics Commission, authorized to enforce A.C.A. § 21-8-304, defines "special privileges or exemptions" to mean "[a] particular benefit or advantage unfairly extended to a person beyond the common advantages of others" or "[t]he unjustified release of a person from a duty or obligation required of others."

Factors the Arkansas Ethics Commission has considered in favor of recusal include the council member having a monetary interest in the outcome and having a determinative vote on the matter under consideration.

No Arkansas case law, Attorney General opinion, or Ethics Commission advisory opinion or order expressly addresses the scenario you have described. In the consolidated cases of 2023-CO-012, 2021-CO-015, and 2021-CO-025, the Arkansas Ethics Commission found that a council member violated A.C.A. § 21-8-304(a) when she voted on an ordinance that would have rescinded a previous ordinance allowing dual service as a city council member and a city employee, because that vote "directly impacted her ability to serve" in both roles. Other Ethics Commission final orders finding that someone violated A.C.A. § 21-8-304 chiefly concern conflicts arising from financial interests or gain.

Whether voting on a third-party candidate constitutes a conflict of interest under the common law or A.C.A. § 21-8-304 is a factual question. But the mere fact that someone was a candidate for a position may not warrant recusal if the vote does not directly affect the outcome in that person's favor to the exclusion of others. As discussed above, additional facts that may indicate recusal is necessary include whether the person voting has a financial interest in the third party or is related to the third party.

Whether voting on the appointment of a third party to a vacancy, when the council member or council member's spouse has been a candidate for that appointment, presents a conflict in a given situation is fact-specific. When a factual question arises concerning a potential violation of § 21-8-304, the Arkansas Ethics Commission has the authority to review the facts and issue advisory opinions on that statute and other ethics law.

Question 3: When a statute requires a majority vote of all city council members, the majority vote is based on the total number of members elected to the council, not just the members who are present and voting on the matter at issue. Thus, in a five-member council, three affirmative votes are required to fill a vacancy, and that does not change even if two members abstain from voting.

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

Sincerely,

TIM GRIFFIN
Attorney General