How does an Arkansas second-class city fill a council vacancy, and what are the rules on quorums and city funds?

Plain-English summary

State Representative Kim Hammer put a batch of questions to the Attorney General about how a city of the second class runs its government, from filling council vacancies to handling money. Attorney General Dustin McDaniel answered them one by one, working from the principle that Arkansas cities are creatures of the legislature and hold only the powers granted by statute or the constitution.

On vacancies, he concluded a city cannot rewrite the state rules: filling a council vacancy requires a majority of the "remaining" members and also a majority of a quorum of the whole council. On meetings, no statute requires a quorum just to convene, but a council can only act (pass an ordinance, resolution, or order) by a majority vote of the whole number of members. Votes and other acts of a "de facto" officer (someone appointed by a defective vote) still count, so an improperly seated member does not void the meetings he sat in on. On money, whether department funds can be combined depends on the specific fund; Act 833 fire funds need not be kept in a separate account but must be separately accounted for; the council must receive a monthly financial report and a monthly bank reconciliation; and paper payroll checks must be signed by at least two of the city's authorized disbursing officers. On whether one person can hold two paid city jobs, the AG said that turns on facts he could not find, and he enclosed an earlier opinion (No. 2009-004) explaining the conflict-of-interest law.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could an Arkansas second-class city pass an ordinance changing how it fills a council vacancy?
A: No. The AG explained that cities cannot pass ordinances that contradict state law (Ark. Const. art. 12, § 4), and no statute lets a city alter the requirements of A.C.A. § 14-42-103. So the vacancy-filling rules in that statute cannot be changed locally.

Q: What vote does it take to fill a vacant alderman seat?
A: Two statutes apply together. A.C.A. § 14-44-104 says the council elects a replacement "by a majority vote of the council," and A.C.A. § 14-42-103(a) requires a majority of the remaining members plus a majority of a quorum of the whole council. The AG's example: on a six-member council the quorum is four, and a majority of that is three.

Q: If a meeting is held without a quorum, are all its actions void?
A: The AG separated two issues. No state statute requires a quorum just to convene a meeting. But a council can only take action, such as passing a bylaw, ordinance, resolution, or order, by a majority vote of the whole number of members elected to the council (A.C.A. § 14-55-203(b)).

Q: A council member turned out to be improperly appointed. Are the votes he took part in invalid?
A: No, on the facts assumed. The AG explained that someone appointed by a definite but defective vote is a "de facto" officer, and the acts of de facto officers, including forming a quorum and casting votes, are as valid as those of an officer by right, a rule courts adopted to protect the public and third parties who rely on official acts.

Q: Do Act 833 fire funds have to be kept in their own separate account?
A: No. The AG reviewed A.C.A. §§ 14-284-401 et seq. and found cities are not required to keep Act 833 funds in a separate account, but the General Assembly limits their uses and requires cities to separately account for them, so he advised consulting local counsel on the most prudent method.

Q: Who has to sign a city's payroll checks?
A: Under A.C.A. § 14-59-105 (subsection (b)(5)), paper checks must be signed by at least two of the city's "authorized disbursing officers."

Background and statutory framework

The through-line of the opinion is that Arkansas municipalities have only the authority the legislature or constitution gives them. The AG cited Ark. Const. art. 12, § 4 and cases including Jones v. American Home Life Ins. Co., 293 Ark. 330, 738 S.W.2d 387 (1987), City of Fort Smith v. Housing Authority of the City of Fort Smith, 256 Ark. 254, 506 S.W.2d 534 (1974), and Nahlen v. Woods, 255 Ark. 974, 504 S.W.2d 749 (1974), for the point that Arkansas is a "legislative home-rule" state whose cities cannot enact ordinances contrary to general state law.

The de facto officer discussion drew on general public-officer treatises and Arkansas cases such as Landthrip v. City of Beebe, 268 Ark. 45, 593 S.W.2d 458 (1980). For the conflict-of-interest question the AG did not decide, he enclosed Opinion No. 2009-004, which walks through the common-law incompatibility doctrine (Byrd v. State, 240 Ark. 743, 402 S.W.2d 121 (1966); Thompson v. Roberts, 333 Ark. 544, 970 S.W.2d 239 (1998)) and statutes such as A.C.A. § 14-42-107(b)(1) and § 21-8-304(b) that can bar a public official from holding a second paid position, all of which he stressed are heavily fact-dependent.

Citations and references

Statutes:

• A.C.A. § 14-42-103; § 14-42-103(a) (filling municipal vacancies)
• A.C.A. § 14-44-104 (alderman vacancies in second-class cities)
• Ark. Const. art. 12, § 4 (municipalities are creatures of the legislature)
• A.C.A. § 14-55-203(b) (Supp. 2013) (majority of the whole council to pass measures)
• A.C.A. § 14-237-104 (Supp. 2013) (municipal water and sewer department funds)
• A.C.A. §§ 14-284-401 et seq. (Act 833 fire funds accounting)
• A.C.A. § 14-59-108(a)(1) (Supp. 2013) (monthly bank reconciliation report)
• A.C.A. § 14-59-105 (Supp. 2011) (payroll checks; two authorized disbursing officers)
• A.C.A. § 14-42-107(b)(1) (Supp. 2007) (official's interest in city contracts)
• A.C.A. § 21-8-304(b) (Supp. 2007) (confidential-information conflict)

Cases:

• Jones v. American Home Life Ins. Co., 293 Ark. 330, 738 S.W.2d 387 (1987)
• City of Fort Smith v. Housing Authority of the City of Fort Smith, 256 Ark. 254, 506 S.W.2d 534 (1974)
• Nahlen v. Woods, 255 Ark. 974, 504 S.W.2d 749 (1974), Arkansas is a legislative home-rule state
• Byrd v. State, 240 Ark. 743, 402 S.W.2d 121 (1966), common-law incompatibility of offices
• Thompson v. Roberts, 333 Ark. 544, 970 S.W.2d 239 (1998), one office subordinate to another
• Landthrip v. City of Beebe, 268 Ark. 45, 593 S.W.2d 458 (1980), de facto officer doctrine

Source

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

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
DusTIN McDANIEL
Opinion No. 2013-083
October 22, 2013
The Honorable Kim Hammer
State Representative
1411 Edgehill
Benton, Arkansas 72015-3128
Dear Representative Hammer:
You have requested my opinion on several distinct areas of law. Specifically, you
ask ten questions about city government, which I have paraphrased and reordered
as follows:

1. Does Arkansas law allow a city of the second class to alter A.C.A.
   § 14-42-103 's requirements for how vacancies are filled?
2. What are the voting requirements when a city council of a city of the
   second class is attempting to fill a vacant alderman position pursuant
   toA.C.A. § 14-44-1047
3. If a city council meeting is convened without the minimum required
   for a legal quorum, would it void all actions taken at the meeting?
4. (a) If a person was appointed to the city council illegally and that
   person's presence was required to make a quorum at [certain public]
   meetings, were those meetings illegal? (b) If any of those meetings
   had a quorum without the illegally appointed individual, would any
   votes made by that individual be null and void?
5. Can an individual hold more than one paid city position or job, i.e.,
   be a police officer and hold a position with the sanitation department
   simultaneously?
   323 CENTER STREET, Srnrn 200 •LITTLE RocK, ARKANSAS 72201
   TELEPHONE (501) 682-2007 •FAX (501) 682-8084
   INTERNET WEBSITE• http://www.ag.state.ar.us/ The Honorable Kim Hammer
   State Representative
   Opinion No. 2013-083
   Page 2
6. Is it legal to combine individual city department funds into a single
   account?
7. Are the fire department reserve funds established by [Act 833 of
   1991] required to be kept in a separate account?[! 1
8. Does Arkansas law mandate that the city council receive a monthly
   report on the reconciliation of the city's bank accounts?
9. Under Arkansas law, are cities of the second class required to have
   payroll checks signed by a city official or employee at city hall?
   RESPONSE
   In my opinion the answer to Questions 1, 4, and 7 is "no"; and the answer to
   Question 8 is "yes." The answer to Question 2 is that the city council must appoint
   someone to the vacancy by a majority of the "remaining members" on the council,
   but the vote still must be a majority of the whole number of the council. Regarding
   Question 3, there is no requirement in state law for a quorum to be present to
   convene a meeting. Rather, state law requires a majority of a quorum in order to
   take any action. I have enclosed an Opinion that addresses your fifth question. The
   answer to Question 6 depends on the nature of the fund. The answer to Question 9
   is that written checks must be signed by at least two persons who are the city's
   "authorized disbursing officers."
   DISCUSSION
   Question 1: Does Arkansas law allow a city of the second class to alter A. C.A.
   § 14-42-103's requirements/or how vacancies arefUled?
   No. Cities cannot pass ordinances that contradict state law.2 No statute permits
   cities to alter the requirements of section 14-42-103. Therefore, section 14-42-
   103 's requirements cannot be altered by local ordinance.
   1 As originally worded, your question inquired about "fire department reserve funds established
   by 813 funding." I am not sure what you mean by "813 funding." So I will assume you meant
   "833 funding" in reference to the fire department funding mechanism authorized by Act 833 of
10. The Honorable Kim Hammer
    State Representative
    Opinion No. 2013-083
    Page 3
    Question 2: What are the voting requirements when a city council of a city of
    the second class is attempting to fill a vacant alderman position pursuant to
    A. C.A. § 14-44-104?
    This question is governed by two statutes: A.C.A. §§ 14-44-104 and 14-42-103(a).
    Section 14-44-104, which is the more general of the two laws, addresses how
    alderman vacancies are filled in cities of the second class:
    (a) Whenever a vacancy occurs in the office of alderman in any city
    of the second class, at the first regular meeting after the occurrence
    of the vacancy, the city council shall proceed to elect, by a majority
    vote of the council, an alderman to serve for the unexpired term.
    (b) The election to fill the vacancy under subsection (a) of this
    section is not subject to veto by the mayor.
    Section 14-42-103 sets the requirements that apply to all cities, whatever their
    class:
    (a )(1) Vacancies in municipal offices that are authorized by state law
    to be filled by appointment by the city or town governing body
    require a majority vote of the remaining members of the governing
    body.
    (2) However, a majority of a quorum of the whole number of the
    governing body is required to fill the vacancy.
    Under section -103, a majority of the "remaining" members of the city council
    (and a majority of a quorum of the whole number of the city council) is required in
    2 Ark. Const., art. 12, § 4. Municipalities are creatures of the legislature and, as such, have only
    the power bestowed upon them by statute or the Arkansas Constitution. Jones v. American Home
    Life Ins. Co., 293 Ark. 330, 738 S.W.2d 387 (1987). Despite the adoption of the "Home Rule" Act
    in 1971 (Act 266 of 1971 ), cities are prohibited from enacting any ordinances that are "contrary
    to the general laws of the state." City of Fort Smith v. Housing Authority of the City of Fort Smith,
    256 Ark. 254, 506 S.W.2d 534 (1974); Nahlen v. Woods, 255 Ark. 974, 504 S.W.2d 749 (1974)
    (holding that Arkansas is a legislative home-rule state and that the legislature has plenary power
    over municipalities). The Honorable Kim Hammer
    State Representative
    Opinion No. 2013-083
    Page 4
    order to fill a vacancy on the council. For example, a quorum of a six-member
    council would be four. A majority of that number, in tum, would be three. 3
    Question 3: If a city council meeting is convened without the minimum required
    for a legal quorum, would it void all actions taken at the meeting?
    Your question mingles two distinct issues: (1) whether state law requires a quorum
    to be present in order to convene a meeting; and (2) whether state law requires a
    quorum to be present in order to take action. For purposes of this question, a
    "quorum" can be defined as a majority of the whole number of members elected to
    a city council.4 Regarding the first issue, no state statute requires a quorum to be
    present in order to convene a valid city council meeting. Regarding the second
    issue, a city council can only take action-e.g., pass a bylaw, ordinance,
    resolution, or order-by a majority vote of the whole number of members elected
    to the council.
    Question 4: (a) If a person was appointed to the city council illegally and that
    person's presence was required to make a quorum at [certain public/ meetings,
    were those meetings illegal? (b) If any of those meetings had a quorum without
    the illegally appointed individual, would any votes made by that individual be
    null and void?
    Every person who purports to hold a public office can be divided into one of three
    categories: a de jure official, a de facto official, or a usurper.5 A de jure officer is
    one who is fully eligible to serve and was properly appointed or elected. A de facto
    officer is one who is either not personally eligible to serve or whose appointment
    or election was defective in some way. A standard example of a de facto officer is
    one who, though appointed by a definite vote of the appropriate body, did not
    receive the total number of votes required to be validly appointed. 6 A usurper, in
    3 See generally Op. Att'y Gen. Nos. 2003-380, 97-265.
    4 See, e.g., A.C.A. § 14-55-203(b) (Supp. 2013) ("To pass any bylaw, ordinance, resolution, or
    order, a concurrence of a majority of a whole number of members elected to the council shall be
    required.").
    5 63C Am. Jur. 2d Public Officers and Employees§ 24 (2013)
    6 63C Am. Jur. 2d Public Officers and Employees § 28 (2013) ("Although color of authority or
    right may be acquired in various ways, the term generally refers to the authority derived from a The Honorable Kim Hammer
    State Representative
    Opinion No. 2013-083
    Page 5
    contrast, is someone who intrudes into an office, takes possession of it, and
    undertakes official actions despite having no authority, either actual or apparent. In
    summary, a de jure officer has actual title to the office; a de facto officer has color
    of title; and a usurper has no title at all, whether actual or colorable.
    The acts of de facto officials-including their participation in public meetings, the
    efficacy of their votes, their ability to contribute to the formation of a quorum,
    etc.- are as valid and effectual as if they were an officer by right. Thus, the same
    legal consequences will flow from them for the protection of the public and third
    parties.7 This rule's rationale, which is based on public policy and comparative
    necessity, was engrafted into the law to protect the interests of the public and
    individuals affected by the acts of de facto officials. 8
    I assume that when you say the person was "appointed illegally," you mean that
    the person was appointed by a definite vote of the city council, but the council's
    vote was defective in some way. Given this assumption, the person would be a de
    facto officer whose votes are valid. Thus, the answer to both parts of your question
    is "no."
    Question 5: Can an individual hold more than one paid city position or job, i.e.,
    be a police officer and hold a position with the sanitation department
    simultaneously?
    I do not have enough facts to definitively say whether this scenario qualifies as a
    conflict of interest that would disqualify the person from holding both positions.
    To conclusively respond to your question, an appropriate fact finder would have to
    assess the applicable facts and apply the law to those facts. While I am not
    definite election or appointment, however irregular or informal."); see also 63C Am. Jur. 2d
    Public Officers and Employees § 32 (2013) ("When an official. .. body has apparent authority to
    appoint an individual to a public office, and apparently exercises such authority, and the person so
    appointed enters such office and performs its duties, he or she will be an officer de facto,
    notwithstanding that there was want of power to appoint in the body ... [that] professed to do so,
    or that the power was exercised in an irregular manner.").
    7 Id. at 95, 931 S.W.2d at 445 (citing Faucette, Mayor v. Gerlach, 132 Ark. 58, 200 S.W. 279
    (1918)).
    8 E.g., Landthrip v. City of Beebe, 268 Ark. 45, 50-51, 593 S.W.2d 458, 461 (1980). The Honorable Kim Hammer
    State Representative
    Opinion No. 2013-083
    Page 6
    equipped or authorized to find those facts, I have enclosed Opinion No. 2009-004,
    which explains the relevant law.
    Question 6: Is it legal to combine individual city department funds into a single
    account?
    The answer to this question depends on the nature of the specific fund(s) in
    question. Some statutes require certain department funds to be maintained in their
    own, distinct accounts. For example, Arkansas law requires "municipal water and
    sewer departments" to "maintain all funds in" accounts that are both "approved for
    that purpose by law" and "maintained in the name of the municipal water and
    sewer department. "9 I will refrain from speculating on what fund( s) you might
    have in mind.
    Question 7: Are the fire department reserve funds established by 833 funding
    required to be kept in a separate account?
    The accounting requirements for Act 833 funds are reflected in A.C.A. §§ 14-284-
    401 et seq. Based on my review of these statues, cities are not required to maintain
    Act 833 funds in a separate account. But the General Assembly limits the uses of
    these funds and requires cities to separately account for them. Thus, cities should
    consult with their local attorneys regarding the most prudent manner of
    maintaining and accounting for Act 833 funds.
    Question 8: Does Arkansas law mandate that the city council receive a monthly
    report on the reconciliation of the city's bank accounts?
    The Code requires every "municipal treasurer of this state or the designated
    representative that has been approved by the governing body [to] submit a
    monthly financial report to the council or board of directors."10 (Emphasis added.)
    One such "financial report" appears to be one reflecting the kind of reconciliation
    noted in your question: "On a monthly basis, all municipalities shall reconcile
    9 A.C.A § 14-237-104 (Supp. 2013).
    10 A.C.A. § 14-59-1 lS(a) (Supp. 2013) (emphasis added). The Honorable Kim Hammer
    State Representative
    Opinion No. 2013-083
    Page 7
    their cash receipts and disbursements journals to the amount on deposit m
    banks."11
    Question 9: Under Arkansas law, are cities of the second class required to have
    payroll checks signed by a city official or employee at city hall?
    Because you refer to actually "signing" a payroll check, I assume that you are
    asking whether paper checks must be signed by certain persons. Given that
    assumption, A.C.A. § 14-59-105 (Supp. 2011) controls your question. Subsection
    -105(b)(5) requires that the paper checks be signed by, at least, two of the city's
    "authorized disbursing officers."
    Assistant Attorney General Ryan Owsley prepared this opinion, which I hereby
    approve.
    Sincerely,
    7
    Attorney General
    DM:RO/cyh
    11 A.C.A. § 14-59-108(a)(l) (Supp. 2013) (emphasis added). Opinion No. 2009-004
    February 13, 2009
    STATE OF ARKANSAS
    THE ATTORNEY GENERAL
    DusnN McDANIEL
    The Honorable Bill Abernathy
    State Representative
    1309 Texas Street
    Mena, AR 71953-7818
    Dear Representative Abernathy:
    I am writing in response to your request for an opinion concerning a proposed
    salary arrangement between the Montgomery County Regional Public Water
    Authority and Mt. Ida's mayor. Given that the water authority cannot compensate
    the mayor for serving as a board member,1 you ask: "Would it be permissible for
    [the] Regional Water Association to employ the ... [mayor] as the manager of the
    association and compensate her in that capacity and not compensate her as a board
    member?"
    RESPONSE
    I cannot conclusively answer this question because I lack sufficient facts to
    determine whether a conflict exists (or could arise) in the situation you posit. To
    conclusively respond to your question, an appropriate fact finder would have to
    find the applicable facts, and apply the law to those facts. · While I am not
    equipped or authorized to find those facts, I can explain some of the relevant law.
    As explained more fully below, a conflict likely exists between dual service as the
    water authority's board member and manager, in my opinion. But it is less clear
    whether the sitting mayor is prohibited from simultaneously serving as the paid
    1 For more explanation of this point, please see Opinion No. 2008-185.
    323 CENTER STREET, SrnTE 200. LrITLE ROCK, ARKANSAS 72201
    TELEPHONE (501) 682-2007 •FAX (501) 682-8084
    INTERNET WEBSITE • http://www.ag.state.ar.us/ The Honorable Bill Abernathy
    State Representative
    Opinion. No. 2009-004
    Page 2
    manager of a public water authority that sells water to the same city the mayor
    serves.2
    Your question seems to indicate that the mayor would serve simultaneously in
    three positions: mayor, paid manager, and board member. If that is the situation
    you are describing, I believe a conflict probably exists under the common-law
    incompatibility doctrine between the dual positions of manager and board
    member. Under the common law, no person may hold two or more
    "incompatible" offices. E.g., Byrdv. State, 240 Ark. 743, 402 S.W.2d 121 (1966).
    Two positions are "incompatible" if "there is a conflict of interest" between the
    two positions. Id. at 745. One such conflict exists when one of the positions is
    subordinate to the other. Thompson v. Roberts, 333 Ark. 544, 970 S.W.2d 239
    (1998). While you have not given a job description of the "manager," I presume
    the position of "manager" is subordinate to the position of board member.3
    Accordingly, while I lack the full facts or the manager's job description, holding
    both the manager and director positions simultaneously probably violates the
    common-law incompatibility doctrine, in my opinion.
    If, however, you are asking about a situation in which the mayor would resign as a
    board member4 to serve simultaneously as only the mayor and water authority
    manager, the conflict analysis is somewhat different. Conflicts of interest that
    would preclude dual service can arise under the constitution, statutes, or the
    common-law doctrine of incompatibility. E.g., Op. Att'y Gen. 2008-143. I have
    not located any constitutional prohibitions on the same person simultaneously
    servmg as mayor and as either a paid manager or director of a public water
    authority.
    2 You have not indicated whether the Montgomery County Regional Public Water Authority sells
    water directly to Mt. Ida. For purposes of this opinion, however, I assume that is the case.
    3 The common-law incompatibility test only applies to two or more public positions. Here, the
    water authority is a public entity and is therefore subject to the common-law incompatibility test.
    A.C.A. § 4-35-203(a)(l) (Supp. 2007) ("[T]he water authority ... shall constitute a public body
    politic and governmental entity of the State of Arkansas .... ").
    4 The by-laws would presumably have to be altered, which may require the approval of the
    Arkansas Natural Resources Commission. A.C.A. § 4-35-208(c)(2) (Supp. 2007). The Honorable Bill Abernathy
    State Representative
    Opinion. No. 2009-004
    Page3
    In contrast, some statutes may prohibit the situation you posit. I cannot, however,
    definitively conclude that any of these statutes prohibit the mayor from
    simultaneously serving as a paid manager because conflicts of interest are heavily
    fact dependant and must be analyzed on a case-by-case basis. Op. Att'y Gen. 95-
11. I lack sufficient facts or even a job description for the manager. With that
    cautionary note in mind, there are at least three statutes that may prohibit the
    situation you describe. First, A.C.A. § 14-42-107(b)(l) (Supp. 2007) may apply:
    (b)(l) No alderman, council member, official, or municipal
    employee shall be interested, directly or indirectly, in the profits of
    any contract for furnishing supplies, equipment, or services to the
    municipality unless the governing body of the city has enacted an
    ordinance specifically permitting aldermen, . council members,
    officials, or municipal employees to conduct business with the city
    and prescribing the extent of this authority.
    Because the mayor is an "official" of a municipal corporation, whether this statute
    prohibits the mayor's service on the water authority as a paid manager depends on
    two elements. First, the service would have to render the mayor "interested,
    directly or indirectly, in the profits of any contract." Second, assuming the first
    element is· met, the dual service is prohibited unless the city has enacted the
    permitting ordinance described in the statute.
    If the mayor simultaneously serves in a paid position on the water authority, a fact
    finder would probably hold that the first element is met, in my opinion. If the
    mayor is drawing a salary from the water authority, that salary is presumably paid
    from moneys generated by the water authority's contracts with municipalities. If
    one of those municipal contracts is with the City of Mt. Ida, the mayor is at least
    indirectly "interested" "in the profits of' the contract with the city. If these
    assumptions are correct, then the first element of the conflict is likely met, in my
    opinion. If the first element is met, the statute precludes the arrangement you posit
    unless element two is met: the city enacts a permitting ordinance. You have not
    indicated whether such an ordinance has been enacted. Therefore, I cannot
    conclusively determine whether A.C.A. § 14-42-107 prohibits the situation you
    posit.
    Another statute that may prohibit the mayor from simultaneously being a paid
    manager for the water authority is A.C.A. § 21-8-304(b) (Supp. 2007). This The Honorable Bill Abernathy
    State Representative
    Opinion. No. 2009-004
    Page4
    subsection states:
    (b) No public official or state employee shall accept employment or
    engage in any public or professional activity while serving as a
    public official which he or she might reasonably expect would
    require or induce him or her to disclose any information acquired by
    him or her by reason of his or her official position which is declared
    by law or regulation to be confidential.
    This statute prohibits public officials (which includes the mayor)5 from
    "accept[ing] employment ... while serving as a public official" which the official
    "might reasonably expect would require or induce" the official to disclose
    confidential information. This statute is replete with fact-based phrases: ''might
    reasonably expect"; "induce"; and "confidential information." If the facts
    surrounding simultaneously serving as the mayor and paid manager violate this
    statute, the mayor cannot accept the employment (i.e., a paid position). Because
    the situation you posit entails employment (as the manager is paid), your question
    implicates this statute. Thus, whether this statute prohibits the mayor from
    accepting the paid position as manager depends on facts that I am not equipped or
    authorized to find. Therefore, I cannot conclusively determine whether this statute
    prohibits the arrangement you posit.
    Finally, some local ordinances may raise various obstacles relevant to your
    question. For example, some local ordinances might prohibit outside employment
    while serving as mayor. Local ordinances would need to be consulted to complete
    the analysis of whether any legislative action prohibits the situation you posit.
    The third category of conflict that might prohibit this simultaneous service is the
    common-law doctrine of incompatibility, which was briefly explained above. As
    explained, the touchstone when analyzing a common-law incompatibility issue is
    whether one position is subordinate to the other. While I have not been provided
    with the job description of the manager, given that the manager is employed by an
    entirely separate public corporation than the mayor, neither position appears
    subordinate to the other. Thus, in my opinion, the common-law doctrine of
    incompatibility in all likelihood would not prohibit the mayor's simultaneous
    service as manager of the water authority.
    5 See Op. Att'y Gen. 2007-290. The Honorable Bill Abernathy
    State Representative
    Opinion. No. 2009-004
    Page 5
    Assistant Attorney General Ryan Owsley prepared the foregoing opinion, which I
    hereby approve.
    Sincerely,
    Attorney General
    DM:RO/cyh