In Arkansas, can a quorum court member also sit on the board of a nonprofit that gives grants to a county-owned animal shelter?
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This page answers the general question as of 2014. Ezel answers yours: what it means for your facts, under current Arkansas law, with citations.
Plain-English summary
Senator Uvalde Lindsey asked the AG whether it created a conflict of interest for members of the quorum court (the county's legislative body) to also sit on the board of a locally created nonprofit that solicits funds and awards grants to a county-owned animal shelter. He followed up with two contingent questions: if there is a conflict, can the members abstain or participate in discussions, and can the nonprofit board condition any grant on the board's having operational control or oversight of the shelter.
AG Dustin McDaniel found no conflict. He identified two sources from which a dual-service conflict could arise: an express constitutional or statutory prohibition, and the common-law doctrine of incompatibility. He found no constitutional or statutory provision blocking the arrangement and noted that prior AG opinions limit the common-law incompatibility doctrine to two public positions. Because the nonprofit board seat is private, not public, the doctrine does not apply. The "no" answer to the first question made the second question moot.
On the third question (whether the nonprofit could condition grants on oversight rights over the shelter), the AG flagged a basic misunderstanding about county governance. In Arkansas counties, the county judge, not the quorum court, has authority over the "administration, care, and keeping of [] county property" under A.C.A. § 14-14-1102(b)(3), including the right to assign or decline to assign use of that property. Any deal that turned over operational control of the shelter to a donor would be negotiated and accepted by the county judge, not the quorum court members.
Currency note
This opinion was issued in 2014. 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: In Arkansas, when does serving on two boards create a "conflict of interest" that prevents one person from holding both positions?
A: According to the opinion, only when an express constitutional or statutory provision says so, or when the common-law doctrine of incompatibility applies. That doctrine applies only when both positions are public offices. Two examples of incompatibility under prior AG opinions: simultaneously serving in two offices where one supervises the other, or in two offices with conflicting fiduciary duties to different governmental bodies.
Q: What is the common-law doctrine of incompatibility?
A: A judge-made rule that says certain pairs of public offices cannot be held by the same person because the duties of one office would conflict with the duties of the other. The leading Arkansas case is Thompson v. Roberts, 333 Ark. 544 (1998). The doctrine has been limited to situations where both positions are public.
Q: Did the AG say the dual service was a great idea?
A: No. He simply said no law prohibits it. A quorum court member is free to recuse from any vote where the appearance of conflict matters, but Arkansas law does not require recusal in this kind of public-private overlap.
Q: Who actually has authority over a county-owned animal shelter?
A: The county judge. A.C.A. § 14-14-1102(b)(3) gives the county judge authority over "the administration, care, and keeping of [] county property" and the right to "assign or not assign the use of such property." The quorum court funds and legislates, but operational decisions about county property fall to the county judge.
Q: Could the nonprofit demand that its board oversee the shelter as a condition of any grant?
A: As a matter of contract, a private donor can attach any condition it likes to its money. Whether the county should accept that condition is up to the county judge, not the quorum court. The AG said the question as posed assumed the wrong county officer would be deciding.
Q: Does the answer change if a quorum court member became the nonprofit's main donor?
A: The opinion did not address that. The AG limited his answer to the formal dual-service question. Personal financial stakes in a transaction the quorum court is voting on would raise a separate ethics question, possibly under conflict-of-interest statutes or local rules.
Background and statutory framework
Arkansas county government is structured around a county judge as chief executive and a quorum court as the legislative body. A.C.A. § 14-14-1102(b)(3) gives the county judge the "general control of the county affairs" and specifically the "right to assign or not assign the use of [county] property." This division of authority is central to the opinion: even if the quorum court members were tempted to use their nonprofit-board roles to leverage the county, the actual decision about county property belongs to the county judge, not to them.
On dual office holding, Arkansas law recognizes three potential sources of restriction. First, the state constitution sometimes prohibits specific pairings (for example, members of the General Assembly cannot simultaneously hold most other state offices). Second, the Arkansas Code sometimes prohibits specific pairings (e.g., a member of a county board of equalization cannot also be a county elected official). Third, the common law doctrine of incompatibility may bar a dual office holder where the duties of one office conflict with the duties of the other. The leading Arkansas decision is Thompson v. Roberts, 333 Ark. 544 (1998).
A consistent thread in prior AG opinions, including the one cited in 2013-125, is that the incompatibility doctrine reaches only two public offices. A public official's voluntary service on a private nonprofit's board does not trigger the doctrine because the second position is not a public office at all. This does not mean the dual service is risk-free in every instance: where a quorum court member would vote to send county money to a nonprofit on whose board the member sits, separate ethics rules and disclosure obligations might apply. The opinion did not address those rules; the senator's question was specifically framed as one of conflict of interest preventing dual service.
A.C.A. § 25-16-701 caps the AG's authority by prohibiting the Attorney General from engaging in the private practice of law. The AG invoked this provision to decline to opine on whether a private nonprofit could lawfully make a particular contractual offer.
Source
Original opinion text
STATE OF ARKANSAS
THE ATTORNEY GENERAL
DUSTIN McDANIEL
Opinion No. 2013-125
January 13, 2014
The Honorable Uvalde Lindsey
State Senator
2257 Gentle Oaks Lane
Fayetteville, Arkansas 72703
Dear Senator Lindsey:
You have asked for my opinion on the following three questions:
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Is it a conflict of interest for quorum court members to sit on the board of a locally created nonprofit [that] awards or declines to award grants to a county-owned animal shelter? (This nonprofit was mainly created to solicit funds and award grants to the shelter.)
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[If the answer to Question 1 is "yes," m]ay the quorum court members simply abstain from voting when matters come up that affect the animal shelter? If the quorum court members cannot vote, may they still be allowed to participate in discussions regarding budgetary or other items affecting the animal shelter?
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May the board on which the quorum court members sit make a condition of any grant that board members or their designees have any sort of operational control or oversight regarding day-to-day operations of the shelter?
RESPONSE
The answer to your first question is "no," which renders your second question moot. I am not entirely sure what your third question is asking. Taken on its face, it asks me to opine on whether a private, nonprofit corporation can make such an offer. To answer such a request, I would have to engage in the private practice of law, which I am prohibited from doing. Taken in its wider context, however, perhaps the question seeks my opinion on whether it would be a conflict of interest for the quorum court to accept such an offer. In that case, the question is based on a flawed assumption. The county judge, not the quorum court, has the authority to negotiate and accept such offers.
DISCUSSION
Question 1: I assume you are asking whether it would be a conflict of interest for a quorum court member to simultaneously serve on the quorum court and hold his or her position on the board of this particular private nonprofit. Conflicts of interest that would preclude dual service can arise from either a constitutional or statutory prohibition or from the common law doctrine of incompatibility. I am unaware of any constitutional or statutory provision that prohibits the scenario you have described. Further, this office has previously opined that the common law doctrine of incompatibility only applies in the context of two public positions. Because the two positions at issue here are not both public, it appears that the common law doctrine does not apply. Therefore, in my opinion, there is no prohibition on holding these two positions simultaneously.
Question 2: My response to Question 1 renders this question moot.
Question 3: I am not entirely sure what this question is asking. Taken on its face, it asks me to assess the legality of a business offer from a private, nonprofit corporation. As I am prohibited from the private practice of law, I am unable to assess the legality the board's proposed actions.
Given that your other questions are in the context of conflicts-of-interest, perhaps you are asking whether it would be a conflict for such an offer to be accepted by the quorum court. If that is your question, then I must point out that it seems to mistake the respective power and authority of the quorum court and the county judge. The county judge, not the quorum court, has authority over "the administration, care, and keeping of [] county property," which includes the "right to assign or not assign the use of such property...." Given this authority, it is the county judge, not the quorum court, that would decide whether the private corporation could have some type of control or oversight over the shelter.
Assistant Attorney General Ryan Owsley prepared the foregoing opinion, which I hereby approve.
Sincerely,
DUSTIN McDANIEL
Attorney General
DM:RO/cyh
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