Can an Arkansas A&P Commission member whose term has expired but who keeps serving still vote on appointments, including their own reappointment?

Plain-English summary

State Senator Jimmy Hickey, Jr. described a concrete situation in Texarkana. The city has a seven-member Advertising and Promotion ("A&P") commission. Two members' terms expired on March 21, 2014, but they continued serving while waiting to be either reappointed or replaced. The senator asked AG Dustin McDaniel whether those two holdover members could vote on filling the two open seats, including their own potential reappointment.

The AG split the question into two parts:

Voting to fill the other holdover's seat (or any vacancy): Yes. Under Arkansas common law, an officeholder whose term has expired and who has not been replaced continues as a "de facto officer." A de facto officer's actions, including votes on matters before the body, are valid and binding. A.C.A. § 26-75-605(d) provides that an A&P commission vacancy "[w]hether resulting from expiration of a regular term or otherwise, shall be filled by appointment made by the remaining members of the commission, with the approval of the governing body of the city." A prior AG opinion (Op. 99-024) read "remaining members" to include de facto holdover members for purposes of filling vacancies. The AG saw no reason to disagree.

Voting for one's own reappointment: No. The common law of conflict of interest holds that officers cannot place themselves in a position where personal interest conflicts with the duty owed to the public. A holdover member voting on his own reappointment has an obvious personal financial and reputational interest in the outcome. The member should recuse. The AG also flagged A.C.A. § 21-8-304(a), which prohibits a municipal public servant from using their position to secure special privileges or exemptions for themselves not generally available to others. The Arkansas Ethics Commission can issue advisory opinions on that statute.

So in practical terms: of the two holdover Texarkana commissioners, each can vote to reappoint the other, but each must recuse from the vote on their own reappointment.

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

What is a "de facto officer" in Arkansas law?
A de facto officer is someone who holds a public office under color of right (typically because they were lawfully appointed but their term has now expired without replacement) and who continues to perform the duties of the office. Arkansas courts and prior AG opinions (Op. 2013-028, 2010-168, 99-024) treat de facto officers' acts as valid and binding on the public, so that government can keep functioning while appointments lag.

Can an Arkansas A&P commissioner whose term expired keep voting?
At the time of this opinion, yes, with one exception. As a de facto officer, the holdover commissioner can vote on commission business, including votes to fill vacancies. The exception is a vote in which the commissioner has a personal conflict of interest, like a vote on their own reappointment.

Why must a member recuse from voting on their own reappointment?
Arkansas's common-law rule on conflicts of interest (adopted via A.C.A. § 1-2-119, which incorporates English common law to the extent not inconsistent with local law) prohibits officers from placing personal interest in conflict with public duty. A vote on one's own continued service is the paradigm case. The officer's personal interest in keeping the seat may cloud judgment about whether they are the best available candidate, which is the question the public-duty side of the equation requires them to focus on.

Can the holdover member vote to reappoint the other holdover member?
Yes, in the AG's view. The conflict-of-interest rule applies to one's own interests, not to a colleague's interests. So if two seats are open and both holdovers want to be reappointed, each can vote on the other's reappointment but must recuse from the vote on their own.

Who fills A&P commission vacancies in Arkansas cities of 5,000 or more?
Under A.C.A. § 26-75-605(d), the "remaining members of the commission" appoint replacements, with the approval of the city's governing body (typically the city council). Cities with fewer than 5,000 residents follow a different statutory scheme at A.C.A. §§ 26-75-701 to -705.

What if the holdover commissioner refuses to recuse and votes for themselves anyway?
The vote might still count under the de facto officer doctrine, since the doctrine validates acts of de facto officers to protect the public. But the act of voting could expose the commissioner to an Arkansas Ethics Commission complaint under A.C.A. § 21-8-304(a) for using their position to secure a special privilege. The Ethics Commission can issue advisory opinions on that statute under A.C.A. § 7-6-217(g)(2).

Background and statutory framework

Arkansas A&P commissions exist to administer hotel, restaurant, and tourism-related taxes that fund local advertising and promotion. The statutory framework splits along city size:

• A.C.A. §§ 26-75-601 to -619 (Repl. 2008, Supp. 2013) governs A&P commissions in cities of 5,000 or more residents. Texarkana falls in this group.
• A.C.A. §§ 26-75-701 to -705 (Repl. 2008) governs A&P commissions in cities of fewer than 5,000.

The specific vacancy-filling provision is A.C.A. § 26-75-605(d), which provides for appointment by the "remaining members" with city governing-body approval. The phrase "remaining members" was the key textual peg the AG read together with prior AG Op. 99-024.

The conflict-of-interest analysis rests on three layers:

1. Common-law conflict-of-interest rule. Codified into Arkansas law by A.C.A. § 1-2-119, which adopts English common law to the extent not inconsistent with state law. The general rule: officers must recuse when personal interest may conflict with public duty.
2. A.C.A. § 21-8-304(a) (Supp. 2013): municipal public servants may not use their position to secure special privileges or exemptions for themselves not generally available to others.
3. Ethics Commission advisory opinions under A.C.A. § 7-6-217(g)(2): the Arkansas Ethics Commission can issue advisory opinions on the ethics statutes, including § 21-8-304.

The AG drew on Op. 2013-028, 2010-168, 99-024 (de facto officer doctrine) and Op. 2012-018 (conflict-of-interest analysis for public officials) for prior synthesis.

Citations

• A.C.A. §§ 26-75-601 to -619 (Repl. 2008, Supp. 2013) (A&P commissions in cities of 5,000+)
• A.C.A. §§ 26-75-701 to -705 (Repl. 2008) (A&P commissions in cities under 5,000)
• A.C.A. § 26-75-605(d) (Repl. 2008) (vacancy filled by remaining members with city approval)
• A.C.A. § 1-2-119 (Repl. 2008) (Arkansas adopts English common law)
• A.C.A. § 21-8-304(a) (Supp. 2013) (no use of position for personal privilege)
• A.C.A. § 7-6-217(g)(2) (Repl. 2011) (Ethics Commission advisory opinions)
• Op. Att'y Gen. 2013-028 (de facto officer doctrine)
• Op. Att'y Gen. 2010-168 (de facto officer doctrine)
• Op. Att'y Gen. 99-024 (de facto member may act to fill vacancies)
• Op. Att'y Gen. 2012-018 (conflict-of-interest analysis)
• 67 C.J.S. Officers § 347 (general statement of conflict-of-interest rule)

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. 2014-050

June 24, 2014

The Honorable Jimmy Hickey, Jr.
State Senator

1600 Arkansas Blvd., Suite 106
Texarkana, Arkansas 71854

Dear Senator Hickey:

This is my opinion on your question about a municipal advertising and promotion
("A&P") commission. You provide these facts:

Texarkana currently has an Advertising and Promotion Commission in
place, which is served by seven members.¹ Two of these members have
terms that expired on March 21, 2014, and they have continued to serve
on the commission.

Your question is:

Are these two members, whose above mentioned terms have expired,
legally authorized to vote on the nomination of two new members or
possibly their own nomination for reappointment?

In my opinion, such a member may vote to appoint a new member to either
position and to reappoint the other member, but should not vote for his own
reappointment.

¹ Given Texarkana's population, I assume the A&P commission was formed under A.C.A. §§ 26-75-601 to
-619 (Repl. 2008, Supp. 2013), not under A.C.A. §§ 26-75-701 to -705 (Repl. 2008) (applying to certain
cities having fewer than 5,000 inhabitants).

323 CENTER STREET, SUITE 200 * LITTLE ROCK, ARKANSAS 72201
TELEPHONE (501) 682-2007 * FAX (501) 682-8084
INTERNET WEBSITE * http://www.ag.state.ar.us/

The Honorable Jimmy Hickey, Jr.
State Senator

Opinion No. 2014-050

Page 2

RESPONSE

A member whose term has expired and who has not resigned or been replaced may
continue to serve on an A&P commission as a de facto officer² whose actions,
generally including voting on any matter before the commission,³ are valid and
binding.

The law provides that a commission vacancy, "[w]hether resulting from expiration
of a regular term or otherwise, . . . shall be filled by appointment made by the
remaining members of the commission, with the approval of the governing body
of the city."⁴

While the meaning of "remaining" may be equivocal in context, a predecessor
opined that de facto members may act to fill vacancies.⁵ I see no persuasive reason
to disagree. In my opinion, then, a de facto member generally may vote on a
commission appointment or reappointment.

But a de facto member should not, in my opinion, vote for his own reappointment.
The common law⁶ on conflicts of interest, stated generally, is that:

Officers are not permitted to place themselves in a position in which
personal interest may come into conflict with the duty which they owe to
the public. ... When conflicts of interest arise between an officeholder's
private interests and public duties, it is proper that the officeholder recuse
himself from the matter in which the conflict arises.⁷

² See Op. Att'y Gen. 2013-028, 2010-168, and 99-024.

³ See Op. Att'y Gen. 99-024.

⁴ A.C.A. § 26-75-605(d) (Repl. 2008) (emphasis added).

⁵ See Op. Att'y Gen. 99-024.

⁶ See A.C.A. § 1-2-119 (Repl. 2008) (adopting English common law to the extent not inconsistent with
local law).

⁷ 67 C.J.S. Officers § 347 (footnotes omitted); see also Op. Att'y Gen. 2012-018 and authorities cited
therein. Note also that a municipal public servant may not "use or attempt to use his or her official position
to secure special privileges or exemptions for himself or herself. . . that are not available to others except

The Honorable Jimmy Hickey, Jr.
State Senator

Opinion No. 2014-050

Page 3

Here, in my opinion, the member's personal, private interest in continuing to serve
on the A&P commission may conflict with his public duty to ensure that the best
available candidate occupies the office; his own interest in continuing may cloud
his judgment about which available candidate's appointment would best serve the
public interest. He should, in my opinion, recuse.

Assistant Attorney General J. M. Barker prepared this opinion, which I approve.

Sincerely,

Dustin McDaniel
Attorney General

DM:JMB/cyh

as may be otherwise provided by law." A.C.A. § 21-8-304(a) (Supp. 2013). The Arkansas Ethics
Commission may issue advisory opinions on that statute. See A.C.A. § 7-6-217(g)(2) (Repl. 2011).