Can an Arkansas county judge take 911 dispatch away from the sheriff without the sheriff's consent?

Plain-English summary

State Representative David Branscum asked about a county where the sheriff currently operated the 911 and dispatch system. He wanted to know whether the county judge could take operational control over the sheriff's objection.

The AG worked through the Arkansas Public Safety Communications Act of 1985 (A.C.A. §§ 12-10-301 through -324):

• A 911 communications center is operated by one of three types of "operating agencies": offices of emergency services, fire departments, or law enforcement agencies (A.C.A. § 12-10-303(16)).
• The "chief executive" of the political subdivision designates which agency operates the center. For a county, that's the county judge under A.C.A. § 12-10-303 and Amendment 55, § 3.
• When the sheriff's office is to be designated, the sheriff's concurrence is required because the office is led by a separately elected official (A.C.A. § 12-10-302(e)(2)).
• The Act says nothing direct about de-designation, but the AG reasoned that the power to designate generally implies the power to undesignate. The county judge can revoke the sheriff's designation without needing the sheriff's concurrence.

Practical considerations would still matter. Staffing requirements (A.C.A. § 12-10-306(a)(3)), the costs of re-designating (A.C.A. §§ 12-10-318, -319, -321 through -323), and any existing agreements or commitments about 911 services would all bear on whether and how a transfer should happen. Local counsel should advise.

On the ACIC question, the AG was clear: the county judge cannot access ACIC or use anyone else to do so. ACIC access is restricted by statute (A.C.A. § 12-12-207(a)) to "governmental criminal justice agencies and others specifically authorized." Local chiefs of police have their own access as certified law enforcement officers (A.C.A. § 12-12-211), but the AG didn't understand what scenario the question contemplated. He noted that a 911 center has ACIC access for law enforcement purposes (A.C.A. § 12-10-316(b)) and that a local police department can be designated as the operating agency.

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.

Background and statutory framework

The 1985 Public Safety Communications Act sets up a tiered structure. The county judge, as chief executive, designates a 911 communications center location and an operating agency. The operating agency must be an office of emergency services, fire department, or law enforcement agency. Each agency has the staff and equipment to run 24-hour public safety communications.

When the designated operating agency happens to be the sheriff's office, two separately-elected officials are in the picture: the county judge and the sheriff. The legislature required the sheriff's concurrence to originate the designation because designating without concurrence would create an immediate operational problem (the sheriff might refuse to provide the personnel). The same political dynamic doesn't apply to a county judge revoking the designation; the sheriff doesn't have an operational role to play in undoing what's already in place, and the county judge has the underlying chief-executive responsibility for ensuring 911 services continue.

The AG cited his earlier Opinion 2004-242 (predecessor's view on the same general question), Opinion 2013-147 (county judge's oversight role under A.C.A. § 12-10-306(a)(4)), and Opinion 2000-321 (sheriff's concurrence required for initial designation).

For ACIC, the statutory framework is highly restricted. Access to criminal-history information is limited to specifically authorized users. A county judge isn't on the authorized list. Chiefs of police are. A 911 center can use ACIC because law enforcement uses it for dispatch purposes.

Common questions

Can the county judge just take over and run dispatch directly?

No. The county judge is the "chief executive" who designates the operating agency, but the operating agency itself must be one of the three types listed in A.C.A. § 12-10-303(16): emergency services office, fire department, or law enforcement agency. The county judge's own office isn't an "operating agency" within the statute. So the judge can revoke the sheriff's designation and assign 911 to a different qualifying agency (a fire department, for example), but the judge can't run it from his own office directly.

What if the sheriff refuses to hand over the equipment and personnel?

A practical problem, not a legal one. The AG didn't address enforcement mechanics. Presumably the county judge could go to circuit court for an order. The sheriff's resistance would be ultra vires given that the county judge holds the designating authority.

Could the sheriff's office stop providing 911 funding to force the judge's hand?

The funding mechanics are separate. A.C.A. §§ 12-10-318 through -323 govern 911 funding sources, which typically include user fees on phone subscribers. The sheriff doesn't control those revenue streams. The judge does, through the appropriation process.

What about a verbal agreement that the sheriff would "always" run dispatch?

Verbal arrangements between elected officials about institutional roles generally don't bind their successors, and may not bind the official who made them. Under A.C.A. § 12-10-303 the designating authority sits with whoever holds the chief-executive role. A verbal commitment that the sheriff will always be the operating agency wouldn't trump the statute's allocation of authority.

Does the AG opinion let the judge cut services to save money?

No. The judge has authority to redesignate, but not to eliminate the 911 system. Arkansas counties have a baseline obligation under the 1985 Act to maintain 911 service. Re-designating to a cheaper operating agency might be permissible if the new agency can actually deliver service; eliminating dispatch isn't.

Source

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

Original opinion text

Opinion No. 2014-082
September 29, 2014

STATE OF ARKANSAS
THE ATTORNEY GENERAL
Dustin McDANIEL

The Honorable David L. Branscum
State Representative
Post Office Box 370
Marshall, Arkansas 72650-0370

Dear Representative Branscum:

You have requested my opinion on the following questions concerning 911 services:

1. Where a county sheriff has control of the county's 911 and dispatch, under what circumstances may a county judge transfer control to the office of county judge?

2. Does the county sheriff need to have concurrence to relinquish control of the county's 911 and dispatch?

3. Where the county judge has the duty and authorization to oversee the county's 911 and dispatch, would it be permissible to utilize the local chiefs of police to check ACIC?

4. In county government, who may oversee the county's 911 and dispatch? What are the requirements for transferring that duty? Who may request and effect the transfer?

RESPONSE

Although you have provided no specific background information for evaluating these questions, it seems clear I am to assume they pertain to a 911 system that is currently operated by the county sheriff. In response to Questions 1, 2 and 4, the agencies that may operate county 911 communications center systems are limited to offices of emergency services, fire departments, and law enforcement agencies. The governing statutes do not speak directly to the authority to divest a 911 operating agency from its duties or the circumstances under which such a divestiture might occur. As a general proposition, I believe the authority to designate the operating agency also includes the authority to determine whether such agency shall remain designated. In the case of a county 911 system, the general authority to determine whether an operating agency shall remain designated resides in the county judge and most likely does not require the concurrence of the head of the operating agency, i.e., the sheriff in the scenario you present. As a practical matter, however, the exercise of this authority will likely depend upon various considerations, including staffing requirements and the costs associated with re-designating an operating agency, as well as any existing agreements or commitments concerning the provision of 911 services.

Your third question is somewhat unclear. Strictly speaking, a county judge may not access the Arkansas Crime Information Center [ACIC] system or "utilize" anyone to "check ACIC." Moreover, as certified law enforcement officers, local chiefs of police have access to the ACIC system. However, a 911 center has access to ACIC in order to serve the informational needs of law enforcement; and generally speaking, a local police department can be designated to operate a 911 center. Your question may somehow relate to this designation, but I am unable to address any issues in this regard without clarification of the precise question.

DISCUSSION

Question 1 - Where a county sheriff has control of the county's 911 and dispatch, under what circumstances may a county judge transfer control to the office of county judge?

Question 2 - Does the county sheriff need to have concurrence to relinquish control of the county's 911 and dispatch?

Question 4 - In county government, who may oversee the county's 911 and dispatch? What are the requirements for transferring that duty? Who may request and effect the transfer?

I address these questions together because each plainly relates to the management of 911 services. When you say the sheriff has "control" of the county's 911 and dispatch, I assume you mean the sheriff's office is the "operating agency" for the county's "911 public safety communication center." Some explanation of these terms is necessary.

The Arkansas Public Safety Communications Act of 1985 ("911 Act" or "the Act," A.C.A. §§ 12-10-301 - 324) provides for the establishment and operation of "911 public safety communications centers," which are defined as follows:

"911 public safety communications center" means the communications center operated on a twenty-four (24) hour basis by one (1) of the operating agencies defined by this subchapter and as designated by the chief executive of the political subdivision which includes the [PSAP] and dispatches one (1) or more public safety agencies.

"Operating agency" is defined under the Act as "the public safety agency authorized and designated by the chief executive of the political subdivision to operate a 911 public safety communications center."

The "chief executive" of the political subdivision is thus given the authority to designate the agency which is to operate a 911 communications center. The chief executive of a county is the county judge. "Operating agencies" are limited to "offices of emergency services, fire departments, and law enforcement agencies of the political subdivisions." If the county sheriff's office is to be designated to operate a county 911 center, the concurrence of the county sheriff is required.

With regard to a transfer of 911 operations, the statutes offer no specific guidance on the matter. My immediate predecessor concluded, however, that the authority to designate also includes determining whether such designation shall remain in effect:

Although the statutes do not speak directly to the authority to divest an operating agency from its duties, it is reasonable to conclude that the power of the county judge to designate the operating agency also includes the power to determine whether a current operating agency shall remain designated.

I agree with this general conclusion. In my opinion, the authority to designate generally reasonably extends to determining that a current delegation should be withdrawn. As I have previously noted, the county judge has some degree of authority over county 911 operations. While the Act does not elaborate upon this authority, I have previously observed that "presumably it includes ensuring that the 911 system is properly established and operating, and that any specific requirements of the Act are met." It may well be that in exercising this oversight authority, the county judge has occasion to determine that a current operating agency should not remain designated. In the absence of some language in the Act suggesting that the operating agency must concur in that determination, it is my conclusion that the agency's concurrence is not required. This conclusion extends to the county sheriff's office. As noted above, the authority to determine the center's location and its operating agency plainly resides in the county judge. The required concurrence of the elected county sheriff if his agency is to be designated is understandable, given the sheriff's administrative authority over his office. But in my opinion, it does not follow that the sheriff must concur if his office is to be divested of its operating agency duties.

I should nevertheless again point out that the governing statutes do not speak directly to the authority to divest a 911 operating agency from its duties, or the circumstances under which such a divestiture might occur. Various factual considerations will conceivably come into play when addressing the possible exercise of this authority. As a practical matter, re-designating an operating agency will probably depend upon a number of factors, including staffing requirements, expenditure and accounting analyses regarding current 911 operations, and current agreements or commitments concerning the provision of 911 services. Consultation with local counsel is therefore advisable when considering any such transfer of duties.

Question 3 - Where the county judge has the duty and authorization to oversee the county's 911 and dispatch, would it be permissible to utilize the local chiefs of police to check ACIC?

I am uncertain regarding the actions contemplated by this question. Access to data available through the ACIC system is strictly limited under the ACIC statutes (A.C.A. § 12-12-201 et seq.): "The use of the system is restricted to serving the informational needs of governmental criminal justice agencies and others specifically authorized . . . ." As a general matter, therefore, a county judge may not access the ACIC system or "utilize" anyone to "check ACIC." I also note that as certified law enforcement officers, local chiefs of police generally have access to the ACIC system. It may bear noting that a 911 center has access to ACIC in order to serve the informational needs of law enforcement. And generally speaking, a local police department can be designated to operate a 911 center. Your question may somehow relate to this designation, but I am unable to address any issues in this regard without clarification of the precise question.

Deputy Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.

Attorney General

DM/EAW:cyh