In Arkansas, can a deputy prosecuting attorney serve on a county election commission when the elected prosecutor (the deputy's supervisor) appears on that county's ballot?

Plain-English summary

The Craighead County Election Commission had just sworn in Keith L. Chrestman, who in January 2015 became a deputy prosecuting attorney in Mississippi County. Mississippi and Craighead Counties are both in the Second Judicial District, meaning Mr. Chrestman's supervisor was the same elected prosecutor (Scott Ellington) whose name would appear on the Craighead County ballot each election cycle. The commission asked whether that arrangement disqualified him.

Ark. Code Ann. § 7-4-109(c)(1) provided that "[a] person who is a paid employee of a political party or of a candidate for office on that county's ballot shall not be a member of a county board or an election official." The question turned on whether the supervising prosecutor was Mr. Chrestman's "employer" for purposes of that statute.

The AG's answer was no. Reading the statute according to its ordinary meaning, "paid employee of a candidate" meant someone whose salary came from the candidate. Deputy prosecutors in Arkansas had been state employees since January 1, 2000, with their salaries paid from state appropriations rather than out of the prosecutor's pocket. The fact that the prosecutor controlled and directed the deputy's work made the deputy an employee in the conventional sense, but did not make the prosecutor the source of pay. The AG followed a similar reading from Opinion 98-109, which had concluded that an employee of a constitutional office is not the "paid employee" of the elected officer who heads it.

The AG noted one separate caveat: under Ark. Code Ann. § 7-4-109(c)(2)(A), Mr. Chrestman was still prohibited from participating in the campaign of any candidate whose name appeared on the Craighead County ballot, including his supervising prosecutor. Act 1253 of 2015 added additional campaign-related prohibitions to that subsection.

Currency note

This opinion was issued in 2015. 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

Article 3, Section 10 of the Arkansas Constitution, as amended by Amendment 85 (adopted in 2008), authorized the General Assembly to set the qualifications of election officers. Before 2008, the constitutional provision generally barred any state officer or employee from serving as an election official. Amendment 85 replaced that broad bar with a narrower legislative regime.

The relevant statute was § 7-4-109(c)(1), which the General Assembly amended over time. Under Act 647 of 1997, the language read "[n]o person who is a paid employee of . . . any person running for statewide office." Act 1457 of 2013 broadened that to "paid employee of . . . a candidate for office on that county's ballot." The AG read both formulations as turning on the source of payment, not on supervisory relationships.

The definition of "election official" in § 7-4-101(10) extended beyond county election commissioners to include poll workers serving as election clerks, judges, or sheriffs. Act 1042 of 2015 further expanded the definition to include people performing election coordinator duties and deputy county clerks or people assigned by a county clerk to conduct early voting.

The supporting reference to Opinion 98-109 mattered. That earlier opinion had reasoned that an employee of a constitutional office (a sheriff's deputy, for example, or a clerk's staff member) is not by virtue of that employment a "paid employee" of the elected constitutional officer. The 2015 opinion treated deputy prosecutors the same way: deputies serve at the prosecutor's appointment and pleasure under Ark. Code Ann. § 16-21-153(b), and their work is controlled by the prosecutor, but their pay comes from the state.

Common questions

Did Mr. Chrestman have to step down from the commission while his supervising prosecutor's name was on the ballot?
No, in the AG's reading of § 7-4-109(c)(1). The statute disqualified people paid by a candidate, not people supervised by a candidate.

Was the AG saying a deputy prosecutor could campaign for the elected prosecutor?
No. § 7-4-109(c)(2)(A) prohibited election officials from participating in the campaign of a candidate listed on the ballot in that county. The AG flagged this expressly.

How would the analysis have changed if the deputy were paid directly by the prosecutor instead of by the state?
The AG's reading suggests the answer would have flipped. The opinion identified payment as the critical element. A deputy paid out of the elected official's own funds, rather than from state appropriation, would more readily fit the statutory language.

Did Amendment 85 to the Arkansas Constitution change the answer?
Amendment 85 removed the older blanket ban on government employees serving as election officials. The 2015 question arose precisely because that broad bar had been replaced by the narrower "paid employee" rule the AG was construing.

Were there other Arkansas restrictions on who could serve on a county election commission?
The AG noted that no other statute would have barred Mr. Chrestman from serving. The broader rules were in § 7-4-109 and in the definitions in § 7-4-101.

Source

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

Original opinion text

Opinion No. 2015-022
June 24, 2015
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

Jeannette A. Robertson, Chairperson
Craighead County Election Commission
c/o Robertson Law Firm
408 West Jefferson Avenue
Jonesboro, Arkansas 72401

Dear Ms. Robertson:

This is in response to your request, made on behalf of the Craighead County Election Commission ("Commission"), for my opinion concerning Ark. Code Ann. § 7-4-109(c)(1) (Supp. 2013). This provision of the Election Code provides that "[a] person who is a paid employee of a political party or of a candidate for office on that county's ballot shall not be a member of a county board or an election official."

The Commission's specific question pertains to Keith L. Chrestman, who was just sworn in to serve on the Commission. You state that Mr. Chrestman accepted a position in January, 2015, as deputy prosecuting attorney for Mississippi County. Mississippi County and Craighead County are part of the same judicial district (Second Judicial District). Mr. Chrestman's immediate supervising attorney will therefore be Mr. Scott Ellington, the duly elected prosecuting attorney for the Second Judicial District. With this information in mind, the Commission asks:

Since Mr. Ellington or any successor stands for election periodically as a candidate, the question becomes does the employment position of Mr. Chrestman fall within the fact situation outlined in [Ark. Code Ann. § 7-4-109(c)(1)] or any other election law pertaining to eligibility of an individual to serve on an election commission?

You note that Arkansas Attorney General Opinion 98-109 appears to support the conclusion that Ark. Code Ann. § 7-4-109(c)(1) will not stand as a bar to Mr. Chrestman's service on the Craighead County Election Commission. But because this opinion preceded an amendment to this statute, the Commission seeks my review of the applicable law and my opinion on the above question.

RESPONSE

It is my opinion that Mr. Chrestman's employment situation does not fall within the prohibition outlined in Ark. Code Ann. § 7-4-109(c)(1). Nor has my research revealed any other election law that would bar Mr. Chrestman from serving on the Craighead County Election Commission. The answer to the above question is therefore "no," in my opinion.

DISCUSSION

Article 3, section 10 of the Arkansas Constitution, as amended by Amendment 85, provides that "[t]he General Assembly shall determine the qualifications of an election officer." Consistent with this constitutional provision, Ark. Code Ann. § 7-4-109 sets out the general qualifications of, among others, county election commissioners. The statutory subsection at issue, section 7-4-109(c)(1), prohibits service on a county election commission by a "paid employee" of a candidate:

A person who is a paid employee of a political party or of a candidate for office on that county's ballot shall not be a member of a county board or an election official.

The issue under your question, therefore, is whether a deputy prosecutor is a "paid employee" of a candidate, and thus ineligible to serve on the county election commission, when his or her supervising prosecuting attorney stands for reelection.

In attempting to resolve this question, which turns on the proper interpretation of subsection 7-4-109(c)(1), I am guided by the following principles of statutory construction:

The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary meaning and usually accepted meaning in common language. We construe the statute so that no word is left void, superfluous, or insignificant; and meaning and effect are given to every word in the statute if possible. When the language of the statute is plain and unambiguous, there is no need to resort to rules of statutory construction. When the meaning is not clear, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject.

Additionally:

[T]he meaning of a statute must be determined from the natural and obvious import of the language used by the legislature without resorting to subtle and forced construction for the purpose of limiting or extending the meaning .... It is our duty to construe a legislative enactment just as it reads.

Applying these principles, I believe A.C.A. § 7-4-109(c)(1) provides in unambiguous terms that a person who works for and is paid by a candidate may not serve on the county election commission if the candidate's name will be on that county's ballot. This follows, in my opinion, from the natural and obvious import of the phrase "paid employee of a ... candidate." This phrase is clearly possessive. It may therefore be rephrased as "the candidate's paid employee." The prohibition is therefore plainly directed toward a person who works for a candidate in return for salary or wages paid by the candidate.

This office reached a similar conclusion in the opinion you have noted, Op. Att'y Gen. 98-109, at a time when subsection 7-4-109(c)(1) stated that "[n]o person who is a paid employee of ... any person running for statewide office" may serve on a county election commission. In my opinion, the change from that language to "paid employee of . . . a candidate for office on that county's ballot" is immaterial for purposes of your question. The 1998 Opinion concluded that "the employee of a constitutional office is not, by virtue of that employment, a paid employee of the constitutional officer who is elected or appointed to head that office." The same is true, in my opinion, of a deputy prosecuting attorney.

Deputy prosecutors are paid employees of the State of Arkansas. While each deputy prosecutor is appointed by the prosecutor and subject to the prosecutor's supervision and removal, this does not make the deputy the prosecutor's paid employee. The deputy undoubtedly is the prosecutor's employee in the sense that the prosecutor controls and directs the deputy's work. But the prosecutor is not the source of payment for the deputy's salary. And in my opinion, when subsection 7-4-109(c)(1) is viewed from an ordinary-language perspective, this payment element is critical to the determination whether a person is a "paid employee of a ... candidate."

It is therefore my opinion in response to your specific question that Mr. Chrestman's employment situation does not fall within the prohibition outlined in A.C.A. § 7-4-109(c)(1). Nor has my research revealed any other election law that would bar Mr. Chrestman from serving on the Craighead County Election Commission. Mr. Chrestman is plainly prohibited, however, from participating in the campaign of a candidate listed on the ballot in Craighead County. A.C.A. § 7-4-109(c)(2)(A) (Supp. 2013). See also Act 1253 of 2015, § 1 (adding several specific campaign-related prohibitions to subsection 7-4-109(c)(2)).

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

Sincerely,

LESLIE RUTLEDGE
Attorney General
LR/EAW:cyh