How does Arkansas's bail bondsman licensing law apply to congressional-district residency on the board, who sets continuing-education fees, and whether the Arkansas Professional Bail Association's fee collections are subject to FOIA?

Plain-English summary

Senator Linda Collins-Smith asked eight questions about the Arkansas Professional Bail Bond Company and Professional Bail Bondsman Licensing Board, which split into two clusters: board-membership residency under § 17-19-106(b)(3)(B)(i), and the continuing-education fee structure under § 17-19-402.

On the residency cluster, § 17-19-106 required three of the Board's members to be licensed bail bond company owners, with no two of those three residing in the same congressional district. Senator Collins-Smith asked whether the residency rule turned on the owner-member's residence, the bail bond company's location, or both.

The AG read the statute by its plain language. The "bail bondsman members" of the Board are "licensed bail bond company owners." The residency rule applies to "members," meaning the owner-members. So the owner-member's residence (the address where the person lives) is what counts, not the company's principal place of business. A bondsman whose company is headquartered in one congressional district but who personally lives in another is treated according to the personal residence. With multiple owners on a single bail bond company, the statute does not say which owner applies for a Board seat; that is up to the company. And there is no requirement that an owner-member live in the same congressional district as the business.

On the fee cluster, § 17-19-402 set up an unusual structure. The Arkansas Professional Bail Association (a private trade association, not a government entity) solicits proposals from educational providers, designates one or more entities to provide pre-license and continuing education, and establishes a schedule of fees for that education. But the schedule of fees is subject to approval by the Board. So the Board ultimately sets the fees by deciding whether to approve the Association's proposed schedule. The Association is not the regulator; the Board is.

The AG addressed two specific concerns underlying the questions. First, whether the Association could collect fees "for themselves" in a way that diverted money away from the education program. The AG said no, the fees are authorized only for the education training under § 17-19-402. Second, whether the public can see records of fee collections. The AG said yes, those records are public records under the Arkansas FOIA because they constitute records of the performance of official functions (the Board approving the schedule and the licensing scheme depending on the fees). No exemption removed them from the FOIA's coverage.

On where the fees should be deposited, the AG noted that § 17-19-402 was silent and no other statute or regulation addressed it. But the fees were unambiguously earmarked for the bail bondsman educational program.

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

Arkansas bail bondsmen are licensed by the Professional Bail Bond Company and Professional Bail Bondsman Licensing Board under chapter 19 of title 17. The Board's composition is fixed by § 17-19-106(b)(3): three licensed bail bond company owners (with the congressional-district residency rule and additional African-American and female-member requirements), plus other categories of members.

To qualify as a bail bond company under § 17-19-202(c)(1)(B), the partnership, firm, or corporation must include at least one owner who has been licensed as a bail bondsman for at least two of the last three years. The licensing scheme requires pre-license education and continuing education, both of which are administered through the framework in § 17-19-401 et seq.

Section 17-19-402 was the unusual hybrid. The Arkansas Professional Bail Association (a private association of bondsmen, not a government entity) was given the front-end role of soliciting education-provider proposals from entities already approved by the State Board of Private Career Education, designating educational entities, and setting a fee schedule. The Board kept the back-end authority over which providers got approved and what the fees would be.

The Board's general regulatory authority came from § 17-19-106(b)(5) (rulemaking power for licensing and regulating professional bail bond companies and bondsmen) and § 17-19-108 (rulemaking for the education sections). Those provisions reinforced that the Board, not the Association, is the entity exercising governmental power.

The FOIA "public records" definition in § 25-19-103(5)(A) covers writings that "constitute a record of the performance or lack of performance of official functions" carried out by a public official, employee, governmental agency, or any agency wholly or partially supported by public funds or expending public funds. The AG reasoned that the Board's setting and the Association's collecting of education fees were part of the Board's licensing function, which made the records public.

The statutory-construction principle the AG used was the standard plain-language rule, citing Brown v. State (Ark. 2009): construe the statute as it reads, give words their ordinary meaning.

Common questions

If a bondsman lives in Pulaski County but his bail bond company is in Sebastian County, which district counts for the Board residency rule?
The owner-member's personal residence. The bondsman who lives in Pulaski County is treated as living in Pulaski County's congressional district, regardless of where the company is.

Can two owners of the same bail bond company sit on the Board?
The opinion does not directly address that scenario, but the residency rule still applies separately to each. If both owners live in the same congressional district, they couldn't both serve simultaneously under § 17-19-106(b)(3)(B)(i).

Does the Bail Association set the continuing-education fees?
The Association proposes the schedule. The Board approves (or doesn't) the proposed schedule. Effectively, the Board sets the fees by approving them; the Association is the conduit, not the final authority.

Can the Association keep some of the fee money for its own operations?
Not under the AG's reading. The fees are authorized for the bondsman education program, not for the Association's general operations.

Are fee-collection records open to the public?
Yes. The AG read them as public records under the FOIA because they reflect the performance of the Board's licensing function. No exemption removed them from coverage.

Is the Arkansas Professional Bail Association a government entity?
No. The AG said the Association is a private trade association with delegated front-end responsibilities for the education program. The Board, not the Association, is the regulator.

Where must the fees be deposited?
Section 17-19-402 was silent and no other statute or regulation addressed deposit location. The AG noted that the fees were earmarked for the education program but did not identify a required account or fund.

Source

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

Original opinion text

Opinion No. 2015-028
June 2, 2015

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

The Honorable Linda Collins-Smith
State Senator
Post Office Box 90
Pocahontas, Arkansas 72455-0090

Dear Senator Collins-Smith:

This is in response to your request for my opinion on several questions concerning the Arkansas Professional Bail Bond Company and Professional Bail Bondsman Licensing Board ("Board"). The first set of questions pertains to Ark. Code Ann. § 17-19-106(b)(3)(B)(i), which states that "[n]o two (2) of the three (3) bail bondsmen members of the board shall reside in the same congressional district." The following questions are presented in this regard:

1. If two of the three bail bondsmen members cannot reside in the same congressional district, must the bail bond company the bondsman represents be located in the congressional district that they represent for appointment purposes?
2. Is the place of official business a bail bond company or business lists with the Arkansas Professional Bail Bond Company & Arkansas Professional Bail Bond Licensing Board the official address (residence) the company owner must claim for its congressional district purposes for a board appointment?
3. If the bail bond company has more than one owner listed with the Arkansas Professional Bail Bondsman Licensing Board, which owner must be the one to apply for the board appointment and must they reside in the same congressional district as their business?

The second set of questions pertains to Ark. Code Ann. § 17-19-402 regarding education requirements for professional bail bondsmen:

4. Who is responsible for setting the schedule of fees for Ark. Code Ann. § 17-19-402?
   a. Does the State of Arkansas recognize the Arkansas Professional Bail Association ["Association"] as a government entity, which may enforce the laws or statutes of Arkansas?
5. What guidelines were given for the implementation of fees to be collected for educational purposes?
6. Where must the educational fees be deposited and what are they earmarked for?
7. Has the Arkansas Professional Bail Association been granted authority or power by the State of Arkansas to collect educational/registration fees for themselves pursuant to Ark. Code Ann. § 17-19-402?
8. What is the transparency of monies collected by the Arkansas Professional Bail Association pursuant to Ark. Code Ann. § 17-19-402?

RESPONSE

It is my opinion that the answer to Questions 1 and 2 is "no." In response to Question 3, the relevant statute does not control which bail bond company owner applies for a Board appointment. Nor is there any requirement that an owner reside in the same congressional district as the business. It is my opinion in response to Question 4 that the Board ultimately sets the fees by approving the schedule of fees established by the Association, and that the Association is not a governmental entity. With regard to Question 5, the guidelines are found in the education requirements identified by the statute that provides for the fees. In response to Question 6, the statute is silent regarding fee deposits, but I believe it is clear the fees are earmarked for the bail bondsmen educational program. The answer to Question 7 is "no," in my opinion, to the extent "for themselves" means the fees or some portion thereof would not be used for the education program. It is my opinion in response to Question 8 that records of these fee collections are public records as defined by the Arkansas Freedom of Information Act.

DISCUSSION

Question 1 - If two of the three bail bondsmen members cannot reside in the same congressional district, must the bail bond company the bondsman represents be located in the congressional district that they represent for appointment purposes?

The controlling statute, Ark. Code Ann. § 17-19-106, in relevant part requires that "[t]hree (3) members of the board shall be licensed bail bond company owners ...." Additionally, and relevant to your specific questions, "[n]o two (2) of the three (3) bail bondsman members shall reside in the same congressional district." This latter residency provision, which is at issue under your first three questions, therefore applies to the "bail bondman members" of the Board who, according to the previous subsection, must be "licensed bail bond company owners."

Membership on the Board thus plainly extends to the owner of the bail bond company, whom I will refer to as the "owner-member." I believe this follows from a plain reading of the statute. It is of course well established that a statute should be construed just as it reads, giving the words their ordinary and usually accepted meaning. With regard to your first two questions, therefore, the residence of the owner-member is the basis for determining whether the congressional district limitation has been transgressed, that is, whether two of the three owner-members reside in the same congressional district, contrary to Ark. Code Ann. § 17-19-106(b)(3)(B)(i).

With this understanding of the statute in mind, it is my opinion that the answer to the above question is "no." The application of subsection 17-19-106(b)(3)(B)(i) turns on the address (residence) of the owner-member, and not the address of the bail bond company.

Question 2 - Is the place of official business a bail bond company or business lists with the Arkansas Professional Bail Bond Company & Arkansas Professional Bail Bond Licensing Board the official address (residence) the company owner must claim for its congressional district purposes for a board appointment?

The answer to this question is "no," in my opinion. I see no basis for concluding that the owner-member must claim the company's principal place of business as the owner's address (residence) for purposes of the congressional district limitation.

Question 3 - If the bail bond company has more than one owner listed with the Arkansas Professional Bail Bondsman Licensing Board, which owner must be the one to apply for the board appointment and must they reside in the same congressional district as their business?

Section 17-19-106 does not control which owner applies for a Board appointment, in the case of a bail bond company with more than one owner listed with the Board. Nor is there any requirement that an owner reside in the same congressional district as their business.

Question 4 - Who is responsible for setting the schedule of fees for Ark. Code Ann. § 17-19-402?
a. Does the State of Arkansas recognize the Arkansas Professional Bail Association ["Association"] as a government entity, which may enforce the laws or statutes of Arkansas?

It will be helpful in addressing this, and your remaining questions, to set out the full text of Ark. Code Ann. § 17-19-402:

(a)(1) The Arkansas Professional Bail Association on an annual basis shall solicit proposals from education provider applicants that are approved by the State Board of Private Career Education as education providers, and the Arkansas Professional Bail Association will submit the approved providers to the Professional Bail Bond Company and Professional Bail Bondsman Licensing Board for final approval.
(2) Upon review of the proposals, the association shall designate an entity or entities to establish an educational program for professional bail bondsmen that will enable bail bondsmen to meet the prelicense and continuing education requirements of § 17-19-212 and § 17-19-401 et seq.
(b)(1) The association or its designee shall establish a schedule of fees to be paid by each bail bondsman for the educational training.
(2) The schedule of fees submitted by the association shall be subject to approval of the board.

Subsection 17-19-402(b) governs the above question regarding responsibility for the setting of fees. Pursuant to this subsection, the Association or its designee establishes a schedule of fees for education training, subject to Board approval. It is therefore my opinion that the Board ultimately sets the fees by approving the schedule.

It is my further opinion in response to the above question that the Association is not a governmental entity. The Association is tasked with certain responsibilities in connection with the development of an education program to enable bail bondsmen to meet applicable licensing and continuing education requirements. But the Association is not thereby established as a governmental entity, in my opinion. Rather, the Board is the entity that has been charged with regulating these requirements and otherwise enforcing the law pertaining to the licensing of professional bail bondsmen.

Question 5 - What guidelines were given for the implementation of fees to be collected for educational purposes?

The guidelines are found in Ark. Code Ann. §§ 17-19-212 and -401. These statutes set out the pre-license and continuing education requirements that are to be covered by the education program under Ark. Code Ann. § 17-19-402. The purpose of the fee schedule is to support this education training.

Question 6 - Where must the educational fees be deposited and what are they earmarked for?

There is no clear answer to the first part of this question. Section 17-19-402 is silent regarding fee deposits. And according to my review, no other statute or regulation addresses the matter. I believe it is clear in response to the second part of this question, however, that the fees are earmarked for the bail bondsmen educational program established pursuant to § 17-19-402.

Question 7 - Has the Arkansas Professional Bail Association been granted authority or power by the State of Arkansas to collect educational/registration fees for themselves pursuant to Ark. Code Ann. § 17-19-402?

"No," if "for themselves" means the fees or some portion thereof would not be used for the education program under Ark. Code Ann. § 17-19-402. In my opinion, the fees are authorized for the sole purpose of the education training to be provided under this statute.

Question 8 - What is the transparency of monies collect by the Arkansas Professional Bail Association pursuant to Ark. Code Ann. § 17-19-402?

In my opinion, records of these fee collections are public records as defined by the Arkansas Freedom of Information Act (FOIA). The fees are exacted pursuant to Ark. Code Ann. § 17-19-402 in furtherance of obtaining and maintaining bail bondsmen licenses. The Board, as the licensing entity, approves the education providers and the fee schedule established for this purpose. I believe it necessarily follows that setting and collecting the fees are Board functions, and that records of the fee collections are "public records" under the FOIA because they "constitute a record of the performance or lack of performance of official functions that are or should be carried out by a public official or ... a governmental agency ...."

It is therefore my opinion that records of the fee collections are subject to public inspection and copying under the FOIA, absent some exemption. I am unaware of any provision of law that would generally exempt such records from public disclosure.

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

Sincerely,

LESLIE RUTLEDGE
Attorney General
LR/EAW:cyh