Can a departing Arkansas constitutional officer sign a multi-year contract that binds the next person to hold that office?

Plain-English summary

State Auditor Andrea Lea asked whether a constitutional officer could enter into a five-year service contract in his last year of office that would bind his successor. The AG declined to give a yes-or-no answer because the question was posed in the abstract and contract validity is fact-dependent.

The AG did sketch the governing framework. A public officer's authority to contract is generally limited to the officer's own term in office. The exception, recognized in Arkansas Supreme Court cases reaching back to McConnell v. Arkansas Brick & Mfg. Co. (1902), is that a contract for "the doing of a particular and specified act" can extend past the term if it was made in good faith and in the public interest. Contracts for personal or professional services are different: a successor cannot be forced to accept the prior officer's choice of attorney, consultant, or other personal-services provider.

Even with a fact-rich question, the AG warned she could not give an opinion on a specific contract because the AG is not a finder of fact and cannot guarantee complete information.

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 law treats public officers as agents of limited authority. Persons contracting with them are charged with notice of the limits of that authority (the constructive-notice doctrine). The general rule that a contract is limited in duration to the officer's term flows from the principle that one officer cannot lock a successor into the prior officer's policy judgments.

The Arkansas Supreme Court has developed a narrow exception drawn from common-law decisions and 67 C.J.S. Officers § 225. A unitary contract for a specific deliverable (build a bridge, dredge a canal, supply a year of materials) is not void merely because performance crosses the term boundary, so long as the contract was a good-faith exercise of the officer's authority and served the public interest. McConnell, decided in 1902, and McArthur v. Smallwood (1955) both upheld long contracts on those grounds. Venhaus v. Adams (1988) cuts the other way: an officer who exceeds actual authority cannot bind the government regardless of duration.

The personal-services carve-out exists because the successor has the right to choose persons "on whose honesty, skill, and ability he must rely." That makes contracts to retain individual professionals (attorneys, accountants, advisors) presumptively ultra vires when they extend into a successor's term.

The AG's refusal to opine on a specific contract reflects the limits of the opinion process. The office is not a tribunal, has no subpoena power, and cannot make factual findings about how a contract was negotiated or whether it served the public interest.

Common questions

Does a state contract automatically expire when the officer who signed it leaves office?

No. Many state contracts run for multiple years and outlast the officer who signed them. The question is whether the particular contract falls within the officer's authority to bind beyond the term. That depends on the type of contract, the good faith of the negotiation, and the public interest in performance.

What types of contracts probably survive a change in officer?

Contracts for the doing of a specific, identified act, made in good faith for the public benefit. The classic examples are construction contracts, supply contracts for definite quantities, and similar arms-length deals with measurable deliverables.

What types of contracts probably do not survive?

Personal-services and professional-services retainers. A new officer is generally entitled to pick his or her own attorneys, accountants, and consultants. A long retainer signed at the end of a predecessor's term is the textbook example the AG flagged.

Can a contractor sue if a successor refuses to honor a contract?

Possibly, but the contractor took the contract subject to the limits of the officer's authority. If the contract was ultra vires (beyond the officer's power), the state may not be bound and the contractor may have no recourse against the public treasury. Venhaus v. Adams is the leading Arkansas case on that point.

Why didn't the AG just give a clear answer?

Because the question was general and Arkansas law on this issue is fact-specific. The AG cannot find facts or evaluate the public-interest justification for a particular deal in an opinion. The AG could only provide the legal framework.

Citations

• 67 C.J.S. Officers § 225 (general rule on officer contracting authority)
• Venhaus v. Adams, 295 Ark. 606, 752 S.W.2d 20 (1988) (officer cannot bind government beyond actual authority)
• McConnell v. Arkansas Brick & Mfg. Co., 70 Ark. 568, 69 S.W. 559 (1902) (contracts extending past officer's term not per se invalid)
• McArthur v. Smallwood, 225 Ark. 328, 281 S.W.2d 428 (1955) (upholding long-term contract)

Source

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

Original opinion text

Opinion No. 2015-048
September 4, 2015
The Honorable Andrea Lea
State Auditor
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
500 Woodlane Street, Suite 230
Little Rock, Arkansas 72201
Dear Auditor Lea:

This is my response to your request for an opinion on the following questions about a constitutional officer's power to contractually bind his or her successor in office:

1. Is there any legal limitation on a constitutional officer's ability to contractually bind his successors? For example, during the last year of his last term, a constitutional officer enters into a five year contract with a service provider or vendor. Is his immediate successor bound by that contract for the full duration of his first term?

2. If his successor is bound by the contract, are there any legal limitations on the length of time a constitutional officer may contract for?

RESPONSE

Your questions are general and do not fully describe any contract or the facts and circumstances of its execution and performance. As briefly set forth below, each such contract's validity generally depends on the prevailing facts and circumstances. As a result, I am unable to give an opinion of universal applicability on the questions. I do, however, briefly set forth governing law in general.

DISCUSSION

A legal encyclopedia describes applicable law in general:

A public officer can make only such contracts or agreements as are expressly or impliedly authorized. Persons contracting with a public officer must take notice of the extent of his authority.

Ordinarily, the power to make a contract is limited in time to the term of the officer who makes it. Where, however, the extent of an officer's power is not expressly limited, the facts and circumstances of each case must be considered in determining whether the officer may make a contract extending beyond his term.

Where the contract in question is a unitary one for the doing of a particular and specified act, but its performance may extend beyond the term of the officer making it, if it appears that the contract was made in good faith and in the public interest, it is not void because it will not be completed during the term of the officer. On the other hand, if the contract is for the performance of personal or professional services for the employing officer, his successor must be allowed to choose for himself those persons on whose honesty, skill, and ability he must rely so that such a contract, extending beyond the term of the officer making it, is ultra vires.

Arkansas law is generally consistent with the foregoing to the extent the issues have been addressed by the Arkansas Supreme Court.

Unless entering into a particular contract is beyond an officer's express or implied authority, its validity will depend on all the relevant facts and circumstances. I thus cannot give an opinion in response to your general questions. Even were I to receive a request for an opinion that stated relevant facts and circumstances, I still would be unable to render an opinion on that contract. Not being a finder of fact in connection with giving opinions, there could be no assurance that I would be completely informed of all relevant facts and circumstances.

I regret I cannot be of more assistance in this matter. The foregoing should, however, offer some general guidance on the questions you have posed.

Sincerely,
LESLIE RUTLEDGE
Attorney General