Can an Arkansas city police chief serve as an interim city manager at the same time?

Plain-English summary

A prosecuting attorney asked the AG two related questions about cities organized under the city-manager form of government: (1) Could a police chief who is currently a full-time city employee also act as the city manager? (2) If the city manager has supervisory authority over the police chief, would dual service create a conflict of interest under Ark. Code Ann. § 14-47-120?

The AG separated two distinct questions: the statutory eligibility question (can the police chief be appointed acting city manager?) and the common-law incompatibility question (can the police chief actually hold both positions at once?).

Statutory eligibility. Section 14-47-119(b)(3) says that a city manager "shall reside in the city and devote his or her full time to the business of the city." A police chief who already works full time has, by definition, other duties that prevent him from devoting full time to city-manager work. But that subsection applies by its terms to "the city manager" appointed under § 14-47-119, not to an "acting city manager" appointed under the separate provision in § 14-47-121. The acting-city-manager statute contains no full-time requirement. Other provisions of § 14-47-121 (like the discretion-based bond requirement and a separate compensation rule) confirm that the city-manager statutory framework does not apply to acting city managers. So a police chief is eligible to be appointed acting city manager.

Incompatibility doctrine. Even when no statute bars dual service, the common-law doctrine of incompatibility may. The Arkansas Supreme Court has described incompatibility as existing "when one [office] is subordinate to the other, and subject in some degree to the supervisory power of its incumbent" (Tappan v. Helena Fed. Savings & Loan Assn.). In Thompson v. Roberts, the court held that the dual service of a mayor as part-time bookkeeper for a city of the second class violated the doctrine, and applied the doctrine even though the bookkeeper position was not technically an "office."

The AG applied that framework. Section 14-47-120(1)(A) authorizes a city board to enact an ordinance vesting the city manager with authority to "supervise and control all administrative departments, agencies, offices, and employees." If a city has done that, and the city manager supervises the police chief, then a single person holding both positions creates the supervisory inconsistency that the incompatibility doctrine targets. The same conflict arises for an acting city manager, whose powers and duties are co-extensive with those of the city manager. The AG concluded that dual service as police chief and acting city manager would be barred by the incompatibility doctrine in those circumstances.

The opinion does not say what happens if the local ordinance does not in fact vest the city manager with supervisory authority over the police chief, but the analysis turns on that supervisory relationship. Without the relationship, the incompatibility doctrine's primary trigger drops out.

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's city-manager form of government is governed by Ark. Code Ann. § 14-47-101 et seq. Under § 14-47-119, the city manager is appointed by the board of directors (or, in cities over 100,000, by the mayor under § 14-47-119(a)(1)(B)). The city manager must reside in the city, devote full time to city business (§ 14-47-119(b)(3)), have "special qualifications" (§ 14-47-119(b)(2)), receive a salary set by the board (§ 14-47-119(d)), and furnish a board-approved fidelity bond (§ 14-47-119(f)).

Section 14-47-121 separately governs the appointment of an "acting city manager," with its own provisions on bond (§ 14-47-121(c)(1), in the board's discretion) and compensation (§ 14-47-121(d), "reasonable compensation to be fixed by the board"). The full-time requirement in § 14-47-119(b)(3) is not carried over.

Section 14-47-120(1)(A) authorizes the city board to enact an ordinance vesting the city manager with authority to "supervise and control all administrative departments, agencies, offices, and employees."

Mann v. Lowry confirmed that the city manager is statutorily classified as an employee following a 1957 amendment. Maddox v. State articulated the criteria for an "office" (sovereign power, oath of office, formal commission, bond). The Arkansas Supreme Court has extended the incompatibility doctrine to a position that does not technically meet those criteria (Thompson v. Roberts), so the doctrine reaches the police-chief and acting-city-manager combination even if one or both positions are best understood as public employments rather than offices.

Common questions

Why doesn't the full-time requirement bar the police chief?

Because the full-time requirement applies only to "the city manager" appointed under § 14-47-119, not to an "acting city manager" appointed under the separate provision in § 14-47-121. The legislature could have applied the requirement to acting city managers and chose not to.

What about the supervisory conflict?

That is the incompatibility-doctrine concern. If the city's ordinance gives the city manager authority to supervise the police chief, and one person holds both positions, that person would in effect be supervising himself, creating exactly the inherent conflict the doctrine guards against.

What if the city has not enacted such an ordinance?

Then § 14-47-120's specific supervisory authority does not apply, and the incompatibility doctrine's primary trigger drops out. The opinion did not address this scenario directly but flagged the supervisory ordinance as the operative fact.

Does the doctrine apply to part-time, interim service?

Yes, Thompson v. Roberts applied incompatibility to a part-time bookkeeping role. The doctrine is about conflict of duties, not full-time status.

What's the practical solution if the police chief can't act as city manager?

The city would need to appoint a different acting city manager, or restructure supervisory authority through ordinance. Local counsel is best positioned to advise on the specifics.

Citations

• Ark. Code Ann. § 14-47-119 (city manager appointment, qualifications, full-time requirement)
• Ark. Code Ann. § 14-47-120(1)(A) (supervisory authority by ordinance)
• Ark. Code Ann. § 14-47-121 (acting city manager appointment)
• Tappan v. Helena Fed. Savings & Loan Assn., 193 Ark. 1023, 103 S.W.2d 458 (1937) (incompatibility doctrine)
• Thompson v. Roberts, 333 Ark. 544, 970 S.W.2d 239 (1998) (incompatibility applies to public employment)
• Maddox v. State, 220 Ark. 762, 249 S.W.2d 972 (1952) (criteria for an "office")
• Mann v. Lowry, 227 Ark. 1132, 303 S.W.2d 889 (1957) (city manager classified as employee post-1957)
• Eugene McQuillin, 3 The Law of Municipal Corporations § 12.67 (3d ed. 1990) (incompatibility framework)

Source

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

Original opinion text

Opinion No. 2015-076
September 10, 2015
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
The Honorable Stephanie Potter Black
Prosecuting Attorney
Eighth Judicial District - South
Miller County Courthouse
400 Laurel Street, Suite 6
Texarkana, AR 71854-5249
Dear Ms. Black:
This is in response to your request for an opinion on the following questions concerning Ark. Code Ann. §§ 14-47-119 and 14-47-121, which apply to cities organized under the city manager form of government:

Question 1: Can a police chief who is currently employed full time by the city also act as city manager?
Question 2: If the city manager is the supervisor of the Chief of Police, would there be a conflict of interest under Ark. Code Ann. § 14-47-120 that would prevent the Chief of Police from acting as the City Manager?

You offer the following background information: Arkansas Code Annotated § 14-47-119(b)(3) states, "During his or her employment, the city manager shall reside in the city and devote his or her full time to the business of the city." However, Ark. Code Ann. § 14-47-121 allows the Board of Directors or Mayor to appoint an acting city manager to serve until the city manager returns, until his or her disability or suspension ceases, or until another city manager is appointed and qualified, as the case may be. The statute that provides for an appointment of an acting city manager does not state that the acting city manager [must] devote his full time to the position.

RESPONSE

It is my opinion with regard to your first question that a police chief's inability to devote his full time to city business would not prevent him from being appointed acting city manager. As explained below in response to your second question, however, I believe one person's dual service as chief of police and acting city manager would nevertheless be barred by the common law incompatibility doctrine if in fact the police chief is supervised by the city manager pursuant to local ordinance.

Question 1: Can a police chief who is currently employed full time by the city also act as city manager?

I take it that this question is asked in light of the requirement under Ark. Code Ann. § 14-47-119(b)(3) that "the city manager shall ... devote his or her full time to the business of the city": the concern being that a chief of police will obviously have other duties and thus cannot meet this requirement if appointed as acting city manager.

In my opinion, the "full time" requirement under § 14-47-119(b)(3) applies to "the city manager" who is employed by the board of directors, who must have "special qualifications" to manage the city's affairs, whose "salary" is set by the board, and who must furnish a board-approved fidelity bond. These provisions are directed to "the city manager" whose employment is governed by § 14-47-119. As you have noted, the separate statute that provides for the appointment of an "acting city manager", Ark. Code Ann. § 14-47-121, contains no "full time" requirement. (However, § 14-47-121 contains other employment-related provisions, which illustrate that the requirements for "the city manager" in § 14-47-119(b) do not apply to the "acting city manager.") Had the legislature intended to impose the "full time" requirement for an acting city manager, it could easily have done so.

It is therefore my opinion in response to your first question that a police chief's inability to devote his full time to city business would not prevent him from being appointed acting city manager. As explained in response to your second question, however, I believe his dual service in these two positions may nevertheless be barred by the common law incompatibility doctrine.

Question 2: If the city manager is the supervisor of the Chief of Police, would there be a conflict of interest under Ark. Code Ann. § 14-47-120 that would prevent the Chief of Police from acting as the City Manager?

Arkansas Code § 14-47-120 authorizes the city board to enact an ordinance vesting the city manager with authority to "supervise and control all administrative departments, agencies, offices, and employees." If, as your question indicates, such an ordinance has been enacted and the city manager supervises the chief of police pursuant thereto, then I believe an issue arises under the so-called "incompatibility doctrine."

This common-law doctrine applies when the holding of two occupations simultaneously would generate an inherent conflict that necessarily precludes one person serving in both capacities. As described by the Arkansas Supreme Court, the "inconsistency, which at common law makes offices incompatible" exists in situations when "one is subordinate to the other, and subject in some degree to the supervisory power of its incumbent, or where the incumbent of one office has the power to remove the incumbent of the other or to audit the accounts of the other." The Court in Thompson v. Roberts further expounded upon the incompatibility doctrine by observing: One commentator has explained, "Incompatibility arises, therefore, from the nature of the duties of the offices, when there is an inconsistency in the functions of the two, where the functions of the two are inherently inconsistent or repugnant, as where the antagonism would result in the attempt by one person to discharge the duties of both offices, or where the nature and duties of the two offices are such as to render it improper from considerations of public policy for one person to retain both."

Notwithstanding the term "offices" in these excerpts, the Court in Thompson held that the dual service of a mayor as part-time bookkeeper for a city of the second class violates the doctrine of incompatibility. Thus, while it is probably accurate to say the doctrine ordinarily applies to the concurrent holding of two offices, I believe it can apply as well to the simultaneous holding of an office and a public employment.

Turning to your question, then, if in fact the city manager is charged by ordinance with the power and duty to supervise the chief of police, it seems clear those two positions are incompatible as a matter of law under the above doctrine. The inherent conflict of interest in that case prevents one person from serving as both city manager and chief of police. And because an acting city manager presumably exercises the powers and duties of the city manager, the same conflict arises between the position of police chief and that of acting city manager.

I thus conclude that one person's dual service as chief of police and acting city manager would be barred by the common law incompatibility doctrine in circumstances where the city manager has been charged by ordinance with supervising the chief of police.

Sincerely,
LESLIE RUTLEDGE
Attorney General