What must an Arkansas county quorum court appropriate for the coroner's office, can coroners join APERS, and can they be paid as independent contractors?

Plain-English summary

State Representative John T. Vines asked the AG six questions about Arkansas county coroners. The first four concerned what a county quorum court has to appropriate for the coroner's office; the fifth was about APERS retirement eligibility; the sixth asked whether a coroner could be paid as an independent contractor. Vines's questions came with a list of nine specific items he thought necessary for a coroner's office: transport vehicles, mortuary cots, body bags, personal protective equipment, a camera, office space, morgue or cooler arrangements, a cell phone, and toxicology supplies.

AG Leslie Rutledge gave three answers:

1. Appropriation (Questions 1-4): No Arkansas statute fixes specific items that must appear in a coroner's appropriation. The County Government Code (Ark. Code Ann. § 14-14-802(a)(5)) requires a county to provide for services prescribed by state law for performance by each elected county officer. Coroners' duties are prescribed in Ark. Code Ann. §§ 14-15-301 to -309: investigating deaths, issuing death certificates, securing pertinent records, taking toxicological samples, writing reports. Reimbursement for "expenses incurred in the conduct of official and nondiscretionary duties" must come from an appropriation for operating expenses (§ 14-14-1207(a)(1)).

What that appropriation must specifically contain is not laid out by statute. But the AG pointed to § 14-15-309(b), which lists items that coroners and the Arkansas Department of Human Services may include in mutual-aid agreements. Many items on Vines's list (transport equipment, body bags, PPE, etc.) appear in § 14-15-309. That parallel signals what the legislature contemplated as necessary for coroners' work. It is not a binding list. The quorum court has discretion; an aggrieved coroner who thinks the appropriation is unreasonable would have to take the matter to a trier of fact under Union County and Venhaus v. Adams.

2. APERS (Question 5): A coroner is entitled to membership in the Arkansas Public Employees Retirement System if (a) he works at least 80 hours per month during a 90-consecutive-day period, and (b) his rate of pay is at least the federal minimum wage. Both conditions come from Ark. Code Ann. § 24-4-101(17)(B), which excludes from APERS membership persons whose intent is to work less than 90 days, persons who work less than 80 hours/month, and persons whose pay is not "substantially gainful." The final determination of who is a "county employee" for APERS purposes is committed to the APERS Board of Trustees by § 24-4-101(14)(B).

3. Independent contractor (Question 6): Probably not. Coroners are elected constitutional officers (Ark. Const. art. 7, § 46), with statutory duties and a statutorily set salary range under Amendment 55 and § 14-14-1204. State law does not contemplate elected officers performing their duties under a contract. Helena-W Helena Sch. Dist. v. Fluker and City of Stuttgart v. Elms held that contracts altering an officer's statutorily fixed compensation are contrary to public policy and void. A county therefore cannot generally compensate a coroner as an independent contractor.

The AG noted that this last conclusion is qualified ("in all likelihood") because no controlling Arkansas authority squarely addresses coroners as contractors. But the structural argument from the elected-officer and fixed-salary framework was strong.

Currency note

This opinion was issued in 2016. 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.

The coroner duties statutes, the APERS eligibility thresholds, and the federal minimum wage have all moved since 2016. Anyone making current decisions about coroner appropriations or APERS eligibility should check current statutes and the federal minimum wage rate.

Background and statutory framework

The coroner is an elected constitutional officer

Ark. Const. art. 7, § 46 lists the coroner as one of several county officers elected by the people. Ark. Code Ann. § 14-14-1301(a)(9) (Repl. 2013) confirms the position's status. The coroner's salary is fixed by the quorum court within minimums and maximums set by Amendment 55 and Ark. Code Ann. § 14-14-1204.

What coroners do

The substantive duties come from Ark. Code Ann. §§ 14-15-301 to -309. Section 14-15-301 requires the coroner to "conduct an investigation concerning the circumstances surrounding the death of an individual and gather and review background information" when a death is reported. Reportable deaths under § 12-12-315(a)(1)(A)-(S) include apparent homicide, suicide, accidental death, and any death where the manner appears other than natural. Section 14-14-302(b)(2) gives the coroner subpoena power. Section 14-14-302(c)(1)-(2) authorizes the coroner to take toxicological samples. Section 14-15-303 makes the coroner responsible for executing the death certificate and releasing the body for final disposition (subject to medical examiner override under § 12-12-317(b)). Section 14-15-302(e)(1)-(2) requires a written report; homicide/suicide/accidental reports require additional specific information.

The coroner does not have criminal investigation responsibilities (§ 14-15-302(a)), but the coroner is required to assist law enforcement upon request.

Why no statute fixes specific appropriation items

The AG searched for a statute fixing what a quorum court must appropriate for the coroner and found none. Section 14-14-1207(a)(1) is the operative reimbursement statute: county and district officials are entitled to reimbursement of expenses incurred in the conduct of official duties under "an appropriation for the operating expenses of an office, function, or service." That covers the existence of an appropriation, but does not dictate its specific line items.

The AG contrasted this with § 21-6-305 (Repl. 2004), which expressly obligates the quorum court to appropriate funds for the county collector's automated record-keeping system. Some county offices have express appropriation mandates; the coroner does not. The AG also cited Campbell v. Arkansas State Hospital as an example of a court inferring an appropriation duty from a statutory framework that clearly assumed county responsibility. That kind of inferred duty exists for coroners too, just not at the line-item level.

The mutual-aid statute as a guidepost

Ark. Code Ann. § 14-15-309(b) authorizes coroners and the Arkansas Department of Human Services to enter mutual-aid agreements to share particular items: equipment for storing and transporting bodies, supplies for investigations, and so on. Many of the items on Vines's list appear in § 14-15-309. The AG read § 14-15-309 as legislative signaling: these are the kinds of items the General Assembly contemplated coroners would need. So while the quorum court is not bound to fund every item on Vines's list, the list overlapped substantially with statutory expectations.

Office space and § 14-14-1307(b)

The opinion handled "office space" carefully because of Ark. Code Ann. § 14-14-1307(b), which says a county is not required "to provide justices of the peace, constables, coroners, or surveyors with a formal office." The AG read that to mean no obligation to maintain a designated formal office, but not to bar office-related expenses. A coroner's investigation and reporting duties create real office-style overhead (death certificates, data, case management). The lack of a formal office obligation does not mean zero appropriation for office-related needs.

Why the quorum court has wide discretion

Under Ark. Code Ann. § 14-14-801(a), (b)(2) (Repl. 2013), the quorum court exercises local legislative authority and has the power to "appropriate public funds for the expenses of the county." The Arkansas Supreme Court accords "strong deference" to a quorum court's determinations under Venhaus v. Adams, 295 Ark. 606, 752 S.W.2d 20 (1988), quoting Union County v. Union County Election Commission, 274 Ark. 286, 623 S.W.2d 827 (1981) ("Appropriations made by the quorum court are presumed to be reasonable"). A county agency or official generally has to live within the appropriated amount unless it is unreasonable, in which case the official can file a claim seeking additional funding.

APERS eligibility specifics

Ark. Code Ann. § 24-4-302 requires counties to include in APERS membership employees as defined in § 24-4-101(14), (17), and (27). A coroner is an "elected officer whose compensation is paid by the county" under Ark. Const. art. 7, § 46 and Ark. Code Ann. § 14-14-1204(a), (j). That fits the "county employee" definition in § 24-4-101(14)(A) and the "employee" definition in § 24-4-101(17)(A)(i)(a). But subsection 24-4-101(17)(B) excludes from membership:

• Persons employed with the intent to work less than 90 calendar days (subsection (vii));
• Persons who work less than 80 hours per month over a 90-day period (subsection (viii));
• Persons whose rate of pay does not constitute "substantially gainful" employment, defined as below the federal minimum wage (subsection (ix)).

So even though § 24-4-301(d) (Repl. 2013) says all elected county constitutional officials "shall be or become members of [APERS]," the AG read this as constrained by the more specific § 24-4-101(17)(B) exclusions. A coroner working only part-time or for less than minimum-wage equivalent compensation does not qualify. The 80-hours-per-month and minimum-wage thresholds are the working test.

The final eligibility determination, in cases of doubt, rests with the APERS Board of Trustees under § 24-4-101(14)(B).

Why coroners cannot be paid as independent contractors

Coroners hold elective office (Ark. Const. art. 7, § 46). Their duties and salaries are set by statute. State law does not contemplate elective officers serving under contract. Helena-W Helena Sch. Dist. v. Fluker, 371 Ark. 574, 268 S.W.3d 879 (Ark. 2007), held that a county could not contract with an elected circuit clerk to pay overtime because "the clerk was an elected county officer with statutory duties and a fixed salary." City of Stuttgart v. Elms, 220 Ark. 722, 249 S.W.2d 829 (1952), had established the underlying public-policy rule that contracts altering officer compensation are void.

The AG flagged in footnote 25 that, regardless of independent-contractor question, the county cannot pay the coroner more or less than the statutory salary range. APERS membership turns on the 80-hours-and-minimum-wage thresholds, not on whether the coroner is paid as a contractor.

Common questions

Q: Does my county have to provide my coroner with body bags and a transport vehicle?
A: The quorum court must appropriate enough operating expenses for the coroner to perform statutory duties. Specific items are not statutorily mandated, but the mutual-aid statute (§ 14-15-309) lists items the General Assembly contemplated as appropriate. A coroner who cannot perform statutory duties because the appropriation is too low can challenge it as unreasonable.

Q: Does my county have to give the coroner a formal office?
A: No. Ark. Code Ann. § 14-14-1307(b) explicitly says counties are not required to provide a formal office for coroners. But that does not prohibit funding office-related expenses for the coroner's data management and reporting work.

Q: When can a coroner join APERS?
A: When the coroner works at least 80 hours per month during a 90-consecutive-day period and is paid at least the federal minimum wage. The APERS Board of Trustees makes the final eligibility call in cases of doubt.

Q: Can my county hire its coroner as an independent contractor to save money?
A: Likely not. Coroners are elected constitutional officers with statutory duties and a fixed salary range. Helena-W Helena Sch. Dist. v. Fluker and City of Stuttgart v. Elms held that contracts altering an officer's compensation are contrary to public policy and void.

Q: How does a coroner challenge an unreasonable appropriation?
A: Under Union County v. Union County Election Commission, the coroner can file a claim for further funding, which a trier of fact will review. Quorum court appropriations are presumed reasonable, so the coroner bears the burden.

Citations and references

Constitution:

• Ark. Const. art. 7, § 46
• Ark. Const. amend. 55

Statutes:

• Ark. Code Ann. § 12-12-315(a)(1)(A)-(S) (Repl. 2009), reportable deaths
• Ark. Code Ann. § 12-12-317(a), (b) (Repl. 2009), death certificate signing
• Ark. Code Ann. § 14-14-130(a)(9) (Repl. 2013), county officers list
• Ark. Code Ann. § 14-14-301, coroner duty to investigate
• Ark. Code Ann. § 14-14-302(b)(2), subpoena power; (c)(1), (c)(2), toxicological samples
• Ark. Code Ann. § 14-14-801(a), (b)(2) (Repl. 2013), quorum court powers
• Ark. Code Ann. § 14-14-802(a)(5) (Repl. 2013), county provision of services
• Ark. Code Ann. § 14-14-1204(a), (j), (j)(2) (Repl. 2013), coroner salary
• Ark. Code Ann. § 14-14-1207(a)(1) (Repl. 2015), reimbursement under operating-expense appropriations
• Ark. Code Ann. § 14-14-1307(b) (Repl. 2013), no formal office requirement
• Ark. Code Ann. §§ 14-15-301 to -309 (Repl. 2013), coroner duties
• Ark. Code Ann. § 14-15-302(e)(1), (e)(2), written report requirement
• Ark. Code Ann. § 14-15-303, death certificate
• Ark. Code Ann. § 14-15-309(b) (Repl. 2013), mutual-aid agreements
• Ark. Code Ann. § 21-6-305 (Repl. 2004), county collector record-keeping appropriation duty
• Ark. Code Ann. § 24-4-101(14), (17), (27) (Repl. 2014), APERS member definitions
• Ark. Code Ann. § 24-4-101(17)(B), exclusions
• Ark. Code Ann. § 24-4-301(d) (Repl. 2013), elected officer APERS membership
• Ark. Code Ann. § 24-4-302 (Repl. 2014), county participation in APERS

Cases:

• Campbell v. Arkansas State Hospital, 228 Ark. 205, 306 S.W.2d 313 (1957) (Ark. Sup. Ct.)
• Venhaus v. Adams, 295 Ark. 606, 752 S.W.2d 20 (1988) (Ark. Sup. Ct.)
• Union County v. Union County Election Commission, 274 Ark. 286, 623 S.W.2d 827 (1981) (Ark. Sup. Ct.)
• Helena-W Helena Sch. Dist. v. Fluker, 371 Ark. 574, 268 S.W.3d 879 (Ark. 2007) (Ark. Sup. Ct.)
• City of Stuttgart v. Elms, 220 Ark. 722, 249 S.W.2d 829 (1952) (Ark. Sup. Ct.)

Prior AG opinions:

• Op. Att'y Gen. 2012-003, 2009-093, 2009-050, 2006-187

Source

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

Original opinion text

Opinion No. 2016-030
July 21, 2016

The Honorable John T. Vines
State Representative
123 Market Street
Hot Springs, AR 71901-5308

Dear Representative Vines:

This is in response to your request for my opinion on several questions concerning coroners. Several of the questions center on a coroner's duties and the equipment necessary for a coroner to fulfill the statutorily mandated requirements of that office. As background for your questions, you have enumerated the following list of items that you say "are impliedly and/or explicitly required for a coroner in upholding his or her statutory obligations":

1. Transport (Cargo Vans, Pick-up trucks with campers, or SUV (Suburbans)). Something that is long enough for first call cots. Blue lights and siren included; a radio will be required to communicate with dispatch and possibly law enforcement during transport;
2. Cots (Mortuary cots, at least 2);
3. Body Bags, white sheets, paper bags to cover hands and feet;
4. Personal Protective Equipment (PPE) (gloves, aprons, Tyvek suits, masks, safety goggles, rubber boots);
5. Camera (Digital point and shoot camera, along with card, card reader and batteries);
6. Office Space. The Office of the Coroner has a duty to complete death certificates, manage data and caseloads for coroner's required reports. Therefore, each county should have an official coroner's office where he or she can conduct daily required duties. The county should afford space separate from the funeral home of the elected official if he or she is an owner of a funeral home. Each office should have their own computer system where the office can keep track of coroner cases. This not only assists the coroner, but also eases the transition from one coroner to the next and assures a place to maintain records. These are public records and are the property of the county, not the coroner. It is vitally important that the county have control of the records to include where and how these records are created, completed, stored and accessed;
7. Morgue. Each county should have its own morgue. If not, then an agreement should be made with local hospitals or funeral home for use of coolers;
8. County-issued cell phone or reimbursement for work use of cell phone;
9. Toxicology Supplies (Spinal needles, and Blood/Vitreous needles, vacutainers, syringes).

With this background in mind, you ask:

1. Per the Arkansas Code Annotated and any relevant Attorney General opinions, what must a quorum court provide for in the appropriation for the office of coroner? Must the quorum court provide for Items 1-9?

2. Per the Arkansas Code Annotated and any relevant Attorney General opinions, what is necessary to perform the statutorily mandated duties? Are Items 1-9 necessary?

3. Per the Arkansas Code Annotated and any relevant Attorney General opinions, are there any specific requirements in the sections of the Arkansas Code Annotated?

4. Per the Arkansas Code Annotated and any relevant Attorney General opinions, what transportation, equipment, office space, cooler storage is necessary?

5. Are coroners entitled to APERS according to Attorney General Opinion No. 2006-187, if a coroner can demonstrate that he or she works as a coroner for more than 80 hours per month for the required 90 day minimum? What is the threshold at which APERS will be triggered?

6. Can coroners be compensated as independent contractors? Can coroners, in light of the minimum and maximum salary under Amendment 55 and Ark. Code Ann. § 14-14-1204, be paid as independent contractors?

RESPONSE

With regard to Questions 1 through 4, the relevant statutes do not fix the necessary expenses incidental to the proper performance of coroners' duties. I believe a statute regarding certain mutual aid agreements among coroners is an indication of what expenditures are necessary for the county to fulfill its obligation to provide for the services that state law requires of coroners. But it is the role of the quorum court to appropriate sufficient amounts to cover expenses incurred by the coroner in the performance of the official duties of that office. Any alleged insufficiency in the appropriation will need to be reviewed by a trier of fact. In response to Question 5, a coroner will be entitled to membership in the Arkansas Public Employees Retirement System (APERS) if he can demonstrate that: 1) he works at least 80 hours per month during a 90 consecutive-day period and 2) his rate of pay is not less than the federal minimum wage. I have found no controlling authority on your last question, but I believe it is clear that state law generally does not contemplate coroners performing their duties under a contract.

DISCUSSION

Question 1: Per the Arkansas Code Annotated and any relevant Attorney General opinions, what must a quorum court provide for in the appropriation for the office of coroner? Must the quorum court provide for Items 1-9?

Question 2: Per the Arkansas Code Annotated and any relevant Attorney General opinions, what is necessary to perform the statutorily mandated duties? Are Items 1-9 necessary?

Question 3: Per the Arkansas Code Annotated and any relevant Attorney General opinions, are there any specific requirements in the sections of the Arkansas Code Annotated?

Question 4: Per the Arkansas Code Annotated and any relevant Attorney General opinions, what transportation, equipment, office space, cooler storage is necessary?

I will respond to these questions together because the applicable analysis and conclusions are the same.

The County Government Code provides in pertinent part:

A county government, acting through the county quorum court, shall provide, through ordinance, for the following necessary services for its citizens:

All other services prescribed by state law for performance by each of the elected county officers or departments of county government.

The coroner is an elected constitutional officer whose duties are prescribed by state law. The bulk of the services prescribed by law for performance by the coroner, i.e., the "necessary services" of that office, are found at Ark. Code Ann. §§ 14-15-301 to -309 (Repl. 2013). Most significant for purposes of your questions are the coroner's duties to conduct an investigation into, and report on, the cause and manner of death when he receives a report of a death:

When a death is reported to the coroner, he or she shall conduct an investigation concerning the circumstances surrounding the death of an individual and gather and review background information, including, but not limited to, medical information and any other information which may be helpful in determining the cause and manner of death.

Certain deaths must be reported to the coroner, prosecuting attorney, and either the sheriff or the chief of police where the death occurred. The circumstances include apparent homicide, suicide, accidental death, or whenever the manner of death appears to be other than natural.

The coroner is authorized to issue subpoenas to secure pertinent records and relevant testimony in determining the cause and manner of death. He is also authorized to take toxicological samples from the body. When the coroner conducts the investigation, he is responsible for executing a death certificate and releasing the body for final disposition. A written report of the investigation must also be completed. If the death was a homicide, suicide, or an accident, the report must include certain specific information, including the location of the body, photographs, and the body's disposition.

State law, therefore, clearly assigns to the county coroner the responsibility to investigate and report on the cause and manner of death in certain circumstances. Additionally, although a coroner's investigation does not include criminal investigation responsibilities, the coroner is required to assist law enforcement upon request.

These necessary services must be adequately funded. This funding obligation includes reimbursing coroners for expenses they undoubtedly incur in discharging these necessary services. In this regard, a provision of the County Government Code states that reimbursement is to be provided under an appropriation for "operating expenses":

All county and district officials and authorized deputies or employees are entitled to receive reimbursement of expenses incurred in the conduct of official and nondiscretionary duties under an appropriation for the operating expenses of an office, function, or service. Reimbursement of expenses incurred in the performance of discretionary functions and services may be permitted when authorized by a specific appropriation of the quorum court.

A coroner's operating expenses are not fixed by state law. Nor does any statute fix the expenses of any function or service provided by the coroner. In the absence of a statute fixing expenses, I cannot identify particular expenses that must be included in an appropriation for a coroner's operating expenses. I believe questions as to specific expenses must be addressed instead by the quorum court and analyzed based on an assessment of the coroner's specific statutory duties.

I do note that many of the items you have enumerated in the background for your questions are also identified in Ark. Code Ann. § 14-15-309 as the types of items that coroners and the Arkansas Department of Human Services may enter mutual aid agreements to provide. And consequently, that provision seems to indicate that those are the types of items the General Assembly contemplated would generally be available to coroners. Thus, although it does not fix the items as specific expenses that must be included in a coroner's operating expenses, it is an indication of what expenditures are necessary for the county to fulfill its obligation to provide for the services that state law requires of coroners.

With regard to "office space" (an item included in both section 14-15-309 and your list) it is also necessary to mention Ark. Code Ann. § 14-14-1307(b) (Repl. 2013). Under that provision, a county is not required "to provide justices of the peace, constables, coroners, or surveyors with a formal office." While it is, therefore, clear that a county is not obliged to provide the coroner with a "formal office," I do not read into this statute any suggestion that a coroner does not incur office expenses in the course of performing the various duties of that office. To the contrary, the coroner's investigation and reporting requirements undoubtedly entail data management and other office-related functions for which expenses are incurred.

Question 5: Are coroners entitled to APERS according to Attorney General Opinion No. 2006-187, if a coroner can demonstrate that he or she works as a coroner for more than 80 hours per month for the required 90 day minimum? What is the threshold at which APERS will be triggered?

Counties are required to include in the membership of APERS "their employees, as defined in [Ark. Code Ann.] § 24-4-101(14), (17), and (27)." As an elected officer whose compensation is paid by the county, a coroner will fall within the definition of "county employee" and "employee" under section 24-4-101(14) and (17), respectively, if two conditions are met: (1) The coroner must work at least 80 hours per month during a 90 consecutive-day period, and (2) his rate of pay must not be less than the federal minimum wage. These two conditions are included in section 24-4-101(17), wherein it specifically excludes from the definition of "employee" the following:

(vii) Persons employed with the intent of working less than ninety (90) calendar days;
(viii) Persons who are employed for a period of more than ninety (90) consecutive calendar days but who do not qualify as full-time employees shall be excluded from membership. A person shall be considered a full-time employee if that person works at least eighty (80) hours per month during a period of ninety (90) consecutive calendar days;
(ix)(a)(1) Persons whose rate of pay does not constitute employment that is substantially gainful shall be excluded from membership.
(2) A rate of pay less than the federal minimum wage for the year shall not be considered employment that is substantially gainful.

It should also be noted that Ark. Code Ann. § 24-4-101 commits the final decision as to who is a "county employee" for purposes of APERS eligibility to APERS's Board of Trustees.

Question 6: Can coroners be compensated as independent contractors? Can coroners, in light of the minimum and maximum salary under Amendment 55 and Ark. Code Ann. § 14-14-1204, be paid as independent contractors?

Coroners hold elective office. And their duties and salaries are set by statute. State law, therefore, does not contemplate coroners serving under a contract. Accordingly, although I have found no controlling authority on point, it is my opinion that a county in all likelihood cannot compensate a coroner as an independent contractor.

I should emphasize that regardless of whether a county can, as a general proposition, establish an independent contractor relationship with a coroner, there is no question that the county cannot pay the coroner more or less than the salary fixed by law. Cf. Helena-W Helena Sch. Dist. v. Fluker, 371 Ark. 574, 579-80, 268 S.W.3d 879, 883-84 (Ark. 2007) (observing that the county could not legally contract with the circuit clerk to pay overtime because "the clerk was an elected county officer with statutory duties and a fixed salary," stating: "This court has specifically held that even a contract to pay an officer more or less compensation than that fixed by law is contrary to public policy and void.") (citing City of Stuttgart v. Elms, 220 Ark. 722, 249 S.W.2d 829 (1952)). Additionally, as an officer whose compensation is paid by the county, a coroner's membership in APERS turns on the two conditions noted in response to Question 5 above, and not on whether the coroner might be paid as an independent contractor.

Sincerely,

LESLIE RUTLEDGE
Attorney General