Can the same person serve as both an Arkansas district court clerk and a city council member at the same time?

Plain-English summary

The City of Bull Shoals had a situation where its district court clerk had been elected to a seat on the city council. State Senator Scott Flippo asked the AG whether the clerk could lawfully hold both positions.

AG Leslie Rutledge concluded that, while no bright-line answer existed, a reviewing court most likely would not find a prohibition. The clerk would, however, have to recuse from any city council vote that fixed the district court clerk's salary.

The opinion walked through the three categories of dual-service conflicts that the Arkansas Supreme Court identified in Byrd v. State: (1) constitutional prohibitions, (2) statutory prohibitions, and (3) the common-law doctrine of incompatibility. The AG concluded none of them clearly barred the dual role, with the salary-recusal caveat as the one firm restriction.

Currency note

This opinion was issued in 2017. 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.

How the AG analyzed each conflict category

Constitutional separation-of-powers (art. 4, §§ 1-2). Inapplicable. Murphy v. Townsend (1904) and Peterson v. Culpepper (1906) limited that doctrine to State and certain county officers. Laman v. McCord observed that complete separation of powers "is not usually applied to municipal corporations." Beyond that, the AG concluded the clerk would not be exercising a power of one branch reserved to another.

Constitutional dual-office bar (art. 19, § 6). Inapplicable for the same reason. Peterson v. Culpepper (1906) and Marshall v. Holland (1925) confined art. 19, § 6 to State officials and some county officials.

Statutory bars.

• The only direct statutory rule on district court clerks and other employment was in Ark. Code Ann. § 16-10-208, which barred clerks from being members of the police department, marshal's office, or sheriff's office. City council was not on that list.
• The municipal contract-interest statute, Ark. Code Ann. § 14-42-107, bans council members from having a direct or indirect interest in contracts to furnish supplies or services to the city. Thompson v. Roberts, 333 Ark. 544 (1998), and Davis v. Doyle, 230 Ark. 421 (1959), applied this rule to council members holding municipal jobs, treating those jobs as services contracts.

The AG concluded the statute did not reach a district court clerk because the clerk is appointed by, and serves at the pleasure of, the district court judge. Neither the mayor nor the council had hire/fire/supervisory authority. Even where the city pays the clerk's salary, Carter v. Cash, 312 Ark. 41 (1993), made the right to control the activities of the worker (not who pays) the most important factor in deciding whether an "employment relationship" exists. AG Op. 2001-202 (which the AG found persuasive) had reached the same conclusion for municipal court clerks.

Common-law incompatibility doctrine. Tappan v. Helena Federal Savings & Loan (1937) defined incompatibility as existing where one office is subordinate to the other or has supervisory or audit power over the other. Thompson v. Roberts added that incompatibility arises from inherent inconsistency in the duties.

The AG found a possible common-law concern in one specific area: under Ark. Code Ann. § 16-17-211(b)(1), the city council generally fixes the district court clerk's salary. A clerk who served on the council voting on her own salary could be argued to have an inherent conflict. But there was "no clear case law on this point," and several factors weakened the argument:

• The city council as a body (not the individual member) sets the salary.
• The salary may be split with the county quorum court.
• Under § 16-17-211(b)(2), the county can assume the entire salary, which would attenuate or remove the conflict.

The AG recommended at minimum that the clerk recuse from voting on her own salary.

What this opinion does NOT decide

The AG explicitly noted that the individual facts surrounding any particular instance would need to be examined, and that fact-finding is beyond the scope of an AG opinion. The conclusion was a probabilistic forecast ("more likely than not"), not a guarantee.

Common questions

Why did the AG use such cautious language?
Dual-office issues turn on three doctrines plus the specific facts of who pays, who supervises, and who has audit power. AG opinions are advisory, and the AG cannot do the fact-finding a court would do. The AG's job here was to flag the framework and identify the salary-recusal issue, not pre-decide a removal action.

What's the practical risk if the clerk does serve on the council?
A challenger could file a quo warranto action arguing the clerk has forfeited one of the offices. Under the AG's reasoning, the challenge probably would fail unless the clerk participated in salary votes for the clerk position.

Could a city ordinance prohibit the dual role?
The opinion does not address that. Cities have ordinance-making power over municipal affairs that don't conflict with state law. A council could theoretically pass an ordinance regulating its own membership eligibility, subject to constitutional limits.

What counts as an "office" for incompatibility purposes?
Thompson v. Roberts held that the bookkeeper position there was not an "office" because it lacked the indicia of a public office. The AG noted the same likely applied between a city council member (clearly an office) and a district court clerk position.

Background and statutory framework

Arkansas case law splits dual-office conflicts into three buckets, set out in Byrd v. State, 240 Ark. 743 (1966): constitutional, statutory, and common-law. Each requires its own analysis, and a dual-service arrangement only fails if at least one bucket clearly bars it.

The mayor cases (Thompson v. Roberts, 333 Ark. 544; Davis v. Doyle, 230 Ark. 421) sit in the statutory bucket and read § 14-42-107 broadly to cover city employment contracts. The AG's distinguishing move was to put the district court clerk outside the statute by relying on the appointment / supervisory structure: judge appoints, judge supervises, judge can remove.

The salary statute, Ark. Code Ann. § 16-17-211, gives the council primary salary-setting authority but allows splitting between city and county. Under § 16-17-211(b)(2), the county can assume the whole salary, which would moot the recusal problem entirely.

Citations

• Ark. Code Ann. § 14-42-107 (council interest in city contracts)
• Ark. Code Ann. § 16-10-208 (clerk cannot also be in police/marshal/sheriff)
• Ark. Code Ann. § 16-17-211 (district court clerk salary funding)
• Ark. Const. art. 4, §§ 1-2 (separation of powers)
• Ark. Const. art. 19, § 6 (dual-office bar)
• Byrd v. State, 240 Ark. 743, 402 S.W.2d 121 (1966)
• Tappan v. Helena Fed. Savings & Loan Assn., 193 Ark. 1023, 103 S.W.2d 458 (1937)
• Thompson v. Roberts, 333 Ark. 544, 970 S.W.2d 239 (1998)
• Davis v. Doyle, 230 Ark. 421, 323 S.W.2d 202 (1959)
• Carter v. Cash, 312 Ark. 41, 847 S.W.2d 18 (1993)
• Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968)
• Murphy v. Townsend, 72 Ark. 180, 79 S.W. 782 (1904)
• Peterson v. Culpepper, 72 Ark. 230, 79 S.W. 783 (1906)
• Marshall v. Holland, 168 Ark. 449, 270 S.W. 609 (1925)
• Op. Att'y Gen. 2001-202 (municipal court clerks not city/county "employees")
• Op. Att'y Gen. 2014-064 (art. 19, § 6 limited to state and some county officials)
• Op. Att'y Gen. 2010-156 (separation-of-powers analysis)

Source

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

Original opinion text

Opinion No. 2016-106
February 21, 2017

The Honorable Scott Flippo
State Senator
P.O. Box 705
Bull Shoals, AR 71619

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Dear Senator Flippo:

This is in response to your request for an opinion on the following question:

Can a district court clerk also serve on the city council?

You state that this concerns the City of Bull Shoals. It is my understanding that the district court clerk in Bull Shoals was elected to a position on the city council. You relate that "there are concerns that this may be a conflict of interest," and there is uncertainty "whether a person can hold both positions at one time."

RESPONSE

While there is no bright-line "yes" or "no" answer to your question, in my opinion it is more likely than not that a reviewing court would find no prohibition against this dual service. But in all events, the clerk clearly would be required to recuse from fixing his own salary.

DISCUSSION

Your question must be analyzed under the body of law governing unlawful conflicts of interest arising from concurrent service in two positions. The Arkansas Supreme Court has identified three categories of such conflicts: constitutional prohibitions, statutory prohibitions, and common-law prohibitions (i.e., the common law "doctrine of incompatibility"). Byrd v. State, 240 Ark. 743, 402 S.W.2d 121 (1966).

1. Constitutional prohibitions

The "separation of powers" doctrine, embodied in Article 4, section 2, prohibits an official serving in one department of government from exercising any power reserved for another department. The referenced "departments" are listed in Article 4, section 1, which provides:

The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided a separate body of magistracy, to-wit: Those which are legislative, to one, those which are executive, to another, and those which are judicial, to another.

In my opinion, this doctrine is inapplicable to your question because it only applies to State officers and certain county officers. Murphy v. Townsend, 72 Ark. 180, 79 S.W. 782 (1904), Peterson v. Culpepper, 72 Ark. 230, 79 S.W. 783 (1906). The complete separation of powers doctrine "is not usually applied to municipal corporations and has never been regarded as fully appropriate in the performance of municipal functions ..." and "[i]t has not been the practice in Arkansas to separate these powers to any great degree." Laman v. McCord, 245 Ark. 401, 408, 432 S.W.2d 753, 757 (1968) (Fogleman, J., concurring) (citing McQuillin, Municipal Corporation, §§ 9.20, 10.3; 16 C.J.S. Constitutional Law § 106). In addition, the clerk, in my opinion, would not be "exercise[ing] any power" of one branch of government that would be prohibited to a member of another branch. Cf. Op. Att'y Gen. 2010-156 (citing State Bank v. Curran, 10 Ark. 142, 146 (1849)).

We can draw a similar conclusion with respect to the possible application of Article 19, section 6, which prohibits an individual from simultaneously holding more than one office in a single department of government. This constitutional provision also applies exclusively to State officials and some county officials. Peterson v. Culpepper, 72 Ark. 230, 79 S.W. 783 (1906); Marshall v. Holland, 168 Ark. 449, 270 S.W. 609 (1925); accord Op. Att'y Gen. 2014-064.

2. Statutory prohibitions

While my research has not found any direct statutory prohibitions against this particular dual service, the prohibition against a council member having an interest in contracts must be analyzed. The only direct statutory prohibition related to district court clerks and other employment is found in Ark. Code Ann. § 16-10-208 (Supp. 2015) ("The court clerk ... shall not be a member of the police department, marshal's office, or sheriff's office."). The contract-interest statute, Ark. Code Ann. § 14-42-107 (Repl. 2013), states in relevant part:

No alderman, council member, official, or municipal employee shall be interested, directly or indirectly, in the profits of any contract for furnishing supplies, equipment, or services to the municipality unless the governing body of the city has enacted an ordinance specifically permitting aldermen, council members, officials, or municipal employees to conduct business with the city and prescribing the extent of this authority.

Ark. Code Ann. § 14-42-107(b)(1) (emphasis added).

The Court has held that this statute applies to council members holding municipal jobs, which are contracts of employment. See Thompson v. Roberts, 333 Ark. 544, 970 S.W.2d 239 (1998) (holding that the mayor's job as a bookkeeper for the city was a prohibited interest in the profits of a services contract); Davis v. Doyle, 230 Ark. 421, 323 S.W.2d 202 (1959) (mayor also serving as manager of the municipal water and sewer system). But it does not follow that this statute would apply to a council member serving as the district court clerk. Unlike a city bookkeeper in Thompson or the manager of a city's water and sewer system in Davis, a district court clerk, even one whose salary is paid entirely by the city, is not necessarily an employee of the city for the purposes of this statute. This is because, as compared to the situations in Thompson and Davis, the clerk is appointed by and serves at the pleasure and direction of the district court judge. Neither the mayor nor the city council, as I understand it, has any supervisory authority over the clerk, including having no power to hire, fire, or direct the activities of the clerk.

Moreover, as one of my predecessors opined, in answering a question on whether municipal court clerks were considered city or county employees, "payment of salary alone does not equate to a finding of 'employment' by the entity paying the salary." Op. Att'y Gen. 2001-202. That opinion further stated that even if a city or county or some combination thereof paid the municipal court clerk's salary, that fact did not conclusively establish the clerk as an "employee" of that entity. The analysis relied upon (1) the fact that the municipal (now district) judge appointed the clerk, and (2) the Supreme Court's ruling in Carter v. Cash, 312 Ark. 41, 847 S.W.2d 18 (1993), for the proposition that the "most important factor in determining an employment relationship is the right to control the activities of the employee, not necessarily the payment of salary."

I find that opinion and its analysis persuasive. In my opinion, a reviewing court likely would find section 14-42-107 inapplicable here because it is highly unlikely that the district court clerk has a direct employment relationship with the city that would be sufficient to trigger this statutory prohibition.

3. Common-law incompatibility prohibition

The common-law doctrine of incompatibility 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." Tappan v. Helena Fed. Savings & Loan Assn., 193 Ark. 1023, 1024, 103 S.W.2d 458 (1937); accord Thompson, 333 Ark. 544, 970 S.W.2d 239.

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."

Thompson, 333 Ark. at 549, 970 S.W.2d at 241 (quoting Eugene McQuillin, 3 The Law of Municipal Corporations, § 12.67 (3d ed. 1990)).

The Court in Thompson ultimately held that the dual service of a mayor as part-time bookkeeper for a city of the second class violated this common-law doctrine of incompatibility. While the position of mayor is plainly an office, the position of bookkeeper did not meet the judicial criteria for an "office." In my opinion, the same comparison would apply in this instance between a city council member and a district court clerk. But the ruling in Thompson likely would not apply to your question because it is at the very least questionable for the purposes of this doctrine whether the clerk is working for the city or that there is an inherent inconsistency in the functions of the two positions.

One area of inquiry where a common-law conflict of interest might conceivably lie regards who fixes and pays the district court clerk's salary. State law generally gives that duty to the city council where the district court is located. Ark. Code Ann. § 16-17-211(b)(1). The clerk's salary, however, may be divided between the city and the county where the court is located, such that both the city council and the county quorum court would each have to appropriate funds for its share of the clerk's salary. Id. at § 16-17-211(b)(2). Under either subsection, if the city council has either the entire or even partial responsibility for fixing the clerk's salary, then it might be argued that the clerk's service as a council member creates a conflict of interest such that holding the two posts rises to an inherent repugnancy. But there is no clear case law on this point. Irrespective whether there is an invincible repugnancy in simultaneously holding the two positions, a decision only a court can make, at the very least the clerk would have to recuse from voting on his or her own salary.

A court might also find persuasive the fact that the city council as a body, and not the individual council member, fixes the clerk's salary. This fact may work to undermine any inherent repugnancy argument.

Finally, state law provides that the clerk's salary may be assumed in total by the county, whereby the county quorum court would have to approve the clerk's salary. Ark. Code Ann. § 16-17-211(b)(2). If the county bears the entire burden of the clerk's salary, then that conflict may be attenuated or removed altogether.

In summary, it is my opinion that a district court clerk's dual service as a city council member likely is permitted, provided that the clerk, in his capacity as council member, recuses from setting the district court clerk's salary. The individual facts surrounding a particular instance, however, would need to be determined and fully examined. Such fact-finding is beyond the scope of an Attorney General's opinion.

Sincerely,

LESLIE RUTLEDGE
Attorney General