Can someone who isn't already on a police force take an Arkansas civil service exam for a supervisory opening?

Plain-English summary

Representative Dwight Tosh asked whether Arkansas law lets non-members of a police department sit for the civil service promotional exam that fills a supervisory vacancy. The AG answered: state law permits it, but does not require it. Whether outside applicants can compete depends on the rules adopted by each city's civil service commission.

The legal foundation is Ark. Code Ann. § 14-51-301, which directs civil service commissions to write rules governing appointments and promotions in city police and fire departments. The Arkansas Supreme Court has read that statute (and its predecessor) twice: once in 1983 and once in 1997. Both readings turn on the same point. The statute carefully distinguishes "appointments" (hiring from outside) from "promotions" (advancing within the ranks). Because of that distinction, the requirement that a person serve at least one year in a lower rank before being eligible for promotion does not block outside applicants from competing for supervisory openings.

In short, the one-year-in-grade rule applies to officers being promoted from within. Cities are free, as a matter of local civil service rules, either to open supervisory exams to qualified outsiders or to keep them in-house. The AG offered no further guidance because no specific city's rules were attached to the question.

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.

Background and statutory framework

Arkansas grants cities of the first class authority to establish civil service commissions for police and fire under Ark. Code Ann. § 14-51-102. Once created, the commission must write rules under § 14-51-301 covering: applicant qualifications; open competitive examinations; public advertisement of exams in a local newspaper at least 10 days in advance; eligibility lists in rank order from exam scoring; and the one-year-in-grade requirement for promotions absent an emergency.

Two Arkansas Supreme Court cases shape the AG's reading. In Amason v. City of El Dorado, 281 Ark. 50 (1983), the court rejected the argument that vacancies must be filled by promoting from within. The justices read the statute's distinction between "promoted" and "appointed" personnel as preserving outside hiring as a normal option. In Burcham v. City of Van Buren, 330 Ark. 451 (1997), the court held the publication-in-newspaper requirement of § 14-51-301(b)(3)(A) applies only to appointments (outside hiring), not to promotions of existing officers. The publication mandate exists to reach outside applicants; if a promotion exam is closed to insiders only, posting on the bulletin board is enough.

Common questions

Does Arkansas law require police promotions to come from within the department?
No. The Arkansas Supreme Court rejected that reading in Amason. The one-year-in-grade rule applies only when an officer is being advanced from a lower rank, not when filling a vacancy generally.

If an outside officer wants to take a promotional exam in another city, what determines whether they can?
The city's civil service commission rules. State law lets the commission decide; outside applicants are neither barred nor required to be considered.

Why does the statute split appointments from promotions?
At the time of this opinion, the AG's reading was that the legislature wrote different procedural tracks for different situations. Appointments (outside hires) get the public-advertisement requirement so the broader pool gets notice. Promotions (advancement of existing officers) need less public notice because the candidate pool is internal.

Did the AG decide which procedure should apply in a particular city?
No. Because no specific city's commission rules were before the AG, the opinion was limited to the statutory framework. The AG advised that the question would ultimately turn on the local rules.

Source

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

Original opinion text

Opinion No. 2017-072
November 2, 2017
The Honorable Dwight Tosh
State Representative
4513 Butler Road
Jonesboro, AR 72404-8829
Dear Representative Tosh:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

I am writing in response to your request for an official opinion from this Office concerning the following question, which I have paraphrased slightly:

Under Arkansas law, are non-members of a police department eligible to take a Civil Service promotional exam for vacant supervisory positions within a police department?

I must note that I have not been provided any background information or any particular city's civil service commission's rules that may have prompted your question. Accordingly, my response must necessarily be limited to expounding on the state law relevant to your question as I understand it.

RESPONSE

I take your question to be asking whether state law permits a city's civil service commission to allow qualified law-enforcement officers who are not employed by that city's police department to stand for examination so as to be considered for appointment to a vacant supervisory position. Viewed in this light, the answer is "yes," in my opinion. But state law does not require civil service commissions to consider outside applicants for such vacancies. If authorized by the commission's rules, such vacancies may be filled from applicants solely from within the existing ranks. In short, a city's civil service commission's rules would ultimately determine the answer in a given situation.

DISCUSSION

State law grants cities of the first class the authority to establish civil service commissions for their police and fire departments. Once a city establishes a civil service commission, the governing statute, Ark. Code Ann. § 14-51-301 (Supp. 2015), requires the commission to promulgate and enforce "rules and regulations governing the fire and police departments of their respective cities." This Code section states, in pertinent part, that a commission must establish rules regarding appointments to a police or fire department, and for promotions within those ranks:

(b) These rules shall provide for:
(1)(A) The qualifications of each applicant for appointment to any position on the police or fire department.
(2)(A) Open competitive examinations to test the relative fitness of applicants for the positions.
(3)(A) Public advertisement of all examinations by publication of notice in some newspaper having a bona fide circulation in the city and by posting of notice at the city hall at least ten (10) days before the date of the examinations.
(4)(A)(i)(a) The creation and maintenance of current eligibles lists for each rank of employment in the departments, in which shall be entered the names of the successful candidates in the order of their standing in the examination. However, for ranks in each department where there may not be openings during the effective period of a list, the board may establish rules to create the eligibles list on an as-needed basis.
(ii)(a) A person is not eligible for examination for advancement from a lower rank to a higher rank until that person has served at least one (1) year in the lower rank, except in case of emergency, which emergency shall be decided by the board. The board shall determine the rank or ranks eligible to be examined for advancement to the higher rank.

The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary meaning and usually accepted meaning in common language. The courts construe a statute so that no word is left void, superfluous, or insignificant; and meaning and effect are given to every word in the statute if possible.

The Arkansas Supreme Court has considered Ark. Code Ann. § 14-51-301 as it relates to your question. In Amason v. City of El Dorado, the Court considered the case of a city's filling the position of chief of police with an applicant hired from without the department. Applicants from within the department argued, in part, that state law requires that, outside an emergency situation that was not at issue in that case, "vacancies must be filled by promoting personnel within the department who have served at least one year in a lower rank and who qualify through competitive examination." The Court rejected that argument, stating that the "requirement that a person serve at least one year in a lower rank before becoming eligible for promotion expressly applies to advancement, and we find nothing in the act suggesting that vacancies must be filled only by an advancement of personnel through the ranks." The Court further stated that if the plaintiffs' argument were correct, then:

[N]o one would be eligible for an opening unless he had served a year at a lower rank, meaning that no one could be hired from outside the ranks other than in an emergency. We must reject that interpretation, not only because it is implausible, but because the statutes clearly contemplate otherwise by making a distinction between persons who are promoted and those who are appointed.

Thus, we see that the Court, in interpreting the statute that would later become Ark. Code Ann. § 14-51-301, rejected the notion that the law requires applicants for ranking (and presumably supervisory) positions with a police department come only from within the department's existing ranks.

In Burcham v. City of Van Buren, the Court similarly noted the distinction in section 14-51-301 between appointments (hiring applicants from outside the existing police force) and promotions. That case involved the failure to promote a Van Buren police department patrolman. One of the patrolman's arguments was that the city's civil service commission failed to advertise in the local newspaper the notice for examinations pursuant to section 14-51-301(b)(3)(A).

In rejecting the patrolman's argument, the Court agreed with the trial court's finding that the publication requirements set out in section 14-51-301(b)(3)(A) "only apply to appointments and not to promotions." The Court continued:

Burcham focuses on the words "all examinations" in § 14-51-301(b)(3), in arguing his case, but in doing so, he disregards the preceding subsections which refer only to applicants for appointment as opposed to applicants for promotion ....

We conclude that the more reasonable interpretation in the instant case is to look to the context of the statute and to the fact that in subsections (b)(1)(A), (b)(1)(B)(i), and (b)(1)(B)(ii) of § 14-51-301, the sole focus is on appointments. The publication requirement then follows in subsection (b)(3)(B). Precise reference in the statute to advancement within the ranks or promotions is not made until subsection (b)(4)(A) which is after the publication requirement. At that point, the statute shifts its focus from appointments to requirements for promotions.

Moreover, the purpose of the statutory requirement for publication of examination dates is to ensure that all potential applicants are notified. If the only pool of potential applicants are those already on the police force, it is entirely reasonable to post test dates on the troop bulletin board at the Department. There is little need to advertise to the public at large through a local newspaper when the purpose of the examination is only to decide promotion of current police officers to a higher rank. Indeed, it would be wasteful to do so. We will not give a statute an interpretation which is at odds with common sense.

Thus, the Court has made it clear that section 14-51-301 allows a city's civil service commission to distinguish by rule between applicants appointed from outside the city police department and applicants promoted from within. Accordingly, and in my opinion, if a civil service commission's rules permit it (and the proper publication notice is performed), an outside applicant may be considered for examination for a supervisory position within a police department. A given city's civil service commission's rules would have to be consulted.

Sincerely,

Attorney General