Do members of Arkansas rural water boards, sewer-facility boards, airport commissions, the Fire Protection Service Board, county hospital boards, county or district boards of health, and levee boards hold a 'civil office' that would block sitting county elected officials or legislators from serving?

Plain-English summary

Representative Lanny Fite asked Attorney General Leslie Rutledge whether eight categories of state and local board membership counted as a "civil office" under either Article 5, section 10 (which bars sitting legislators from holding civil office) or Article 7, section 53 (which does the same for ten enumerated county elected officials, added by Amendment 95 in 2016).

The categories were: rural/regional/water-user boards; waterworks and public sewers boards; airport commissions; the Arkansas Fire Protection Service Board; the Southwest Mental Health Board; county hospital boards; county or district boards of health; and levee boards or levee improvement district boards.

The AG answered yes for seven of the eight. Each of those board memberships had the markers of a "civil office": creation by statute, statutorily defined powers and duties, set compensation (or absence thereof), terms of office, and meaningful exercise of sovereign power, including the power of eminent domain (water boards, sewer boards, municipal airport commissions), the power to issue bonds and lend money, and the authority to adopt regulations and orders. Several positions also required an oath of office.

The eighth, the Southwest Mental Health Board, the AG could not analyze. She could not locate any state statutes governing such a board. Without statutes establishing the board's powers, duties, compensation, or terms of office, the standard "civil office" analysis had nothing to work with.

The practical effect was that Arkansas legislators and the ten county officials covered by Amendment 95 (county judge, justice of the peace, sheriff, circuit clerk, county clerk, assessor, coroner, treasurer, surveyor, and tax collector) could not also be appointed or elected to these local boards during their terms.

Currency note

This opinion was issued in 2018. 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

The "civil office" analysis under Article 5, section 10 and Article 7, section 53 looks for a cluster of features: creation by statute, an oath of office, defined powers and duties, compensation (or its absence by statute), a fixed term of office, and the exercise of sovereign or governmental power independent of any other office held by the appointee. The AG had previously laid out the framework in Op. Att'y Gen. 2017-028 (covering the legislator restriction) and Op. Att'y Gen. 2017-104 (extending it to county officials under Amendment 95).

Each of the seven boards she analyzed in this opinion satisfied multiple factors:

• Water boards (rural water, regional water, water user): created under section 14-238-108(a); members serve fixed terms with statutory duties (§ 14-238-111(a)) and must take an oath (§ 14-238-108(c)); members may exercise eminent domain (§ 14-238-112(c)) and have authority to issue bonds (§ 14-238-113(a)).

• Public sewers facilities boards: created by section 14-137-107(a); members have wide-ranging duties (§ 14-137-111), including authority to "do any and all . . . things necessary or convenient" to accomplish their purposes; they have power of eminent domain (§ 14-137-112(c)), the power to lend and invest money (§ 14-137-111(10)), and the power to issue bonds (§ 14-137-115(a)).

• Airport commissions (county and municipal): created by sections 14-357-102(a) and 14-359-105; commissioners have continuous authority to manage, operate, improve, extend, and maintain the airport (§§ 14-357-105(a)(1), 14-359-109(a)(1)), and municipal commissioners can exercise eminent domain (§ 14-359-112) and issue bonds (§ 14-359-111(a)).

• Arkansas Fire Protection Service Board: created by section 20-22-803(a); members have authority to prescribe minimum certification standards for fire departments (§ 20-22-804(a)(1)) and serve fixed terms (§ 20-22-803(a)(4)).

• County hospital boards: created by section 14-263-103(a); members manage, control, and supervise county hospital operations and may "make regulations, employ personnel, and prescribe any and all requirements and other matters pertaining to the operation of the hospital" (§§ 14-263-105(b)-(c)).

• County and district boards of health: created under sections 14-262-113(b)(1) and 14-262-113(c)(1); members provide offices, determine general policies, issue orders, and adopt rules and regulations (§ 14-262-115(a)).

• Levee boards / levee improvement district boards: created under section 14-123-301(a); members have "exclusive control and supervision of the levees in their district" and authority to "make all necessary rules for [the levees'] protection" (§ 14-123-308). Members are entitled to up to $50 per day for attending meetings (§ 14-123-316(a)).

What was missing for the Southwest Mental Health Board

The AG could not find any state statute establishing a "Southwest Mental Health Board." Without statutory text, she could not point to powers, duties, compensation, or term-of-office provisions, and the civil-office analysis depends on those statutory features. The opinion's response was effectively "I cannot opine," not "no." If the requester or a researcher located a governing statute or regulation, the same analysis could be applied to it.

Common questions

Why does it matter whether a position is a "civil office"?

Because Articles 5 and 7 of the Arkansas Constitution bar sitting legislators and ten county elected officials from holding any "civil office" during their term. If a board seat is a civil office, a sitting county judge or state senator cannot accept appointment to it without resigning the underlying office.

Could a county judge resign and then take a board seat?

The opinion did not address timing. Article 7, section 53 prohibits appointment "during the term for which he or she has been elected." Whether a resignation and immediate reappointment to a barred civil office cures the prohibition has been the subject of separate Arkansas case law and other AG opinions; this opinion did not analyze that.

What about ex officio or non-voting service?

The opinion examined only formal board membership as established by the cited statutes. Ex officio or advisory roles that do not include voting, decision-making, or sovereign powers can fall on the "additional duties" side of the line, as Op. Att'y Gen. 2017-104 illustrated for the Intergovernmental Cooperation Councils and Electronic Recording Commission. Each role would need its own analysis.

Did this opinion say anything about appointed-versus-elected positions?

The "civil office" analysis applies to both. What matters is whether the position has the statutory features of an office (creation, term, duties, sovereign power), not whether it is filled by election or appointment.

Why did the levee-board members' $50 per diem matter?

Compensation, whether substantial or nominal, is one of several markers of a civil office. A statute that sets a per diem for service tends to weigh in favor of finding a civil office, because the legislature treated the position as one warranting public payment. It is not, by itself, dispositive.

Citations

Ark. Const. amend. 95, § 6 (codified at Ark. Const. art. 7, § 53); Ark. Const. art. 5, § 10. Water boards: Ark. Code Ann. §§ 14-238-108(a), (b), (c), (e); 14-238-111(a); 14-238-112(c); 14-238-113(a). Public sewers facilities boards: §§ 14-137-107(a); 14-137-108(a), (a)(4), (a)(6); 14-137-111; 14-137-111(10); 14-137-112(c); 14-137-115(a). Airport commissions: §§ 14-357-102(a), (b), (e); 14-357-104; 14-357-105(a)(1); 14-359-105(b), (c); 14-359-107; 14-359-109(a)(1); 14-359-111(a); 14-359-112. Arkansas Fire Protection Service Board: §§ 20-22-803(a), (a)(4), (d); 20-22-804(a)(1). County hospital boards: §§ 14-263-103(a); 14-263-104(b), (e); 14-263-105(b), (c). Boards of health: §§ 14-262-113(b)(1), (c)(1); 14-262-114(b)(5); 14-262-115(a); 14-162-113. Levee boards: §§ 14-123-301(a); 14-123-306(b); 14-123-308; 14-123-316(a). Op. Att'y Gen. 2017-028.

Source

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

Original opinion text

Opinion No. 2017-116
August 1, 2018
The Honorable Lanny Fite
State Representative
3324 Highway 5
Benton, AR 72019-1883
Dear Representative Fite:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
This is in response to your request for an opinion on whether certain positions in State and local government would be considered civil offices under Arkansas Constitution Article 5, § 10, and Article 7, § 53.
The positions you have asked about are listed below:

1. Members of rural water boards or regional water boards or water users boards
2. Members of waterworks and public sewers facilities boards
3. Members of airport commissions
4. Members of the Arkansas Fire Protection Service Board
5. Members of the Southwest Mental Health Board
6. Members of county hospital boards
7. Members of county or district boards of health
8. Members of levee boards or levee improvement districts

RESPONSE
You have asked whether the positions set out above are "considered 'civil offices' under Article 5, section 10 and Article 7, section 53" of the Arkansas Constitution. It is my opinion that all but one of the boards and commissions you have listed are likely "civil offices" for purposes of Article 5, section 10 and Article 7, section 53. I lack sufficient information regarding the "Southwest Mental Health Board;" neither can I find any state statutes governing such a board. Therefore, I am unable to opine as to whether this board constitutes a "civil office" for purposes of Article 5, section 10 or Article 7, section 53.

DISCUSSION
In November 2016, Arkansas voters adopted Amendment 95, which amended several articles of the state constitution. Of relevance to this opinion, Amendment 95 amended Article 7 to add a new section—section 53—concerning county elected officials, which reads:
A person elected or appointed to any of the following county offices shall not, during the term for which he or she has been elected, be appointed or elected to any civil office in this state:
(1) County judge;
(2) Justice of the peace;
(3) Sheriff;
(4) Circuit clerk;
(5) County clerk;
(6) Assessor;
(7) Coroner;
(8) Treasurer;
(9) County surveyor; or
(10) Collector of taxes.
This amendment is very similar to a long-existing constitutional provision, Article 5, section 10, regarding sitting members of the General Assembly:
No Senator or Representative shall, during the term for which he shall have been elected, be appointed or elected to any civil office under this State.
In order to determine whether a particular position falls within Article 7, section 53's proscription for elected county officials, the key consideration is whether the position qualifies as a "civil office." I have previously addressed the prevailing law on what constitutes a "civil office" in the context of a similar and long-standing constitutional prohibition placed on sitting legislators. And I have opined that this corpus of law should be equally applicable to the provisions of Article 7, section 53. I will not restate the analysis here, but instead refer you to my previous opinion for a review of the criteria and factors for identifying a "civil office."

DISCUSSION
Question 1: Would a court likely determine that members of rural water boards or regional water boards or water users boards ("Water Boards"), hold a "civil office" under Arkansas Constitution Article 5, § 10 and Article 7, § 53?
Question 2: Would a court likely determine that members of waterworks and public sewers facilities boards ("Public Facilities Boards"), hold a "civil office" under Arkansas Constitution Article 5, § 10 and Article 7, § 53?
Question 3: Would a court likely determine that members of airport commissions hold a "civil office" under Arkansas Constitution Article 5, § 10 and Article 7, § 53?
Question 4: Would a court likely determine that members of the Arkansas Fire Protection Service Board hold a "civil office" under Arkansas Constitution Article 5, § 10 and Article 7, § 53?

The answer to your first four questions is "yes," in my opinion. The first four board and commission members about which you ask likely hold a "civil office" pursuant to both Article 5, section 10 and Article 7, section 53. Because the reasoning on which I base my opinion applies to each of these offices, I will address them together.

Each of the above-mentioned positions is created by law. The Code likewise establishes the powers and duties of each position, sets the compensation—or lack thereof—for each position, and establishes the terms of office. And in order to serve, members of the Water Boards, Public Facilities Boards, and Airport Commissions must take an oath of office.

Furthermore, each of these positions exercises some sort of sovereign power. Members of Water Boards, Public Facilities Boards, and Municipal Airport Commissions are all authorized to exercise the power of eminent domain. And finally, each of these is given specific, statutory powers with respect to managing and lending money, and issuing bonds.

It is thus my opinion that members of these boards and commissions likely hold a "civil office" under Arkansas Constitution Article 5, section 10 and Article 7, section 53.

Question 5: Would a court likely determine that members of the Southwest Mental Health Board hold a "civil office" under Arkansas Constitution Article 5, § 10 and Article 7, § 53?

Because there is no legislation regarding "Southwest Mental Health," I am unable to opine as to whether it is a "civil office" for purposes of Article 5, section 10 or Article 7, section 53.

Question 6: Would a court likely determine that members of county hospital boards hold a "civil office" under Arkansas Constitution Article 5, § 10 and Article 7, § 53?
Question 7: Would a court likely determine that members of county or district boards of health hold a "civil office" under Arkansas Constitution Article 5, § 10 and Article 7, § 53?
Question 8: Would a court likely determine that members of a levee board or levee improvement district board hold a "civil office" under Arkansas Constitution Article 5, § 10 and Article 7, § 53?

The answer to your last three questions is "yes," in my opinion. Each of these board members about which you ask likely hold a "civil office" pursuant to both Article 5, section 10 and Article 7, section 53. Because the reasoning on which I base my opinion applies to each of these offices, I will address them together.

Each of the above-mentioned positions is created by law. The Code likewise establishes the powers and duties of each position, sets the compensation—or lack thereof—for each, and establishes the terms of office. Furthermore, members of each of these boards are assigned specific powers and duties by law, which go beyond the scope of an advisory role. Such powers include the power to establish rules and regulations and the power to issue orders and exercise exclusive control and supervision.

Accordingly, it is my opinion that these offices likely are "civil offices" pursuant to Article 5, section 10 and Article 7, section 53.

Sincerely,

LESLIE RUTLEDGE
Attorney General