Can a city police officer in Arkansas run for and hold an elected county office?

Plain-English summary

Representative Bob Ballinger asked whether a city police officer can run for and hold an elected county office consistent with the Arkansas Constitution. The AG said yes, with one important caveat about future appointments.

Article 7, Section 53 (added by Amendment 95 in 2016) prohibits people elected or appointed to ten enumerated county offices (county judge, justice of the peace, sheriff, circuit clerk, county clerk, assessor, coroner, treasurer, surveyor, collector) from being appointed or elected to "any civil office in this state" during their county-office term. The key word is during. The provision applies prospectively to the county officeholder. It does not bar someone who already holds a city civil office from being elected to a county office.

A city police officer is a "civil officer" under prior AG opinions, but Article 7, Section 53 does not work in reverse. So a city cop can run for county sheriff, win, and continue serving in both roles. What the cop cannot do, after winning the county office, is be appointed to a different civil office during the county-office term.

The AG also addressed several other constitutional doctrines and concluded none of them barred the dual service: separation of powers (Art. 4, § 2) does not apply across different levels of government per Murphy v. Townsend; the dual-office prohibition in Art. 19, § 6 applies to state and certain county officials, not city police; and the common-law incompatibility-of-offices doctrine usually requires one office to be subordinate to the other, which is not generally the case here.

The AG attached and republished Op. Att'y Gen. 2017-028, the office's earlier explanation of what counts as a "civil office" for Article 7, Section 53 purposes.

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.

What Article 7, Section 53 actually does

Amendment 95, ratified in November 2016, added a new section to Article 7 that 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.

The structure of the prohibition matters:

• It applies only to people elected or appointed to one of the ten listed county offices.
• It activates during the term for which they have been elected.
• It bars new civil-office appointments or elections.

It does not bar someone from running for one of the listed offices while holding another civil office. And it does not strip the new county officeholder of the civil office he held before being elected. So a city cop can be elected sheriff and keep being a city cop. He just cannot be appointed to (say) a state board during his sheriff term.

The AG explicitly relied on three additional points to confirm dual-office service was permissible:

1. Statutory protection of candidacy. Ark. Code Ann. § 21-1-207 says no government employee shall be deprived of the right to run for elective office, except as required by federal law. Populist Party v. Chesterfield and Fisher v. Taylor have long held Arkansas protects the right to be a candidate.

2. Separation of powers does not apply across government levels. Murphy v. Townsend held that Art. 4, § 2's separation-of-powers doctrine governs separation between branches within the state government, not between state, county, and city. Holding a city office and a county office does not collide with separation of powers.

3. Article 19, § 6 dual-office prohibition does not reach city police officers. Art. 19, § 6 bars one person from holding more than one office in the same department. The AG read this as applying to state officials and some county officials, not city police officers, citing Marshall v. Holland.

One civil-service-commission caveat. The AG noted that Ark. Code Ann. § 14-51-303 requires civil service commissions to promulgate rules governing political activities of police personnel. Any rule that purported to ban candidacy outright would violate § 21-1-207, but more limited restrictions (campaign-during-work-hours rules, for instance) might survive depending on the specific facts.

What "civil office" means (from the attached 2017-028 enclosure)

The AG attached its earlier Op. Att'y Gen. 2017-028 explaining how to tell whether a particular position counts as a "civil office" for purposes of Article 7, Section 53. The framework draws on a long line of cases interpreting the parallel Article 5, Section 10 prohibition on legislators holding civil offices.

The Arkansas Supreme Court's working definition: "A civil office is a grant and possession of the sovereign power" (Wood v. Miller (1922), citing the Iowa Supreme Court). Or: "an office created by civil law within one of the only three branches of government" (Harvey v. Ridgeway).

Indicia the Court looks for:

• A continuing duty defined by rules prescribed by the government (not by contract).
• Tenure, compensation, and duties usually fixed by law.
• Taking of an oath of office.
• Receipt of a formal commission.
• Giving of a bond.

No single factor is conclusive. The Court has held the following are civil offices for parallel-prohibition purposes: deputy prosecuting attorney (Martindale v. Honey), school director (Williams v. Douglas), state pardons-and-paroles board member (Starnes v. Sadler), county election commissioner (Jones v. Duckett), state sovereignty commission member (Smith v. Faubus), mayor (Collins v. McClendon), drainage improvement district commissioner (Op. Att'y Gen. 2015-142). It has held the following are not: delegate to a constitutional convention (Harvey v. Ridgeway, because not within a branch of state government), auditor for a burial association board (Haynes v. Riales).

Statutory ex officio service is not always a separate office. Sparling v. Refunding Board (1934) held that membership on a board composed of named state officers (Governor, Lieutenant Governor, Treasurer, etc.) was not "additional office" but the imposition of "additional duties" on the existing offices. The AG used this to explain why a county clerk's statutory service as secretary of the county equalization board likely is not a separate civil office, just added duties.

Common questions

I'm a city cop. Can I run for sheriff in 2026?
Under Arkansas law as the AG read it in 2018, yes, nothing in the constitution prevents you from running. Check current civil-service-commission rules for your city for any candidacy restrictions, but those cannot prohibit candidacy outright.

If I win, do I have to quit my city job?
Not under the constitution. The AG specifically addressed this: Article 7, Section 53 does not strip you of the city office you held before the election. You may face practical issues (work schedule, supervisor approval, civil-service rules), but those are policy questions, not constitutional ones.

What about being a sheriff and a school board member at the same time?
That gets harder. School board members have been held to be civil officers for parallel-prohibition purposes (Williams v. Douglas). If you became a school board member after being elected sheriff, that would likely violate Article 7, Section 53.

Why does the AG say the county clerk's role on the equalization board is not a "civil office"?
Because the legislature added that duty to the existing county clerk position rather than creating a new office with separate tenure, compensation, and duties. Under Sparling v. Refunding Board, that's an "additional duty," not an "additional office."

What about local cities or districts that have boards I'm asked to serve on?
The AG declined to opine on each case in 2017-028 because each requires individual fact-finding about the position. A county or city attorney should review each board on its own facts.

Background and statutory framework

Amendment 95 (ratified November 2016) was the largest single set of structural changes to the Arkansas Constitution in a generation. Among other things, it modernized term limits and added Article 7, Section 53. The provision tracks the long-standing Article 5, Section 10 prohibition on sitting legislators holding civil offices, and the AG read both provisions to share the same "civil office" definition.

The two key earlier prohibitions:

• Art. 5, § 10: "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."
• Art. 7, § 53: same structure, applied to ten county offices.

Note the preposition difference ("under this State" vs "in this state"). The AG treated this as a distinction without a difference: a civil office "in" the state is necessarily one "under" state law, because state-law origins are what give the position its sovereign character.

Citations

• Ark. Const., amend. 95 (ratified Nov. 2016)
• Ark. Const., art. 7, § 53
• Ark. Const., art. 5, § 10
• Ark. Const., art. 4, § 2 (separation of powers)
• Ark. Const., art. 19, § 6 (dual office prohibition)
• Ark. Code Ann. § 21-1-207 (right to run for office)
• Ark. Code Ann. § 14-51-303 (civil service rules on police political activity)
• Ark. Code Ann. § 25-16-702 (AG as attorney for state agencies)
• Murphy v. Townsend, 72 Ark. 180, 79 S.W. 782 (1904)
• Marshall v. Holland, 168 Ark. 449, 270 S.W. 609 (1925)
• Byrd v. State, 240 Ark. 743, 402 S.W.2d 121 (1966) (incompatibility doctrine)
• Wood v. Miller, 154 Ark. 318, 242 S.W. 573 (1922) (civil office definition)
• State Bd. of Workforce Educ. v. King, 336 Ark. 409, 985 S.W.2d 731 (1999)
• Sparling v. Refunding Board, 189 Ark. 189, 71 S.W.2d 182 (1934)

Source

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

Original opinion text

Opinion No. 2018-014
March 1, 2018
The Honorable Bob Ballinger
State Representative
508 Dr. Spurlin Circle
Berryville, AR 72616-3825

Dear Representative Ballinger:

This is in response to your request for my opinion on the following question concerning a city police officer:

Would it violate the Arkansas Constitution for a city police officer to run for, or hold, an elected county position?

RESPONSE

In my opinion, it would not violate the Arkansas Constitution for a city police officer to run for and hold an elected county position. No provision of the constitution would prohibit him from running for a county office. And if he is successfully elected to the county office, no provision of the constitution would prohibit him from continuing to serve in the police officer position that he held prior to the election.

Nevertheless, the constitution may restrict the police officer from holding certain other positions if he is elected to county office. If the county position is one covered by Article 7, section 53 of the Arkansas Constitution, the police officer would be barred, during his county-office term, from being appointed or elected to a different "civil office in this state." But Article 7, section 53 would not prevent him from continuing to serve in the city police officer role he held prior to being elected to the county office.

DISCUSSION

Your question may be prompted by the recently adopted Article 7, section 53 of the Arkansas Constitution. In November 2016, Arkansas voters adopted Amendment 95, which amended several articles of the state constitution. Of potential relevance to this opinion, it 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.

It is likely that a city police officer holds a "civil office." But Article 7, section 53 does not render a civil officer ineligible for elected county office. Rather, this provision bars sitting county officers from being appointed or elected to a new civil office. It does not bar a city office-holder from running for and serving in one of the listed county offices. And Article 7, section 53 will not prevent a city police officer from continuing to serve in the police officer position that he held prior to the election, even if he is successfully elected to the county office.

Nor, in my opinion, does any other constitutional provision preclude a city police officer from running for and holding an elected county office. The "separation of powers" doctrine, embodied in Article 4, section 2 of the Arkansas Constitution, prohibits an official serving in one department of government from exercising any power reserved for another department. But the Arkansas Supreme Court has made clear that this doctrine does not apply to offices held at different levels of government.

[A footnote here addresses Ark. Code Ann. § 14-51-303, which requires civil service commissions to promulgate rules and regulations governing the political activities of police personnel. The opinion notes a policy that purported to prohibit candidacy outright would violate § 21-1-207, but other restrictions might survive on specific facts.]

[Another footnote notes that Article 7, section 53 would bar the police officer's appointment to a different "civil office in this state" after his successful election to one of the county offices listed in that provision, and refers to Op. Att'y Gen. 2017-028 for the discussion of what constitutes a "civil office in this state."]

[A further footnote addresses Article 19, section 6 of the Arkansas Constitution, which prohibits an individual from simultaneously holding more than one office in a single department of government, noting it applies to State officials and some county officials but not city police officers, citing Marshall v. Holland, 168 Ark. 449, 270 S.W. 609 (1925).]

[Another footnote addresses the incompatibility-of-offices doctrine: this doctrine is generally implicated where one office is subordinate to the other and subject in some degree to the supervisory power of its incumbent (Tappan v. Helena Fed. Sav. & Loan Assoc., 193 Ark. 1023, 104 S.W.2d 458 (1937)), and the usual factors are not immediately apparent in the case of a city police officer serving as an elected county official.]

CONCLUSION

It is therefore my opinion, in response to your specific question, that it would not violate the Arkansas Constitution for a city police officer to run for and hold an elected county position.

Sincerely,

LESLIE RUTLEDGE
Attorney General

Enclosure (Op. Att'y Gen. 2017-028, attached, addressing the meaning of "civil office in this state" for purposes of Article 7, Section 53. The enclosed opinion declined to opine on whether each of 23 specific boards or commissions is a civil office, instead laying out the controlling framework drawn from cases interpreting the parallel Article 5, Section 10 prohibition on sitting legislators holding civil offices.)