Can the Arkansas General Assembly regulate or amend a county sheriff's contract for jail commissary services?

Plain-English summary

Senator John Cooper asked the Attorney General whether the Arkansas General Assembly could regulate or amend contracts entered into between a county sheriff (whom Senator Cooper described as a "constitutional officer") and another entity concerning jail commissary operations. The question rested on a premise: that the sheriff has authority to enter into such contracts.

Attorney General Leslie Rutledge's response addressed both the underlying premise and the broader question. On the premise, the AG corrected it. A sheriff cannot unilaterally enter into a contract concerning commissary services at the jail. With the limited exception of contracts of employment within the sheriff's department itself, sheriffs cannot contract on behalf of the county. The power to contract for the county sits with the county judge, as the county's chief executive officer under Amendment 55 to the Arkansas Constitution. Several prior AG opinions had reached the same conclusion across various sheriff-contracting scenarios (inmate telephones in 2006-124, hot-check collection in 97-039, vehicle purchases from tax collector commissions in 93-049).

On the broader question, the AG concluded that the General Assembly has the absolute power to legislate unless prohibited by the constitution. So the General Assembly could enact procedural laws affecting jail-commissary contracts. Two constitutional limits would apply: the Contracts Clauses of the U.S. and Arkansas Constitutions (which prohibit laws impairing the obligation of contracts), and the county judge's constitutional authority under Amendment 55 to contract on behalf of the county. The opinion noted that current Arkansas law on prisoner commissary services focuses on revenues: commissary profits and prisoner telephone commissions go to a county sheriff's office fund, deposited with the county treasurer, but not subject to quorum court appropriation.

The AG declined to opine more concretely without reference to a specific contract or proposed legislation, treating that level of detail as a fact-specific inquiry beyond an AG opinion's scope.

Currency note

This opinion was issued in 2019. 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 county government operates under Amendment 55 to the state constitution, which establishes the county judge as the county's chief executive officer. The implementing statutes at Ark. Code Ann. § 14-14-1101 et seq. spell out specific powers, including:

• The county judge's authority "to enter into necessary contracts or other agreements to obligate county funds and to approve expenditure of county funds appropriated therefor in the manner provided by law" (§ 14-14-1102(b)(2)(C)(ii)).
• The county judge's responsibility "for the employment of the necessary personnel or for the purchase of labor or services performed by individuals or firms employed by the county or an agency thereof" (§ 14-14-1102(b)(5)(A)).
• A narrow exception: "[t]he jurisdiction to purchase the labor of an individual for salary or wages employed by other elected officials of the county shall be vested in each respective elected official" (§ 14-14-1102(b)(5)(B)(ii)(b)): meaning the sheriff hires deputies, not the county judge.

Beyond that intra-department employment exception, the sheriff lacks unilateral authority to bind the county. The county judge does the contracting.

For the prisoner commissary side, Arkansas law concentrates on revenue handling. Section 12-41-105 directs that "[c]ommissions derived from prisoner telephone services and profits earned from prisoner commissary services" must be deposited with the county treasurer and credited to a "county sheriff's office fund." Section 12-41-105(a)(2)(B) provides that this fund "is not subject to an appropriation by the quorum court or the county claims process." Section 21-6-307(b)(2)(A) establishes a "communications facility and equipment fund" combining these revenues. The sheriff has discretion to spend from that fund without quorum court appropriation, because the funds are not paid out of the county treasury (per Mackey v. McDonald and prior AG opinions).

Constitutional limits on legislative regulation

The opinion identifies two relevant constitutional dimensions:

1. The Contracts Clauses. U.S. Const. art. 1, § 10 and Ark. Const. art. 2, § 17 prohibit the passing of laws that impair the obligation of contracts. Whether a particular statute impairs a particular contract is a fact-intensive inquiry, citing Equipment Mfrs. Inst. v. Janklow as the analytical framework. The AG could not assess the question in the abstract.

2. Amendment 55 county judge authority. The county judge's constitutional authority to contract on behalf of the county would be "an important consideration when crafting any such legislation." The General Assembly cannot legislate around that constitutional allocation of executive authority within the county.

Common questions

Can a sheriff sign a jail commissary contract on behalf of the county?

Generally, no. Outside of internal employment of deputies, sheriffs do not have authority to bind the county to contracts. The county judge does, under Amendment 55 and Ark. Code Ann. § 14-14-1102(b)(2)(C)(ii). Multiple prior AG opinions (2006-124, 97-039, 93-049) reach the same conclusion in related contexts.

Where does jail commissary money go in Arkansas?

Under Ark. Code Ann. § 12-41-105, profits from prisoner commissary services and commissions from prisoner telephone services are deposited with the county treasurer and credited to a county sheriff's office fund. That fund is not subject to quorum court appropriation. The funds combine into a "communications facility and equipment fund" under Ark. Code Ann. § 21-6-307(b)(2)(A).

Can the General Assembly regulate jail commissary contracts?

The opinion concluded yes, in principle. The General Assembly has plenary legislative authority unless constitutionally limited. Procedural rules for contracting are within that authority. Substantive interference with existing contracts could run into the Contracts Clauses.

What kinds of bidding rules apply to county contracts?

Ark. Code Ann. § 19-11-801 et seq. governs negotiations for professional services contracts. Ark. Code Ann. § 14-22-101 et seq. governs bidding procedures for commodities and other non-professional services contracts. The county judge must comply with the applicable procedure when contracting.

Why did the AG decline to give a more concrete answer?

The opinion needed a specific contract and a specific proposed bill to analyze the Contracts Clause question concretely. That kind of fact-specific analysis is beyond an AG opinion's scope.

Citations

Ark. Code Ann. §§ 12-41-105, 14-14-1101(a)(2), 14-14-1102(b), 14-22-101 et seq., 19-11-801 et seq., 21-6-307(b)(2)(A); Arkansas Constitution amend. 55, art. 1, § 10, art. 2, § 17, art. 16, § 12; Black v. Cockrill, 239 Ark. 367 (1965); Equipment Mfrs. Inst. v. Janklow, 300 F.3d 842 (8th Cir. 2002); Mackey v. McDonald, 255 Ark. 978, 501 S.W.2d 726 (1974); prior AG opinions 2006-124, 97-039, 93-049, 2003-012, 2003-074.

Source

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

Original opinion text

Opinion No. 2018-105
January 3, 2019
The Honorable John Cooper
State Senator
62 CR 396
Jonesboro, AR 72401
Dear Senator Cooper:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

This is in response to your request for an opinion "concerning whether the state may lawfully regulate a contract entered into between a county sheriff, [who is] a constitutional officer, and another entity that concerns the operation of the county jail's commissary." You ask, specifically:

Are there any constitutional or other legal issues that would prohibit the General Assembly from regulating or otherwise amending these contracts by statute?

RESPONSE

It is impossible to thoroughly address your question in the abstract without reference to a specific contract and particular proposed legislation. The General Assembly, of course, has the absolute power to legislate, unless prohibited from doing so by the constitution, either expressly or by necessary implication.

As an initial matter, however, the question's underlying premise appears to be mistaken. A sheriff cannot unilaterally enter into a contract concerning commissary services at the jail. With the exception of contracts of employment within the sheriff's department itself, a sheriff cannot, on his own authority, contract on behalf of the county. The power to contract for the county instead resides with the county judge.

Additionally, I cannot satisfactorily identify the general law that might be applicable to your question without reference to some specific proposed regulation or legislative amendment. As noted above, the county judge is the official authorized to enter into contracts on behalf of the county. This authority, which specifically extends to employing personnel or purchasing labor or services, is exercised by the county judge as the county's chief executive under Amendment 55 to the Arkansas Constitution. Notwithstanding a county judge's constitutional authority in this regard, he must comply with applicable laws governing the procedures for entering into contracts. Generally speaking, therefore, the General Assembly could enact laws that affect the procedures that must be followed when entering contracts concerning the operation of a jail's commissary. But the county judge's constitutional authority to contract on behalf of the county would be an important consideration when crafting any such legislation.

Because your question is premised upon the existence of a contract concerning jail-commissary operations, other federal and state constitutional provisions could potentially come into play. The United States Constitution and the Arkansas Constitution prohibit the passing of laws that impair the "obligation of contracts." The test to determine if a statute violates either "contracts clause" is a factually intensive inquiry that requires construction of the contracts at issue. I consequently cannot undertake any meaningful analysis of the contract clauses in the abstract.

Current law with respect to "prisoner commissary services" focuses on revenues deriving from such services, and how those revenues are accounted for and allocated. The law provides that telephone commissions and commissary profits must be deposited with the county treasurer and credited to "the county sheriff's office fund":

Commissions derived from prisoner telephone services and profits earned from prisoner commissary services provided in the various county and regional detention facilities in the state shall be deposited with the county treasurer of the county in which the detention facility is located, and the county treasurer shall credit the funds to the county sheriff's office fund.

The transfer of funds to the "county sheriff's office fund" and the fund itself "are not subject to an appropriation by the quorum court or the county claims process." The commissions and profits that comprise the fund are combined into a special fund called the "communications facility and equipment fund." The sheriff also has discretion to make expenditures from the communications facility and equipment fund without appropriation by the quorum court because expenditures from this fund do not constitute expenditures from the county treasury.

This is the only state law currently in place that specifically addresses a county jail's commissary. I can speculate that the General Assembly might amend these provisions and thereby possibly impact a commissary's operations. But I cannot opine further in this regard absent reference to any specific legislative proposal.

While I cannot definitively answer your question, the foregoing will hopefully be of assistance in identifying the relevant general guiding principles.

Sincerely,
LESLIE RUTLEDGE
Attorney General