Does Arkansas's Secretary of State have to follow the historic-sites contracting rules and get state approval before renovating the Capitol?

Plain-English summary

Secretary of State John Thurston was thinking about contracts for renovating the State Capitol Building and grounds. Arkansas has two parallel contracting frameworks for state construction projects: the standard public-works law (Ark. Code Ann. § 22-9-203) and a specialized historic-sites improvement scheme (§§ 22-9-208 through 22-9-211) for "recognized historic" sites and structures. Thurston wanted to know whether his office, as a constitutional officer rather than a "state agency," was exempt from the historic-sites laws.

AG Leslie Rutledge said no, with a narrow yes. The Secretary of State must follow the historic-sites improvement laws for Capitol contracting, but the "review and approval" requirement that ordinarily gates use of those special procedures does not apply to him.

The reasoning broke into three parts.

Part 1: Are the historic-sites laws applicable to the Secretary of State at all? The State Capitol Building and grounds are clearly "recognized historic site[s] or structure[s] owned by the state," and the statute applies to contracts for "altering, repairing, or renovation" of such sites where the estimated cost is $35,000 or more. The plain language of § 22-9-209(a) reaches such contracts entered into "between the state agency or taxing authority and any contractor." Reading the statute "just as it reads" (Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179; Weiss v. McFadden, 353 Ark. 868, 120 S.W.3d 545 (2003)), the term "state agency" must include the Secretary of State because the statute applies to any contracts for these properties owned by the state.

The Secretary cited Ark. Code Ann. § 19-11-203(13), which excludes "elected constitutional offices of the state" from the definition of "exempt agencies." But that statute is part of the Arkansas Procurement Law (§ 19-11-201 et seq.), not the historic-sites laws, and so does not apply.

Part 2: But does the 'review and approval' requirement apply? Section 22-9-208(a)(3) ordinarily requires the Chief Fiscal Officer of the State, the Building Authority Division, the Secretary of the Department of Transformation and Shared Services, and the Legislative Council to review and approve the use of the special historic-sites procedures on a project-by-project basis. The AG concluded this requirement does not apply to the Secretary of State for Capitol contracts.

Why not? Because Arkansas law specifically grants the Secretary autonomy over the Capitol. Section 22-3-202(a) makes the Secretary "the constituted and legal custodian of the State Capitol Building, [and] the grounds." Section 22-2-117(b) of the Building Authority Division Act says: "The Secretary of State shall remain as custodian of the State Capitol Building and the grounds … [and] shall have full responsibility for the maintenance, management, and operation of the building and its grounds … The Secretary of State shall not be accountable to the [Building Authority] division for such maintenance, management, and operation." That autonomy cannot be reconciled with a review-and-approval requirement that subordinates the Secretary's procedural choice to those very same entities. Under Comcast of Little Rock v. Bradshaw, 2011 Ark. 431, 385 S.W.3d 137, the general historic-sites statute "must yield to a specific statute involving a particular subject matter," namely, the Secretary's authority over the Capitol.

Part 3: What about the conflict provision in § 22-9-208(b)? Section 22-9-208(b) says that when there is a conflict between the historic-sites laws "and the provisions of any other act insofar as the restoration of historic structures is concerned," the historic-sites procedures govern. Doesn't that mean the review-and-approval requirement wins after all?

No. The conflict provision is a rule of priority for the special bidding and contractor compensation "procedures" set forth in §§ 22-9-208 through 22-9-211. Its purpose is to displace the general public-works bidding procedures for historic sites. The review-and-approval gate, which controls whether to use the special procedures, is not part of those procedures themselves. So § 22-9-208(b) does not pull the review-and-approval gate into the conflicts-and-priority analysis.

There was one related caveat the AG noted: § 22-9-210(b) requires the contracting agency to submit "recommendations for approval" to the Chief Fiscal Officer before a contract can be awarded. That approval requirement does conflict with the Secretary's autonomy. Under § 22-9-208(b), it governs anyway because it is part of the contracting procedures. So the Secretary still has to involve the CFO at the contract-award stage, just not at the should-we-use-historic-sites-procedures stage.

The opinion threads a careful path through the conflict between two statutory schemes. The Secretary is in the historic-sites system; he runs his own decision about whether to use it; but the CFO still has a hand in the actual contract award.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. The Transformation and Efficiencies Act of 2019 (Act 910) amended portions of these laws. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What does it mean for the Secretary of State to be exempt only from the 'review and approval' requirement?
The Secretary has to follow the substantive bidding and contracting procedures of the historic-sites laws when contracting for Capitol renovation work over $35,000. He does not have to get sign-off from the Chief Fiscal Officer, Building Authority Division, Secretary of the Department of Transformation and Shared Services, or Legislative Council on whether to use those procedures in the first place. He decides that himself.

Does the Secretary still have to get any approvals at all from the Chief Fiscal Officer?
Yes. Section 22-9-210(b) requires submission of "recommendations for approval" to the Chief Fiscal Officer before a contract can be awarded. The AG read that as part of the contracting procedures themselves, not the gateway review-and-approval requirement. So the CFO has a role at the award stage, even though he doesn't have a role at the procedure-selection stage.

Why did the AG read 'state agency' to include the Secretary of State?
Because the historic-sites statute applies broadly to "the state or an agency of the state" and to "the state agency or taxing authority" entering contracts for state-owned historic property. Reading "state agency" to exclude constitutional officers would create a gap that the statute's plain language did not contemplate. Standard rules of construction (just-as-it-reads, no strained construction) led the AG to include the Secretary in the term.

What is the 'historic sites' definition?
The statute references "historic sites and structures" and applies to contracts "for the altering, repairing, or renovation of a recognized historic site or structure owned by the state." The State Capitol and its grounds clearly qualify. The opinion did not provide a precise statutory definition; it relied on the obvious fact that the Capitol is a historic site.

What about other agencies that have constitutional autonomy over their facilities?
The opinion's reasoning was specific to the Secretary of State and the Capitol. The same conflict-of-statutes analysis could in principle reach other constitutional officers with statutory autonomy over specific facilities, but each would have to be evaluated individually based on its own enabling statutes.

Background and statutory framework

Arkansas's public-works law (Ark. Code Ann. § 22-9-203) requires competitive bidding on most state construction contracts over $35,000. The historic-sites improvement laws (§§ 22-9-208 through 22-9-211) carve out a separate procedure for contracts on "recognized historic" properties: contractors are selected based on "the lowest responsible bid price, the bidder's experience in like work, and the techniques he or she proposes to employ" (§ 22-9-208(a)(2)).

To prevent abuse of the special procedures, § 22-9-208(a)(3) requires multi-level approval before they can be used on a particular project. As of 2020, that meant approval from the Chief Fiscal Officer of the State, the Building Authority Division, the Secretary of the Department of Transformation and Shared Services, and the Legislative Council. (The text was amended by Act 910 of 2019, which renamed and reorganized some of these entities; see footnote 1 of the original opinion.)

Section 22-9-208(b) is the conflicts-of-statutes provision: when "any other act" conflicts with the historic-sites procedures, the historic-sites procedures govern. The AG's careful reading of that provision (procedures yes, gateway approvals no) is the technical move that does most of the work in this opinion.

The Secretary of State's statutory autonomy over the Capitol is rooted in Ark. Code Ann. § 22-3-202(a) and § 22-2-117(b), the latter being part of the Building Authority Division Act. Both make explicit that the Secretary is custodian of the building and grounds and is "not … accountable to the [Building Authority] division" for maintenance, management, and operation.

Op. Att'y Gen. 98-087 had previously noted that the historic-sites procedures are not mandatory on every historic project. The agency involved makes the initial determination about whether to use them.

Citations

Statutes:

• Ark. Code Ann. § 22-9-203 (Supp. 2017, as amended by Acts 422 and 612 of 2019) (public works law / standard competitive bidding)
• Ark. Code Ann. § 22-9-208 (Repl. 2016 and as amended by Act 910 of 2019, § 6240) (historic-sites improvement laws)
• Ark. Code Ann. § 22-9-208(a)(1) (recognition of historic-site improvement costs)
• Ark. Code Ann. § 22-9-208(a)(2) (bidding criteria for historic-site contracts)
• Ark. Code Ann. § 22-9-208(a)(3) (review-and-approval requirement)
• Ark. Code Ann. § 22-9-208(b) (conflicts-of-statutes provision)
• Ark. Code Ann. § 22-9-209 (Supp. 2017) (advertising)
• Ark. Code Ann. § 22-9-209(a) (general application)
• Ark. Code Ann. § 22-9-210 (Repl. 2016) (award of contracts)
• Ark. Code Ann. § 22-9-210(b) (CFO recommendation-for-approval requirement)
• Ark. Code Ann. § 22-9-211 (related provisions)
• Ark. Code Ann. § 22-3-202(a) (Repl. 2016) (Secretary of State as Capitol custodian)
• Ark. Code Ann. § 22-2-101 et seq. (Repl. 2016 and Supp. 2017) (Building Authority Division Act)
• Ark. Code Ann. § 22-2-117(b), (c) (Repl. 2016) (Secretary's autonomy over Capitol)
• Ark. Code Ann. § 22-3-501(4) (Repl. 2016) (Capitol Arts and Grounds Commission jurisdictional definition)
• Ark. Code Ann. § 19-11-201 et seq. (Repl. 2016 and Supp. 2017) (Arkansas Procurement Law)
• Ark. Code Ann. § 19-11-203(13) (Supp. 2017) ("exempt agencies" definition; not applicable here)

Cases:

• Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179 (statute construed by plain meaning)
• Weiss v. McFadden, 353 Ark. 868, 120 S.W.3d 545 (2003) (cardinal rule of statutory interpretation)
• Thompson v. Younts, 282 Ark. 524, 669 S.W.2d 471 (1984) (no strained construction)
• Green v. Mills, 339 Ark. 200, 4 S.W.3d 493 (1999) (read language in context of statute as a whole)
• Chism v. Phelps, 228 Ark. 936, 311 S.W.2d 297 (1958) (read each section in light of every other)
• Comcast of Little Rock, Inc. v. Bradshaw, 2011 Ark. 431, 385 S.W.3d 137 (general statute yields to specific)

Prior opinions referenced:

• Op. Att'y Gen. 2017-094 (public-works law applies broadly across state government)
• Op. Att'y Gen. 98-087 (historic-sites procedures not mandatory on every project)

Source

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

Original opinion text

Opinion No. 2019-046
September 1, 2020
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
The Honorable John Thurston
Secretary of State
Arkansas State Capitol, Room 256
Little Rock, AR 72201

Dear Secretary Thurston:

This is in response to your request for an opinion on the following question concerning the historic sites improvement laws codified at Ark. Code Ann. §§ 22-9-208 - 211 (Repl. 2016 and Supp. 2017):

Is the Secretary of State exempt from the provisions set forth in Ark. Code Ann. §§ 22-9-208 through 22-9-211 since the Secretary of State is a Constitutional office and not a "state agency"?

RESPONSE

It is my opinion that the Secretary of State is not exempt from these provisions, with the following exception. Ordinarily, the Chief Fiscal Officer of the State, the State Building Services Council, and the Legislative Council must review and approve the use of these historic site-bidding procedures on specific projects. In my opinion, this "review and approval" requirement does not apply to the Secretary of State.

DISCUSSION

I gather that your question anticipates the Secretary of State entering into contracts for the renovation of the State Capitol Building and/or its grounds. These sites presumably qualify as "historic sites or structures," the subject of the statutes you have cited. These statutes establish procedures for selecting a contractor when the project involves the restoration of state-owned historic properties:

A contract for the altering, repairing, or renovation of a recognized historic site or structure owned by the state or with title vested in the name of a state agency or of another taxing authority in which the estimated cost of the work equals or exceeds the sum of thirty-five thousand dollars ($35,000) shall not be entered into between the state agency or taxing authority and any contractor unless ….

By its plain language, this statute applies to contracts for the restoration of "recognized historic" properties that are "owned by the state." The statute must be construed "just as it reads," without restricting or expanding the plain meaning of its text. The State Capitol Building and its grounds undoubtedly qualify as such properties "owned by the state." Accordingly, based on established rules of statutory construction, the term "contract" here includes contracts that are entered into for the altering, repairing, or renovation of the State Capitol Building and/or its grounds. Because this would include contracts executed by the Secretary of State, the undefined term "state agency," as used here, must be understood to include the Secretary of State. To this extent, therefore, it is my opinion that the Secretary of State is not exempt from sections 22-9-208 through 22-9-211.

However, an important caveat attends this conclusion. The historic sites statutes require an assessment on a project-by-project basis regarding the use of the special bidding procedures they provide. The procedures only may be used "after review and approval by the Chief Fiscal Officer of the State, the Building Authority Division, the Secretary of the Department of Transformation and Shared Services, and the Legislative Council." This "review and approval" requirement appears inconsistent with the Secretary of State's role as "the constituted and legal custodian of the State Capitol Building, [and] the grounds …." The Secretary of State's powers and duties in this regard are specifically recognized in the Building Authority Division Act. That Act acknowledges the Secretary's responsibility for the Capitol's "maintenance, management, and operation":

The Secretary of State shall remain as custodian of the State Capitol Building and the grounds immediately surrounding the State Capitol Building upon which the State Capitol Building is located. The Secretary of State, except as may otherwise be provided by law, shall have full responsibility for the maintenance, management, and operation of the building and its grounds, including the grounds commonly known as the "Mall Area" to the west of the State Capitol Building and the Capitol Hill Building and adjacent parking areas thereto. The Secretary of State shall not be accountable to the division for such maintenance, management, and operation.

The Secretary of State plainly enjoys discretion and operates with considerable autonomy in managing the Capitol and its grounds. It is apparent from the above-emphasized language that this autonomy specifically extends to independence from the Building Authority Division. The scope of the Secretary's autonomy in this regard cannot be reconciled with the "review and approval" requirement in the historic sites statutes. And given the irreconcilability of the two provisions, the "general statute" on the renovation of all historic structures "must yield to a specific statute involving a particular subject matter," namely, the Secretary of State's authority over maintaining the Capitol and its grounds. Accordingly, insofar as contracts for restoring or maintaining the State Capitol and its grounds are concerned, I believe the Secretary of State may independently determine whether the historic sites procurement procedures under sections 22-9-208 through -211 should be followed, instead of Ark. Code Ann. § 22-9-203 (the public works law).

Finally, in reaching this conclusion, I have considered the following language in the historic sites improvement laws regarding conflicts between those laws and other acts:

In the event there is conflict between the provisions of this section and §§ 22-9-209 - 22-9-211 and the provisions of any other act insofar as the restoration of historic structures is concerned, the procedures set forth in this section and §§ 22-9-209 - 22-9-211 shall govern.

The question arises whether this statute means that the "review and approval" requirement in section 22-9-203(a)(3) applies to the Secretary of State, notwithstanding the autonomy afforded under the other statutes discussed above, because of a "conflict" in that regard. The answer is "no." The conflict provision above sets forth a rule of priority for the special bidding and contractor compensation "procedures" set forth in sections 22-9-208 through -211. Its express purpose is to displace the general bidding procedures applicable to non-historic sites. The review and approval requirement, which controls the decision whether to use the special historic-sites procedures, is not part of those procedures themselves. "Review and approval" is clearly distinct from those procedures. And thus, the review and approval requirement is not part of the provisions that could give rise to a "conflict" under the above statute.

In sum, it is my opinion that the Secretary of State is not exempt from the historic sites improvement laws, with one exception. The "review and approval" requirement does not apply to the Secretary of State.

Sincerely,

LESLIE RUTLEDGE
Attorney General

[Footnote: A different "approval" requirement involving the award of contracts does, however, apply to the Secretary of State. Section 22-9-210(b) states that the contracting agency must submit "recommendations for approval" to the Chief Fiscal Officer of the State before a contract can be awarded. This statute at least implies that the CFO's approval must be obtained before a contractor can be selected. Because this approval requirement conflicts with the statutes that establish the Secretary of State's autonomy in managing the Capitol and its grounds, the requirement will govern pursuant to section 22-9-208(b), the "conflicts" statute discussed above.]