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...ATTORNEY GENERAL OPINIONS...
Voluntary taxes, Judge/Q.C. authority, solid waste boards, APERS changes
AG OPINION NOs: 1991-015
1991-082 1996-069 1999-408 2011-149
1991-077 1994-003 1999-231 2005-205
Voluntary Taxes
Te Attorney General has stated in numer- ous opinions that the collection of a voluntary tax paid by the county to a private nonprofit corporation violates the Arkansas Constitution, Article 12, § 5, which prescribes: “No county, city, town or municipality shall become a stock- holder in any company, association or corpo- ration; or obtain or appropriate money for, or loan its credit to, any corporation, association, institution or individual.” A quorum court may appropriate funds from
a voluntary tax for a grant to a public entity such as a conservation district. See: AG Opin- ions Nos. 1992-083 and 1994-003. In some instances the specific facts may allow
for voluntary tax proceeds to be turned over to a public entity or a private entity that is perform- ing a community service grant. In Gordon v. Woodruff, 217 Ark. 653 (1950)
the Supreme Court upheld an appropriation for a grant to a county fair association was made to aid the construction of buildings on county property. Likewise, a grant to a community col- lege foundation spent to aid a public commu- nity college may be considered legal. See: AG Opinion No. 1991-082. Appropriations to a private nonprofit corpo- ration for charitable and laudable purposes such as operating shelters, such as shelters for animals or shelters for juveniles, are considered illegal. See: AG Opinion No. 1991-015. Appropriations for a non-profit private cor- poration to a learning center with contracts
COUNTY LINES, WINTER 2012
with the state are not governmental functions of city or county government. See: AG Opinion No. 1992-019. A voluntary tax to a nonprofit fire department is not permitted. However, a voluntary tax to a fire protection district may be upheld by the courts since a fire protection district is plainly a public entity. See: AG 2011- 149. Te collection of money by the county for the benefit of private corporations is a violation of the Arkansas Constitution, Article 12, § 5. See AG Opinion No. 1996-069. AG Opinions 1999-408 and 2005-205 ex- plain that the courts have held that an organiza- tion’s formation as a private nonprofit corpora- tion will preclude itself from receiving support from a political subdivision. AG Opinion No. 1999-231 explains that a quorum court may re- peal voluntary taxes; and that taxes voluntarily paid under the common law doctrine of volun- tariness precludes refunds.
AG OPNION NO. 2011-087
Judge / Q.C. employment authority Under the Arkansas Constitution and laws
of Arkansas, the county judge, not the quo- rum court, has the authority to hire and fire the county attorney. Te Arkansas Constitution, Amendment 55,
§ 3, vests the county judge with the authority to hire and fire county employees, except those persons employed by other elected officials of the county. Likewise, A.C.A. 14-14-1102 vests the power
to hire independent contractors, employ neces- sary personnel or purchase labor or services for the county with the county judge. Te quorum court has the authority to make appropriations for employee positions or contract services but is prohibited by separa- tion of powers from making employee hiring decisions or designating specific vendors or contract awards.
AG OPNION NO. 2011-075 and 2011-079 APERS Changes
Act 558 of 2011 amended A.C.A. 24-4-402,
effective Jan. 1, 2012, to provide that an APERS employers will be responsible for employer con- tributions to APERS for retired employees that have returned to work and members on the De- ferred Retirement Option plan (“DROP”). Te Attorney General determined that the act applies prospectively to all employees that returned to work and employees on the DROP Plan as of the effective date of the act or thereaf- ter. Employers will not owe employer contribu- tions retroactively. Employees that have retired and returned to
work or that have joined the DROP will not owe employee contributions to APERS.
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AG OPINION NO. 2011-073
Solid waste boards
Mark Whitmore AAC Chief Counsel
Solid waste boards must comply with A.C.A. 25-15-201 et seq., the Administrative Proce- dures Act (the “APA”), in promulgating regula- tions. A.C.A. 25-15-201 sets forth the notice and publication requirements for rule making by state agencies. A.C.A. 8-6-704 provides that solid waste
boards have the power to adopt: (1) rules in assuring public notice and participation in any rulings and findings of the board and (2) rules that address board administration. Te Attorney General determined that in adopting rules solid waste boards in Arkan- sas must comply with the ADA, A.C.A. 25- 15-201 et seq.
AG Opinions
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