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AAC F A M I L Y & F R I E N D S Forward


bright line rules, but it has provided several features that typically make an “office” distinguishable from a regular “employment.” For example, unlike an employment, the compensation and du- ties of an office are usually provided by law, either by the Arkan- sas Constitution or by statute, and the responsibilities of an office continue even after the person holding the position changes. Te court has provided an additional list of factors that tend to signify a civil office, which includes:


taking an oath; giving or posting


a bond (a written promise to pay money or perform some act if the person does not faithfully discharge the responsibilities of the office); and receiving a formal commission. No one factor is dis- positive, but the absence of any or all of the factors would suggest that the position is employment instead of a civil office. Timing is very important where Art. 5 § 10 is concerned. Te provision applies after a person is seated in the legislature and during the entire length of his or her term. Te provision does not preclude a legislator from running for or being appointed to another posi- tion as long as the terms do not overlap. If the terms do overlap, however, the prohibition would apply, and resignation would not remedy the cause for concern. Te fact that the official is not paid or serves in an ex-officio capacity also does not satisfy the prohi- bition. Ultimately for county elected officials, this provision may affect their eligibility to serve on various boards and commissions. Some of the positions the court has already deemed civil offices have included: municipal judge, county election commissioner, member of school board, member of county board of education, and prosecuting and deputy prosecuting attorneys, among oth- ers. To illustrate, for example, the attorney general found that a municipal housing commission is a civil office because (1) the position is created by state statute; (2) the tenure, compensation, and duties of the position are created by statute; (3) the duties of the office are public in nature; and (4) the duties are not affected by a change in the person of the incumbent. On the other hand, an auditor for the Arkansas Burial Association Board (ABAB) was not considered a civil office. Even though a statute established the ABAB, the statute did not set out the term or tenure of the auditors, the pay or the duties of the position. Te auditors could have been hired via contract or agreement with the board. Article 7 § 53, may also affect county elected officials’ ability to seek a higher office. For example, because the length of their terms in office has been extended from two years to four years, it is pos- sible that a house or senate seat will come open during their term. In that case, county elected officials will not be eligible to run for the open seat, and resignation from their county elected position will not fix the problem. Note that even though justices of the peace will continue to serve only two year terms, they too, will not be permitted to be elected or appointed to another civil office during their term.


16


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Continued From Page 17 <<< Conclusion Whether Issue 1 will accomplish everything it set out to accom-


plish by its various provisions remains to be seen. Te creation of four-year terms and the provision enabling the legislature to pass laws permitting unopposed candidates to be elected without their names being published on the ballot, appear to be the easiest provisions to implement. It is unclear whether the new definition for “infamous crime” resolved all of the uncertainty with respect to which crimes should ultimately be classified as infamous, and there will be many details to sort out regarding which boards and commissions have positions that should be labeled “civil offices.”


Sources CAL LEDBETTER, JR., THE ARKANSAS HISTORICAL


QUARTERLY, 69-70 (Vol. 37, No. 1 1978). State v. Oldner, 361 Ark 316, 323, 206 S.W.3d 818, 319


(Ark. 2005). Edwards v. Campbell, 2010 Ark. 398, *9, 370 S.W. 250, 255.


State v. Cassell, 2013 Ark. 221, *7, 427 S.W.2d 663, 667. Wood v. Miller, 154 Ark. 318, 322-23, 242 S.W. 573, 575


(Ark. 1922). State Bd. Of Workforce Educ. v. King, 336 Ark. 409, 416, 985


S.W.2d 731, 734 (Ark. 1999). Id. (quoting Harvey, 248 at 46, 450 S.W.2d at 288.) Wood, 154 Ark. at 322-23, 242 S.W. at 575. (Emphasis added). Ark. Op. Att’y Gen. 1999-396 (2000). Lucas v. Futrall, 84 Ark. 540, 547, 106 S.W. 667, 669 (Ark.


1907). Maddox v. State, 220 Ark 762, 763-64, 249 S.W.2d 972, 972-


73 (Ark. 1952). Ark. Op. Att’y Gen. 96-245 (1996). See also, Ark. Op. Att’y


Gen. 2006-078 (2006). Johnson v. Darnell, 220 Ark. 625, 629-630, 249 S.W.2d 5, 7-8


(Ark. 1952). See also, Jones v. Duckett, 234 Ark. 990, 992, 356 S.W.2d 5, 6 (Ark. 1962) (stating, “[w]e recently held in Johnson v. Darnell, that a state representative might, during his term of of- fice, be elected to another office if his tenure there would not be- gin until after the expiration of his term of office as a legislator.”). Jones, 234 Ark. at 992, 356 S.W.2d at 6. See also, Ark. Op.


Att’y Gen. 2006-078 (2006). King, 336 Ark. at 416, 985 S.W.2d at 734. Wood, 154 Ark. at 323, 242 S.W. at 575. See also, Johnson,


220 Ark. at 629-630, 249 S.W.2d at 7-8. Jones, 234 Ark. at 992, 356 S.W.2d at 6.


Bird v. State, 240 Ark. 743, 745, 402 S.W.2d 121, 123 (Ark.


1966). Martindale v. Honey, 259 Ark. 416, 419, 533 S.W.2d 198,


199 (Ark. 1976). Ark. Op. Att’y Gen. 96-147 (1996). Haynes v. Riales, 226 Ark. 370, 376, 290 S.W.2d 7, 10-11


(1956). COUNTY LINES, WINTER 2017


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