AAC F A M I L Y  F R I E N D S » » » » » » » » » » » » » » » » » » » » » » » » » » » » » » » » » » » » » » » ...RECENT ATTORNEY GENERAL OPINIONS...


Summarized for county perspective AG OPINION NO. 2012-052


Te Attorney General concluded that the


Arkansas State Highway Commission (ASHC) has a duty to maintain all roads that are properly designated as state highways under A.C.A. 27- 67-2079(b) and that duty includes maintaining the ditches and drainage on city streets. A.C.A. 14-301-101 declares the city council shall have the care and supervision and control of all public highways, bridges, streets, etc. within the city and cause these public ways to be kept open, in repair and free from nuisances does not relieve the ASHC from its more specific and more recently imposed duty by the General Assembly to maintain state highways. Te Attorney General noted that further legislative clarification may be warranted. (Likewise under the law, apparently counties do not have statutory duties to maintain, repair, or conduct drainage work on state highways, U.S. highways or interstate highways. Te Attorney General further explained the responsibility for enforcing any regulations adopted by the ASHC would generally be upon the issuing agency, the ASHC. For example a state regulations to prohibit discarding of debris or leaves unto the ditches of a state highway would be the responsibility of the agency issuing the regulations.


AG OPINION NO. 2012-058 Tis opinion reveals that the Board of


Corrections is in the process of adopting regulations to implement, ACT 570 of 2011, the “Public Safety Improvement Act.” A.C.A. 16-93-711 subsection D deals with the monitoring of inmates after serving 120 days of their sentence but does not specifically require the offender to pay the costs of electronic monitoring.


A.C.A. 16-93-1205 allows the


receipt of compensation from fees or from other available sources for participating in a community correction program. Te contract provides the costs to the offender will be $2.37 per day or $219.30 for 90 days. With this background, the Attorney General found the Board of Corrections could adopt rules assessing the fee, as a front-end loaded fee, upon the offender for participating in a community


COUNTY LINES, FALL 2012


corrections program. However, the Attorney General cautioned the Board of Corrections about adopting a rule that denied indigent parolees access to the community correction programs which require electronic monitoring, if the denial is based solely on the inability of the indigent to pay the front-end loaded fee. He cited Attorney General Opinion No. 2008- 0153 which opined that the refusal of a court to consider probation as a sentencing option purely because of their status as indigents may be subject to challenge for violation of the Equal Protection Clause guarantees set forth in the 14th Amendment of the United States Constitution and Sections 2 and 3 of Article 2 of the Arkansas Constitution.


AG OPINION NO. 2012-112 Upon request, it is the duty of the Attorney


General to determine if a decision of a custodian is consistent with the Freedom of Information Act (FOIA). Te AG says records generated as part of an investigation may be considered employee evaluations or job performance records and may be exempt from release under the FOIA and may constitute an unwarranted invasion of privacy. Te Attorney General’s office and commentators have typically classified that personnel files typically include: employment applications, school transcripts, payroll- related documents such as re-classifications, promotions, demotions, transfer records, health and life insurance forms, performance evaluations, recommendation letters, etc. However,


notwithstanding the exemption,


A.C.A. 25-19-105(c)(1) provides that employee evaluations may be subject to release upon final administrative resolution of any suspension or termination at which the records form a basis for the decision to suspend or terminate the employee and there is a compelling public interest. Compelling public interests involve violations of public trust or gross incompetence; the existence of a public controversy; and the employees position within the agency. Custodians may consistent with the FOIA clearly withhold employee evaluations of low level employees not suspended or terminated. However, in the context of law enforcement officers, the level or ranking of the employee has less weight and the public interest is greater.


was or


involved


Whether or not an


employee directly


indirectly in


an incident is relevant


and


may turn on whether are


there


of a single event or


events. 2012-105.


AG OPINION NO. 2012-111, 2012-110, 2011-156 and 2011-058


Reflect disclosure of the names of county


employees or list of county employees is generally not protected. Te AG has explained that the General Assembly has refrained from establishing a protection from releasing an employee’s name on the basis of “harassment exception” or “increased risk of harm exception.” Attorney General Opinion 2012-071: Under


Arkansas law convicted felons are prohibited from possessing or owning firearms. However, drug courts are pre-adjudication courts and are not convicted provided they comply with the terms of participation. So, participation in a drug court program does not amount to the conviction of a felony or a prohibition from possessing or owning firearms.


AG OPINION NO. 2012-090 Te Attorney General explained the


Arkansas State Medical Board, a state agency, is not required by A.C.A. 12-18-402 to report suspected child maltreatment identified or reported to the board. However, the individual physicians that serve on the Arkansas State Medical Board are mandatory reporters under the law since physicians are mandatory reporters under A.C.A. 12-18-402(b)(19). Te General explained the physician’s duty to report as a mandatory reporter arises the same from their suspicions whether they arise in connection to the service on the board or in connection to their regular practice of medicine.


11


allegations multiple


Mark Whitmore AAC Chief Counsel


See also: Attorney General Opinions AG Opinions


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