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


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Constitutional Conflicts: Article 19, Section 6 of the Arkansas Constitution states, “No person shall hold or perform the duties of more than one office in the same department of the govern- ment at the same time, except as expressly directed or permitted by this Constitution.” Te act of holding concurrent elected or even deputy positions is clearly prohibited by the Constitution, if the position is considered an “office.” Te Constitution does not, however, explicitly address the legitimacy of holding an elected or deputized position concurrently with a non-office role. See AG Opinion 2010-045. Article 4, Section 1 divides the powers of government of the state of Arkansas into legislative, executive and judicial departments. Article 4, Section 2 provides, “No person or collection of persons, being one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.”


Statutory Conflicts: To determine whether there is a statutory conflict, there must be a significant understanding of the facts sur- rounding the inquiry. Necessary information includes, but is not limited to: the duties of the offices, where funding originates, back- ground information on the candidate, membership of committees and origin of compensation. Some statutes have been around for many years, but new statutes are constantly implemented. It is im- portant to check with an attorney to see if any apply.


Common Law Conflicts: At common law, there is the possibil- ity of a conflict under the “doctrine of incompatibility.” If there is a situation in which, “the discharge of the duties of the one [posi- tion] conflict[s] with the duties of the other, to the detriment of the public good,” then the doctrine applies [State ex rel Murphy v. Townsend, 72 Ark. 180 (1904)]. Te Supreme Court of Arkansas more recently stated:


One commentator has explained, “Incompatibility arises, therefore,


from the nature of the duties of the offices, when there is an inconsis- tency in the functions of the two, where the functions of the two are inherently inconsistent or repugnant, as where the antagonism would result in the attempt by one person to discharge the duties of both of- fices, or where the nature and duties of the two offices are such as to render it improper from considerations of public policy for one person to retain both” [Eugene McQuillin, 3 Te Law of Municipal Corpora- tions § 12.67 (3d ed. 1990].


Te common law “doctrine of incompatibility” usually applies


to dual-office situations, but the AG has stated that it also can apply to the concurrent holding of an office and a public employ- ment [AG Opinion 2006-219, citing Tompson v. Roberts, 333 Ark. 544, 970 S.W.2d 239 (1998) and AG Opinion 2006-066].


Attorney General Opinions


Te Arkansas Attorney General’s office provides guidance for questions regarding conflicts of interest. Most opinions essentially apply the conflict of interest test. One example of a dual office situation that is likely allowable can be found in AG Opinion 1999-249, which addresses whether service on both a local school board and the quorum court is com-


COUNTY LINES, SUMMER 2014


patible if the quorum court is responsible for filling vacancies on local school boards. Te AG eventually stated that as long as the quorum court does not fill a vacancy with one of its own members, the dual service is likely permissible. However, in AG Opinion 2002-133, the AG opined that the dual service as a county coroner and a justice of the peace is not permissible because it would give rise to unlawful conflicts of interest. Generally, the AG believes that most dual offices are likely pro- hibited. Tere are only a few instances where the AG has defini- tively ruled a combination of roles is allowable. Te one common thread that opinions share is the application of the three-test pro- cess to determine whether a combination of services is allowable. To answer the question of whether any combination of offices is allowable, there must be a thorough analysis of the facts. It is important to remember that any question regarding a con- flict of interest or dual office holding is a factually intensive inquiry that is best handled by the judiciary.


Removal of Office If, at any time, someone realizes there is a conflict of interest or


problem with eligibility, there can be serious consequences. Tis type of situation can yield many outcomes, one of which is removal of office. One recent incident involved Searcy County Sheriff and Collector Kenny Webster Cassell. In October 1979, Cassell, who was a deputy sheriff at the time, pled guilty to unlawfully possess- ing less than $100 worth of Cornish hens, with knowledge they were stolen, a misdemeanor violation of 18 USC 659, Embezzle- ment or Teft of Interstate or Foreign Shipments by carrier [State v. Cassell, 427 S.W.3d 663, 664 (Ark. 2013)]. Article 5, Section 9 of the Arkansas Constitution states, “No person hereafter convicted of embezzlement of public money, bribery, forgery or other infa- mous crime, shall be eligible to the General Assembly or capable of holding any public office of trust or profit in this State.” An infamous crime is one that involves elements of deceit and dishon- esty, and since theft is a crime that involves dishonesty, someone who commits theft is constitutionally barred from serving as an elected public official [State v. Cassell, 427 S.W.3d 663, 666 (Ark. 2013)]. Even though possessing less than $100 worth of stolen goods seems like a petty crime, it is enough that there is dishonesty involved to preclude an individual from holding public office.


Arkansas Ethics Commission


When running as a candidate, there must be certain disclosures made to be eligible for office. Tese disclosures can be found on the Arkansas Ethics Commission’s web site. Te list of disclosures includes a candidate’s name, location, reason for filing, source of in- come, business or holdings, office or directorship, creditors, past-due amounts owed to government, guarantor or company-maker, gifts, awards, non-governmental sources of payment, direct regulation of business and sales to governmental body. For additional informa- tion, refer to the Ethics Commission web site.


On the Web:


Look for history and footnotes online at www.arcounties.org Search “Ethics and Conflicts of Interest.”


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