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


as follows: “I must respectfully decline to opine on the questions of (1) whether each of the numerous boards, commissions, or other entities you have listed in your re- quest for my opinion constitutes a “civil office” for the purposes of the recently adopted Article 7, section 53, and (2) whether that same constitutional provision thus prohibits county elected officials from serving on them.” Te Attorney General further stated: “As the discussion below illustrates, the application of the governing legal test requires discovery and analysis of numerous and varied facts concern- ing each entity. Te fact-finding required to address many of the entities you have listed is beyond the scope of an Attorney General’s opinion. I will nonetheless lay out below the prevailing law on what constitutes a ‘civil office’ in the context of a similar and long-standing constitutional pro-


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Court in {Wood v. Miller} declined to set forth any hard and fast rules with regard to the nature of a ‘civil office,’ but it has observed that in any public office the ‘duty [is] a continuing one, which is defined by rules prescribed by the government and not by contract, which an individual is appointed by government to perform.’ Te Court has also consistently adhered to the view that an ‘office’ is created by law, with the tenure, compensation, and duties of the position also usually fixed by law. Other typical factors signifying a public office include the taking of an


he [state Supreme] Court has also consistently adhered to the view that an ‘office’ is created by law,


with the tenure, compensation, and duties of the position also usually fixed by law. Other typical factors signifying a public office include the taking of an oath of office, the


receipt of a formal commission, and the giving of a bond ... — Arkansas Attorney General Leslie Rutledge


hibition placed on sitting legislators. Tis corpus of law, in my opinion, should be equally applicable to the provisions of Article 7, section 53. Tis should be of significant help to you as you apply the law to the individual facts in each case.” ... “In order to de- termine whether a particular position like the ones you mention falls within Article 7, section 53’s proscription for elected county officials, one must first determine whether the position is con- sidered a ‘civil office.’ Te Arkansas Su- preme Court has stated the following in defining the term ‘civil office’ in the context of Article 5, section 10’s simi- lar prohibition against such simultane- ous service by sitting legislators: ‘Te


COUNTY LINES, SUMMER 2017


oath of office, the receipt of a formal commission, and the giving of a bond, although the Court has consistently maintained that no single factor is ever conclusive. In the time period since Wood and Lucas v. Futrall, the Court has consistently applied the principles set forth in those cases so as either to prohibit or to allow dual service insofar as it applies to members of the General Assembly pursuant to Article 5, section 10.” “I have had occasion to apply the


above precepts and precedents to opine that the position of a commissioner for a drainage improvement district is a civil office. In that opinion, I noted that


a commissioner’s position is created by law, and the law — not a contract of employment — expressly establishes the commissioners’ duties (‘assess all benefits ... and all damages....’). Fur- thermore, I noted that the duties are continuing, not occasional or intermit- tent; and that other indicia of a civil office, including the receipt of com- pensation and expenses and the taking of an oath of office, were present. Finally, and perhaps most significantly for the purposes of that opinion, it was clear that the position of an improve- ment district commissioner involved the exercise of sover- eign power as agents of the State both by statutory authority and ‘by legislative delegation through the taxing power of the [S]tate....’ Tus, we can see what the Court generally looks for in deter- mining whether a given position is a ‘civil office,’ at least for the purposes of Article 5, section 10. I have no reason to


doubt that the Court would apply the same definition and consider the same factors in determining a ‘civil office’ in the context of Article 7, section 53. Accordingly, in my opinion, the above principles should be applied to a given office or position, taking into consider- ation the facts of each specific case.” “In your request for my opinion, you note that some state statutes require at least one of the elected county officials named in Article 7, section 53 to serve on a specific board or commission. Tis raises another aspect that must be considered when looking at a specific appointment, that is, whether the stat-


See “CIVIL OFFICES” on Page 21 >>> 13


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