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AAC


RESEARCH CORNER Clarifying civil offices


Story by Mark Whitmore AAC Chief Legal Counsel &


Blake Gary AAC Law Clerk


A


n avid reader of the County Lines magazine may recall an article from the Winter 2017 issue entitled “Exploring the Ways Issue 1 Amends the State Con- stitution” written by former AAC law clerk Sarah Giammo. As discussed in the article, Arkansans


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approved Issue 1 with 70.22 percent voting yes in the 2016 No- vember General Election, resulting in the 95th amendment to the Arkansas Constitution of 1874. Sen. Bryan King, along with Rep. Jack Ladyman and Rep. David Branscum, were sponsors of Senate Joint Resolution (SJR) 5, House Joint Resolution (HJR) 1027, and HJR 1006, respectively, that became Amendment 95. Te passage of Issue 1 made four changes to the Arkansas Constitution. First, it extended the length of terms for county officials from two years to four years. Second, it established the civil office provision for county officials. Tird, it defined “infamous crime” for the purposes of determining who is eligible to run for or continue to hold an elected position. Finally, it al- lowed candidates who are unopposed to be elected without their name appearing on the ballot. As mentioned above, one of the ways Issue 1 amended the state constitution was by adding a civil office provision for county officials. Amendment 95 amended Article 7 of the Arkansas Constitution to add section 53 which reads, “A person elected or appointed to any of the following county offices shall not, during the term for which he or she has been elected, be appointed or elected to any civil office in this state: (1) County judge; (2) Justice of the Peace; (3) Sheriff; (4) Circuit clerk; (5) County clerk; (6) Assessor; (7) Coroner; (8) Treasurer; (9) County surveyor; or (10) collector of taxes. Despite the subject and style change, Article 7, section 53 now reads like Article 5, section 10, a similar provision placed on sitting legislators that states, “No Senator or Representative shall, during the term for which he shall have been elected, be appointed or elected to any civil office under this State.” However, the drafters of both provisions declined to define the term “civil office,” leaving the interpretation up to the courts. In an effort to clear the haziness of civil offices, Sen. King


requested an opinion of the Attorney General in March of 2017 on which particular appointments or elective positions a county official or justice of the peace might legally hold. While the Attorney General did not make a determination as to the 23 specific boards or commissions in question, she did shed light


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and provided guidance on the prevailing law of what constitutes a “civil office” in the context of Article 5, Section 10. Te At- torney General opined that the corpus of law used to make civil office determinations under Article 5, § 10 should be equally applicable to the provisions of Article 7, Section 53. Te Attorney General also provided certain indicia of a civil office including, but not limited to: (1) the duty of the office is a continuing one; (2) the public office is defined by rules prescribed by government and not by contract; (3) the individual is appointed by government to perform; (4) the office is created by law; (5) the tenure, compensation, and duties of the position is fixed by law; (6) the public office requires the taking of an oath of office, the receipt of a formal commission, and the taking of a bond. In early October of 2017, five legislators, Rep. Mike Hol-


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comb, Rep. Sarah Capps , Rep. Lanny Fite , Rep. Kim Ham- mer , and Rep. John Maddox , each requested an opinion from the Attorney General asking: (1) whether certain boards and commissions were “civil offices” under Article 5, section 10 and (2) if so, whether the boards and commissions would also be considered “civil offices” under Article 7, section 53. Collectively, the representatives inquired about 33 different positions. Te Attorney General opined on which boards and commissions she believed were and were not “civil offices”. However, legislation is needed to clarify three issues: (1) whether a county official could run and be elected to a civil office during their current term; (2) whether a county official may be appointed to a position on an advisory board; and (3) whether a county official holds a civil office when state law requires their presence on the board. First, the plain language of Article 7, section 53 states in rele-


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vant part, “a person elected or appointed to any of the following county offices shall not, during the term for which he or she has been elected be appointed or elected to any civil office.” Based on the language of this provision, it might appear that a county official would be prohibited from running and being elected to their own position because the language states a county official cannot be elected to a civil office during the term they are serv- ing. Te language of Article 7, section 53 was meant to replicate the language in Article 5, section 10, however, the language of Article 5, section 10 was originally drafted when legislators took office the day they were elected in November. Today, county officials are elected in November, but do not begin their term until January. Second, as the leaders of county government, county officials


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are often appointed to boards or commissions that are meant to advise certain individuals and entities such as the Governor, the General Assembly, and state agencies. If an advisory board is deemed to be a civil office, it not only puts the Governor or


COUNTY LINES, FALL 2018


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