AAC


the General Assembly in a bind by not being able to appoint a county official to the position, but it also excludes proper repre- sentation of county government. Finally, state statutes require many county officials to serve on


certain boards, such as intergovernmental cooperation councils, county equalization boards, and the State Board of Election Commissioners. In these situations, the Attorney General has re- cently opined that it is more likely that the legislature has simply added duties to the county official more than it has created an additional civil office for the official to hold. In preparation for the upcoming legislative session, the Asso- ciation of Arkansas Counties has drafted legislation sponsored by Rep. Holcomb to clarify the issues mentioned above. First and foremost, the bill clarifies that county officials can actually be elected to a civil office during their term. In reference to Article 5, Section 10, the Arkansas Supreme Court has previously held the provision relates to the tenure, or the actual term of the of- fice. For example, a County Judge may be elected state repre- sentative on November 6 (during his term as County Judge), but he does not hold two civil offices. Te County Judge finishes the year out as County Judge and begins the new year as a state


12 13


RESEARCH CORNER


representative. Next, the bill codifies 18 positions that have been deemed by the courts and opined by the Attorney General to be civil offices. Codifying these positions will allow anyone to look up the statute to determine if a position constitutes a civil office and determine whether Article 7, Section 53 is implicated. It is important to note, some courts have held that Article 7, Section 53 only prohibits a sitting county official from being appointed or elected to another civil office, it does not prohibit a person who holds a civil office from being appointed or elected to a county position or as a justice of the peace. Te bill also clarifies that a civil office does not include a position that a county of- ficial may be appointed to on an advisory board, administrative board, or task force.


14 Tis will allow county officials to continue


to be appointed to positions that advise the Governor or General Assembly to allow proper representation of county government. Finally, the bill clarifies that a civil office does not include a position that a county official is required to serve by law. As mentioned above, the Attorney General has opined that when the legislature enacts a statute requiring a county official to be on a board, the intent is not to put them in another civil office, but


15


1. Sarah Giammo, Exploring the ways Issue 1 amends the state Constitution, http://content.yudu.com/libraryHtml/A42t4c/ Winter2017 CountyLines/reader.html?page=14 (last visited Nov. 19, 2018). 2. 3.


Ark. Op. Att’y Gen. 2017-028 (2017). See generally Wood v. Miller, 154 Ark. at 322-23 (1922) (“A civil office is a grant of possession of the sovereign power.”);


Harvey v. Ridgeway, 248 Ark. 35, 46, 450 S.W.2d 281, 287 (1970) (“We are of the opinion that the phrase ‘any civil office under this State’ refers to an office created by civil law within one of the only three branches of government provided for under the pres- ent Constitution of this state.”). 4. 5.


Ark. Op. Att’y Gen. 2017-028 (2017). E.g., Lucas v. Futrall, 84 Ark. 540, 106 S.W. 667 (1907) (“Where an office is created, the law usually fixes the compensa-


tion, prescribes its duties, and requires that the appointee shall give a bond with sureties for the faithful performance of the service required.” (quoting Hall v. Wisconsin, 103 U.S. 5, 26 (1880))); Haynes v. Riales, 226 Ark. 370, 290 S.W.2d 7 (1956) (“Briefly stated, a position is a public office when it is created by law, with duties cast on the incumbent which involve some portion of the sovereign power and in the performance of which the public is concerned, and which also are continuing in their nature and not occasional or intermittent; while a public employment, on the other hand, is a position in the public service which lacks sufficient of the foregoing elements or characteristics to make it an office.” (quoting Bean v. Humphrey, 223 Ark. 118, 264 S.W.2d 607, 609 (1954))); Martindale v. Honey, 259 Ark. 416, 533 S.W.2d 198 (1976). 6.


Ark. Op. Att’y Gen. 2017-114 (2018) (opining that directors of a County Soil Conservation Board and members of cer- tain public facilities boards hold civil offices). 7.


Ark. Op. Att’y Gen. 2017-112 (2018) (opining that county election commissioners, members of the State Board of Par-


dons and Paroles, members of the Board of Trustees of Southern Arkansas University, members of local School Boards, members of the State Board of Career Education, sheriffs and deputy sheriffs, and city police officers hold civil offices); see also, Ark. Op. Att’y Gen. 2011-123 (2011) (opining that police officers, sheriffs and deputy sheriffs are officers for purposes of the constitu- tion); Hensley v. Holder, 228 Ark. 401, 307 S.W.2d 794 (1957) (identifying a sheriff deputy as an officer and not as an employee); Starnes v. Sadler, 237 Ark. 325, 372 S.W.2d 585 (1963) (holding a member of the General Assembly cannot serve as a member of the State Board of Pardons and Paroles during the term he is serving in the General Assembly). 8.


Ark. Op. Att’y Gen. 2017-116 (2018) (opining commissioners of rural water boards or regional water boards, waterworks


and public sewers facilities boards, airport commissions, the Arkansas Fire Protection Service Board, county hospital boards, county or district boards of health, and levee boards or levee improvement district boards are likely civil offices). 9.


teacher whose tenure, compensation, and duties all fixed by his contract with the school boards is an employee rather than an officer and holding that a superintendent of a small school dis- trict is not a civil office); Haynes v. Riales, 226 Ark. 370, 290


COUNTY LINES, FALL 2018


See “CIVIL OFFICE” on Page 14 >>> 13


Ark. Op. Att’y Gen. 2017-115 (2018); See also Maddox v. State, 220 Ark. 762, 249 S.W.2d 972 (1952) (holding a school


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