Arkansas Attorney General's October Opinions Digest
Alternative methods of learning, county roads, FOIA, vape stores, ballot titles...all of these matter
[Editor's Note: We usually don’t run press releases. However, we thought this release from Arkansas Attorney General Tim Griffin with recently issued opinions from his office was worth sharing with readers.]
Requested by State Representative Julie Mayberry
Question 1: Do public school districts have the statutory authority to use Commissioner-approved days for alternative methods of instruction, including without limitation virtual learning, on days when the public school district is closed due to exceptional or emergency circumstances?
Brief Response: Yes.
Question 2: Do the student attendance days that are approved for use by public school districts as alternative methods of instruction under A.C.A. § 6-10-127, including those days used exclusively as virtual-learning days, count toward the 178 days or 1,068 hours that public school districts shall be open for “on-site, in-person instruction” for purposes of receiving funds to implement the new minimum base salary under the LEARNS Act?
Brief Response: Probably not, but legislative clarification is warranted.
Question 3: Is a public school that offers a digital program as a primary method of instruction for some enrolled students—in addition to a traditional method of instruction for other enrolled students—in compliance with the requirement that public schools be open for “on-site, in-person instruction for at least” 178 days or 1,068 hours during each school year in order to be eligible to receive funds to implement the new minimum base salary under the LEARNS Act?
Brief Response: Yes, if it is open for at least 178 days or 1,068 hours of on-site, in-person instruction during the school year.
Requested by State Senator Missy Thomas Irvin
Question: Does the inclusion of “sexual orientation” and “gender identity” in school district policies as protected classifications violate Act 461 of 2021, Act 953 of 2021, or Act 137 of 2015?
Brief Response: Yes, such a policy would violate Act 137, and it would not comply with Act 461 or Act 953 if the policy were applied in such a way that the school district (1) failed to designate sports teams as male, female, or co-ed; or (2) allowed male students to participate in female-designated sports teams.
Requested by Director Austin Booth, Arkansas Game and Fish Commission
Question 1: Was the attached December 15, 2016 Chicot County Court Order No. CC16-28 (Exhibit “B”) sufficient to accept Immigrant Road (as described therein) into the Chicot County Road System and make it a public road?
Brief Response: No, because the Arkansas Code requires that the landowner have, first, donated the property to the county. I have not been presented with any facts on whether a donation occurred. And, second, the Chicot County Court Order contains an insufficient legal description of the road.
Question 2: If Chicot County has maintained Immigrant Road since August 24, 1995, as stated in the County Judge’s Order, is that sufficient to make Immigrant Road a public road?
Brief Response: As explained in the opinion, this is a highly factual question that cannot be resolved in an Attorney General opinion.
Question 3: If Immigrant Road is a public road, may a private party who (by virtue of a deed, easement, lease, or other instrument) asserts an interest in the property underlying the public road legally block or interfere with the use of the road by the Commission, the public, or the other landowners along the road?
Brief Response: Likely not. Generally, a person cannot block, obstruct, or otherwise interfere with the public use of the road. But a landowner may lawfully assert rights to a road when the public abandons the road.
Question 4: If such a private party does block or interfere with the use of a public road, what remedies are available to an affected user of the road?
Brief Response: The sorts of civil and criminal remedies available for unlawful obstruction or trespass wholly depend on the facts at hand.
Requested by State Representative Lanny Fite
Question 1: Birch Tree Communities, Inc. is a statewide, nonprofit, behavioral-health program that also provides residential services for certain patients. Are Birch Tree’s staff residential managers exempt from being required to obtain a real-estate license pursuant to A.C.A. § 17-42-104(a)(10)?
Brief Response: Yes, most likely.
Question 2: If Birch Tree’s staff residential managers are exempt, should Birch Tree be required to have a licensed real estate agent or separate broker to manage certain properties and potentially be subject to paying additional fees and commissions to any third-party agents and/or brokers?
Brief Response: While Arkansas law does not require Birch Tree to use a licensed real estate agent or broker to manage its residential services, I cannot opine on whether federal law would require Birch Tree to use them to manage HUD properties.
Requested by State Senator Ricky Hill
Question: Under A.C.A. §§ 14-298-101 to 14-298-125, does the county judge or the quorum court have the authority to plan and construct new county roads?
Brief Response: The quorum court has authority to plan county roads, and the county judge has the authority to construct and maintain county roads.
Requested by Mr. Dan Turner, Prosecuting Attorney
Question 1: Can an individual serving as mayor represent private clients in criminal cases in courts within the same judicial district?
Question 2: Can an individual serving as mayor serve as a public defender in courts within the same judicial district?
Brief Response: The answer to both your questions is “yes,” but specific cases might arise in which representing those clients creates a conflict of interest warranting recusal or withdrawal from a particular case.
Requested by State Representative Carlton Wing
Question 1: Can a city, county, or other municipality limit, regulate, zone, or restrict a vape shop located within its jurisdiction?
Question 2: Does a city, county, or other municipality have limits on how it restricts, regulates, or zones a vape shop?
Question 3: Do any current state laws provide guidance on this topic to our cities, counties, and other municipalities?
Brief Response: A city or county may limit, regulate, zone, or restrict a vape shop located within its jurisdiction unless the regulation conflicts with state or federal law.
Requested by Mr. David A. Couch
Question: Request for review and certification of the popular name and ballot title of a proposed initiated act with the popular name, “An Act to Exempt Feminine Hygiene Products and Diapers from Sales and Use Tax.”
Brief Response: The popular name is certified as submitted, and the ballot title is certified as substituted.
Requested by State Representative Carlton Wing
Question 1: Can a city or other municipality lease city-owned property for below fair market rental rates?
Brief Response: Yes, as long as the lease is supported by adequate consideration, which can include nonfinancial benefits that accrue to the city.
Question 2: How should a city or other municipality assess and determine fair market value for any potential property or space that it may lease to third party/non-governmental entities?
Brief Response: This is a highly fact-dependent question that is beyond the scope of a legal opinion from the Attorney General.
Question 3: If a city leases city-owned property to a for-profit/non-governmental entity and it is determined that the rental rate is below the fair market value, would that be considered a subsidy that potentially violates the Arkansas Constitution, more specifically Article 12, Section 5?
Brief Response: Not necessarily; if the lease is supported by adequate consideration, then the lease would not violate the state constitution.
Question 4: Would a city or other municipality that leases below fair market value be creating an unfair competitive advantage against other similarly situated businesses?
Brief Response: The answer to this question depends on whether the consideration for the lease agreement is adequate, which is a highly factual question that is beyond the scope of an Attorney General opinion.
Requested by Mr. Jimmie Cavin
Question: Under the FOIA, is the custodian’s decision to withhold certain employment-related records consistent with the law?
Brief Response: Since the custodian has withheld the records under the employee-evaluation exemption, the propriety of the custodian’s decision depends on (1) whether Ms. Blakely was, in fact, placed on “administrative leave”; and (2) if so, whether that “administrative leave” was disciplinary in nature. If the answer to either question is “no,” then the custodian’s decision is inconsistent with the FOIA. But if the answer to both questions is “yes,” then the analysis shifts to whether the test for disclosure, which is detailed in the opinion, has been met.
Requested by Mr. David E. Dinwiddie
Question: Request for review and certification of the popular name and ballot title of a proposed initiated act with the popular name, “An Initiated Act to Allow Vehicles Twenty-Five (25) Years or Older to Apply for Antique Automobile License Tags.”
Brief Response: Having reviewed the text of your proposed initiated act, as well as your proposed popular name and ballot title, I have concluded that I must reject your proposed ballot title as misleading because it makes no attempt to summarize the measure’s text in a way that complies with the law.
Requested by Officer Cebron Hackett
Question: Under the FOIA, is the custodian’s decision to release certain employment-related records consistent with the law, even though the subject of the records objects to the disclosure because he believes the requester plans to use the records in a proceeding that is unrelated to his disciplinary suspension or the underlying events that gave rise to the suspension?
Brief Response: Yes, this office has consistently opined that, under the FOIA, the requester’s intent and motives are generally irrelevant to the custodian when determining whether public records must be disclosed. Therefore, this objection is not a sufficient basis for the custodian to withhold the records from disclosure.
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