Attorney General's April Opinions Digest
Used-tire programs. Mayor's powers. Electronic voter registration. Affordable housing for teachers.
[Editor's Note: We usually don’t run press releases. However, we think this release from Arkansas Attorney General Tim Griffin with recently issued opinions from his office is always worth sharing with our readers.]
To better communicate with the public, press, and interested parties, Arkansas Attorney General Tim Griffin publishes a monthly digest of recently issued opinions. This month’s digest includes all opinions issued during April 2024.
Clicking on the opinion numbers in this digest will take you to the full opinion. To find other opinions, please visit our opinions search page here.
OPINION 2023-076
Requested by State Senator David Wallace and State Representative Jimmy Gazaway
Question 1: Are there any statutory remedies that would provide the newly elected board with access to the funds held on deposit with the bank?
Question 2: Are there any rights or duties in statute available to any public official (state, county, or otherwise) to require the previous board or bank to relinquish control of the funds to the newly elected board for providing fire-protection services to the corresponding service area?
Brief Response: The available remedies will depend on the reason why the newly elected board cannot access or transfer the tax revenue. Those remedies could include a statutory usurpation action, a common-law writ of quo warranto, or an “illegal exaction” lawsuit under Article 16, § 13, of the Arkansas Constitution.
OPINION 2023-095
Requested by State Senator John Payton
Question 1: What type of legal entity are the four (4) new used-tire programs (UTPs)/tire accountability boards from a legal perspective?
Question 2: Do the UTP boards have statutory authority to enter into agreements with processors or collection sites?
Question 3: May a regional solid waste management district (RSWMD) legally enter into a contract or agreement with a new UTP/tire accountability board to provide services to the UTP or board?
Question 4: What procurement laws apply to the UTP/tire accountability board, especially related to requests for proposals/bids, accounting procedures, etc.?
Question 5: Are the RSWMDs divested of the responsibility for the collection and management of used tires since the districts are no longer eligible to receive funding from the state tire program?
Question 6: A.C.A. § 8-9-410(d) now states, “The tire accountability board in each of the [new] used tire programs may enter into an interlocal agreement to determine the highest level of efficiency regarding tire processing in the respective used tire program.” Since the tire accountability board members are representing their individual counties and cities—rather than solid waste districts—these particular interlocal agreements for the operation of the boards would seem to be between counties and cities. Is that correct?
Question 6(a): How should an interlocal agreement be structured to meet the requirements of the new law?
Question 7: If a UTP/tire accountability board’s business plan is not approved by the Division of Environmental Quality, must either the tire accountability board or RSWMD Board continue to provide tire collection and processing of used tires?
Question 8: Are the contracts that were established prior to the enactment of Act 713 between RSWMDs and contractors for collection, transportation, processing, or disposal of used tires vacated upon the effective date of Act 713?
Question 9: Does the federal and/or Arkansas Freedom of Information Act apply to the four (4) new UTP/tire accountability boards?
Brief Response: Please review the published opinion for responses to these questions.
OPINION 2023-104
Requested by State Representative Rick McClure
Question 1: Pursuant to Arkansas Code § 14-43-504, in cities of the first class, does a Mayor possess similar or the same power as a county sheriff to suppress disorder and keep the peace?
Question 2: Further, in cities of the first class, what specific law-enforcement powers or authority does a Mayor possess?
Question 3: Arkansas Code § 27-53-303 generally states that the municipal police have jurisdiction in the municipality and the sheriff for the county and other municipalities. In a city of the first class, does a sheriff lack jurisdiction within the city limits, provided the city has a functioning police department?
Brief Response: Since at least 1875, the General Assembly has granted mayors law-enforcement authority within their cities to suppress disorder, keep the peace, and make arrests under certain circumstances. Today, the exercise of that authority is subject to certain constitutional and procedural protections. Thus, without proper law-enforcement training, a mayor exercising his or her law-enforcement authority could easily infringe an individual’s rights, thereby subjecting themselves or the city to litigation and monetary damages.
OPINION 2023-106
Requested by State Senator Joshua Bryant
Question 1: I would like to know how you determined that the nine-acre tract of land is not required “for the future or present needs of the school district” when the express reason for donating the land is because the school district needs affordable housing to staff its schools? If the school district needs the housing and the only means of obtaining the housing is with the land, doesn’t that then mean that the land is required for the future or present needs of the school district?
Question 2: If the Bentonville School District’s Board of Directors determines that the land is not required for the school district’s present or future needs and, in turn, donates the land for the purpose of serving an express need of the school district, would that conduct be subject to legal challenge?
Question 3: Given that the stated objectives of the development clearly involve both educational and non-educational goals, how much educational benefit must be derived from the land before the donation is deemed to satisfy the statutory requirement? If the land is predominantly developed for non-educational reasons, may the land still be donated? For example, if no more than two acres will be dedicated to teacher housing and student learning, may the district still donate the other seven acres despite their lack of educational ties?
Question 4: Generally speaking, how long must property donated under A.C.A. § 6 21 108 serve an educational benefit? More specifically, must the land serve a “beneficial educational service for the citizens of the [Bentonville School District]” in perpetuity? If yes, what happens to the land and the validity of the donation if the land ceases to serve a beneficial educational service? If no, how long must the land serve a beneficial educational service before it may be converted entirely to a different use?
Question 5: Is the land, which is “adjacent to the high school,” sufficiently part of the school’s grounds such that it constitutes space where students receive instruction? If no, how much curtilage is included in the definition of an “academic facility”? If yes, can the Bentonville School District otherwise transfer the land—by way of a donation—without first offering open-enrollment charter schools within its district a right of first refusal lasting at least two (2) years after the date that the “real property was last used as an academic facility?”
Question 6: Is the land unused or underutilized “real property” such that the Bentonville School District must identify it as an “unused or underutilized public school facility”? If yes, must the Bentonville School District provide charter schools in the area an opportunity to lease or purchase the real property before otherwise transferring the land to a third party? If no, when and how does the nonuse of real property become threatening to the integrity or purpose of a public school facility or public education facility?
Question 7: The opinion reasons that the proposed use for the land would not violate the constitutional prohibition against using “money or property belonging to the public school fund, or to this State,” for a purpose other than benefiting public schools. I would like to know how much public-school benefit is enough to survive constitutional scrutiny. The opinion appears to conclude that school money or property may be repurposed for predominantly non-educational uses as long as there remains a perfunctory educational nexus.
Brief Response: Please review the published opinion for responses to these questions.
OPINION 2023-115
Requested by State Senator Kim Hammer
Question: The citizens of the city of Benton voted in 1972 for a “1 mill property tax to support the Benton Fire Department Pension,” and the Benton City Council passed an ordinance in 1982 to reduce the amount paid to the pension fund to 0.4 mills with the remaining 0.6 mills being paid into the city’s general fund. Is the Benton City Council’s diverting of 0.6 mills of the 1-mill property tax from the pension fund into the city’s general fund an illegal exaction?
Brief Response: While I am not a factfinder when issuing opinions and based on the facts as you have relayed them, I believe a court would likely find that the Benton City Council’s diversion of 0.6 mills from the original 1-mill property tax is an illegal exaction.
OPINION 2023-118
Requested by State Senator Kim Hammer
Question 1: It is the club’s understanding that Arkansas has a legal requirement that gift cards must have a minimum of a two-year expiration date. But there is some thought that there is a federal requirement that gift cards must have a minimum of a five-year expiration date and that the federal requirement supersedes the Arkansas requirement. Is that the case, or is the Arkansas two-year minimum the legal requirement for gift cards?
Question 2: Are member credits considered legally the same as gift cards issued to outside individuals? If not, can a club establish a rule where a member’s unused pro shop credit is zeroed out each year (use it or lose it)?
Brief Response: With a few exceptions described in the opinion, gift cards or credit given that meet the federal definition for “gift certificate,” “store gift card,” or “general-use prepaid card” must either (1) have no expiration date, or (2) if it does expire, the expiration date must be at least five years after obtaining the card and be clearly stated on the card. But I lack sufficient facts to definitively conclude whether a particular gift card or credit given meets these requirements. I have, however, set forth in the opinion the legal analysis that one would apply in making that determination.
OPINION 2024-042
Requested by State Senator Clarke Tucker
Question: Act 237 of 2023 (the LEARNS Act) prohibits school districts from “adopt[ing] a personnel policy or incorporate[ing] terms into a personnel contract that provide more rights to personnel than those provided under state law….” The personnel policy for the Little Rock School District (LRSD) provides a hearing for “grievances,” which is defined broadly enough to include nonrenewals of employee contracts. Does this policy improperly provide more rights than “those provided under state law”?
Brief Response: As explained more fully in the opinion, the LRSD policy is generally consistent with state law, but it also contains some provisions that are inconsistent with state law. The latter provisions would provide more rights than those provided under state law, and therefore, are invalid.
OPINION 2024-049
Requested by Secretary of State John Thurston
Question: You state that your office has received inquiries regarding the use of electronic voter registration applications, created by a third-party non-government agency, that include an electronic signature. These applications are then either printed out and turned in or sent electronically to county clerks. You ask whether this practice is allowed under Arkansas law.
Brief Response: While an electronic signature or mark is generally valid under Arkansas law, the registration form must be created and distributed by the Secretary of State. A third-party organization cannot create and use a different form of its own to register voters.
OPINION 2024-050
Requested by Mr. Cedric L. King
Question: Request for review and certification of the popular name and ballot title of a proposed constitution amendment with the popular name, “The Arkansas Recreational Marijuana Amendment of 2024.”
Brief Response: Because of the issues identified in the opinion, my statutory duty is to reject your proposed popular name and ballot title, stating my reasons therefor, and to instruct you to “redesign” your proposed constitutional amendment, popular name, and ballot title.
OPINION 2024-055
Requested by Ms. Rebecca Worsham
Question: You have requested an opinion from this office regarding the Arkansas Freedom of Information Act (FOIA). Your request, which is made as the custodian’s attorney, is based on A.C.A. § 25-19-105(c)(3)(B)(i). This subdivision authorizes the custodian, requester, or the subject of certain employee-related records to seek an opinion from this office stating whether the custodian’s decision regarding the release of such records is consistent with the FOIA.
Brief Response: In my opinion, the custodian has correctly classified the investigative report, the letter notifying the superintendent of termination proceedings, the resignation letter, and the letter from the superintendent’s attorney. However, I do not have enough information to determine whether the custodian has properly classified the superintendent’s written response to the investigative findings as a job-performance record. If the superintendent’s response was not created at the behest of the employer, it should be classified as a personnel record.
It is also my opinion that the custodian has correctly decided to disclose all of the responsive records. The four-part test for release of employee evaluation or job-performance records appears to be met, and it does not appear that disclosure of the superintendent’s personnel records would constitute an unwarranted invasion of personal privacy. Because I do not know what information was redacted from the March 14 resignation letter, I cannot definitively say whether that redaction is consistent with the FOIA.
OPINION 2024-056
Requested by Governor Sarah Huckabee Sanders
Question 1: Are constitutional offices “agencies” within the general definition of “agencies” under the General Accounting and Budgetary Procedures Law (GABPL), which is codified at A.C.A § 19-4-102(a)(1)(A)?
Question 2: If not, which sections of the GABPL apply to constitutional offices?
Question 3: Are constitutional offices subject to the requirements in A.C.A. § 25-8-106?
Brief Response: Constitutional offices are not “agencies” generally subject to the GABPL for four reasons. First, the General Assembly usually is explicit if it intends to subject constitutional offices to regulation. Except for a few of its provisions, the GABPL does not explicitly apply to constitutional offices. Second, the provisions of the GABPL that explicitly apply to constitutional offices would not need to do so if constitutional offices were already generally subject to the GABPL. Third, the General Assembly has passed multiple pieces of legislation explicitly recognizing that constitutional offices are not generally subject to the GABPL. Fourth, if constitutional offices were generally subject to the GABPL, some of its provisions would likely be unconstitutional.
Similarly, A.C.A. § 25-8-106 does not apply to constitutional offices. First, it does not explicitly identify constitutional offices as being subject to its regulations. Second, § 25-8-106 would be constitutionally suspect if it applied to constitutional offices.