Attorney General's March Opinions Digest
COVID-19 vaccinations. Garland County. Pine Bluff Convention Center. FOIA. And more!
[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 March 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.
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OPINION 2023-088
Requested by State Senator Joshua Paul Bryant
Question 1: Under Act 4 of 2023, 1st Extraordinary Session, as codified in A.C.A. § 20-7-146(c), may a covered state agency or entity contractually partner with a private business for the purpose of offering education, employment, entry, or services to the public if that private business requires a COVID-19 vaccination, booster, or both as a condition to receiving the state’s offer?
Brief Response: Generally, yes. A.C.A. § 20-7-146(c) does not prohibit government-contracting private businesses from requiring a COVID-19 vaccination, booster, or both as a condition to providing its services. But a court may find the state violated the statute if the state intentionally uses private businesses to de facto require a COVID-19 vaccination, booster, or both.
Question 2: Under A.C.A. § 20-7-144(c), may a covered state agency, entity, or political subdivision of the state contractually partner with a private business to offer public services—such as education—if that private business requires a face mask, face shield, or other face covering as a condition to receiving the state’s offer?
Brief Response: Generally, yes. A.C.A. § 20-7-144(c) does not prohibit government-contracting private businesses from requiring a face mask, face shield, or other face covering as a condition to providing its services. But a court may find the state violated the statute if the state intentionally uses private businesses to de facto require a face mask, face shield, or other covering.
OPINION 2023-097
Requested by Mr. Gene Haley, Garland County Election Commission Chair
Question 1: Does the Governor have to declare the Garland County Treasurer’s office vacant?
Brief Response: No. The quorum court declares the vacancy.
Question 2: Does the process require the Governor to proclaim a “special filing period” for this race, or would the county political party nominate candidates at a convention after the primary?
Brief Response: Neither. The quorum court fills the vacancy by appointment, and that appointment serves until the next general election when a successor is elected.
Question 3: The Treasurer’s term ends December 31, 2026. The Arkansas Constitution, Amendment 29, § 4 and A.C.A. § 14-14-1310(a)(2)(D) set different methods to determine the length of the appointee’s term. Amendment 29 directs that the appointee serves until the next general election. But § 14-14-1310 directs that the appointee serves the entire unexpired term of the previous office holder. Which is the appropriate governing authority for this situation, and how long will the appointee serve?
Brief Response: As explained in the opinion, the two provisions can be read harmoniously, jointly requiring that the appointee serve until a successor is elected at the next general election (which occurs in 2024) and begins serving on January 1, 2025.
Question 4: The Treasurer has indicated that he intends to run for election to the Garland County Quorum Court upon his resignation as county treasurer. The Arkansas Constitution, Article 7, § 53 and A.C.A. § 14-14-115 prohibit certain county officials, including county treasurers, from being appointed or elected to any civil office in this state during the term for which the county official has been elected. The justice of the peace elected to this seat would take office on January 1, 2025, overlapping with the unexpired term of the county treasurer’s office. Would these provisions prevent the former Treasurer from being elected as a justice of the peace? Does a resignation from an elected office terminate the original elected term?
Brief Response: Arkansas law prohibits the former county treasurer from serving as a justice of the peace during the time for which he was originally elected to serve as treasurer.
OPINION 2024-002
Requested by State Representative Kenneth B. Ferguson
Question 1: Pursuant to the Advertising and Promotion Commission Act (the “Act”), is the Pine Bluff Advertising and Promotion Commission (“A&P Commission”) legally obligated to fund the Pine Bluff Convention Center?
Brief Response: The A&P Commission is not legally obligated to fund the Pine Bluff Convention Center, even though it can use funds collected under the Act (“A&P funds”) to operate and maintain the convention center. Instead, the A&P Commission has multiple options for A&P funds under A.C.A. § 26-75-606.
Question 2: Can the mayor and/or city council enact an ordinance mandating that the A&P Commission fund the Pine Bluff Convention Center with A&P funds?
Brief Response: They cannot mandate the use of the A&P funds. Section 26-75-606(a)(2)(A) states that the A&P Commission “is the body that determines the use of the city’s [A&P funds].” While nothing in the Act provides any explicit authority for the mayor or city council to direct how A&P funds are used, accountability measures are built into the Act. Two of the seven members of the A&P Commission are members of the city council, and four members are selected by the city council. The city’s chief administrator appoints the final member of the A&P Commission, with approval by the city council.
Question 3: Do the commissioners of the A&P Commission have sole authority to determine the use of A&P funds, as long as the use of funds does not violate A.C.A. § 26-75-606?
Brief Response: The A&P Commission has the exclusive authority to determine the use of A&P funds. Those funds have to be used for one of the options discussed in response to your first question. Section 26-75-606 further specifies that the A&P funds cannot be used for (1) general capital improvements for the city or county, (2) general operating costs for the city or county, or (3) general funding for the chamber of commerce or any civic group.
OPINION 2024-032
Requested by State Representative Brian S. Evans
Question 1: Would the lease and/or sublease discussed herein violate Article 12, § 5 of the Arkansas Constitution?
Brief Response: As long as the lease and sublease are supported by adequate consideration, they would not violate Article 12, § 5 of the Arkansas Constitution. The facts you have provided suggest that the lease and sublease are likely supported by adequate consideration, but this is ultimately a factual question that is beyond the scope of an Attorney General opinion.
Question 2: Assuming that the City’s lease agreement with the Financial Institution had no interest component and no interest payments of any kind, would the lease constitute a form of financing and therefore violate Amendment 78 of the Arkansas Constitution and other applicable law on municipal short-term financing?
Brief Response: For reasons explained in the opinion, the answer to this question is not clear.
Question 3: Assuming that the sublease payments from the College are dedicated by City Council legislation to pay the City’s lease payments to the Financial Institution and assuming that the City’s lease with the Financial Institution has a clause that would allow the City to withdraw from the lease at any time, would the City’s lease with the Financial Institution violate Article 12, § 4 of the Arkansas Constitution?
Brief Response: For reasons explained in the opinion, if the city pledges payment under the contract solely from the sublease payments the city receives from the college, a court could find that the contract does not offend Article 12, § 4.
Question 4: Would the lease and sublease discussed herein constitute a valid public purpose? (You have asked me to assume, for purposes of this question, that the City Council has formally designated the lease and sublease to be in the public benefit and to further several specific public purposes.)
Brief Response: Based on the information you have provided, I believe a court would likely defer to the city council’s determination that that the lease meets the public-purpose requirement.
OPINION 2024-033
Requested by Mr. Bill Kopsky
Question: Request for review and certification of the popular name and ballot title of a proposed constitutional amendment with the popular name, “Arkansas Educational Rights Amendment of 2024.”
Brief Response: The popular name and ballot title are substituted and certified.
OPINION 2024-034
Requested by Ms. Elizabeth Robben Murray
Question: Request for review and certification of the popular name and ballot title of a proposed constitutional amendment with the popular name, “A constitutional amendment requiring local voter approval in a countywide special election for any new casino licenses and repealing authority to issue a casino license in Pope County, Arkansas.”
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 2024-041
Requested by Mr. Richard “Chris” Madison, City Attorney, City of Alexander
Question: The City of Alexander has received a Freedom of Information Act (“FOIA”) request for records concerning the termination of a former police officer. The Alexander City Attorney asks if his decision to release certain “internal affairs investigation files” but withhold a termination letter and two written reprimands in response to the request is consistent with the FOIA.
Brief Response: The termination letter and two written reprimands are best classified as employee-evaluation records. The termination letter and the January written reprimand cannot be disclosed because, based on the facts the custodian has provided, the termination is not administratively final, and the January reprimand does not indicate the employee was suspended or terminated. But I am missing important information concerning the finality of the disciplinary action of the December 2023 written reprimand and any of the records considered “internal affairs investigation files” that the custodian has determined should be disclosed. Therefore, I cannot determine whether the December 2023 written reprimand or the “internal affairs investigation files” should be disclosed under the FOIA.
OPINION 2024-043
Requested by Ms. Candice Foscue
Question: Is the custodian’s decision to release redacted personnel records and employee evaluations of a former employee of the Arkansas State Crime Lab consistent with the Freedom of Information Act (“FOIA”)?
Brief Response: In my opinion, the custodian’s decision to release these records is consistent with the FOIA. The custodian’s decision to redact certain information is also consistent with the FOIA. I cannot opine on whether the custodian’s decision to redact the former employee’s grade point average is consistent with A.C.A. § 25-19-105(b)(2) because that exception is outside the scope of the authority the General Assembly has vested in the Attorney General under the FOIA.
OPINION 2024-045
Requested by Mr. Mark Murphey Henry
Question: Benton County has received a Freedom of Information Act (“FOIA”) request for records relevant to whether a former employee voluntarily resigned from her position with the Benton County Prosecutor’s Office. The former employee’s attorney asks whether a memorandum dated June 20, 2022, should be released in response to the FOIA request.
Brief Response: It is the statutory duty of this office under A.C.A. § 25-19-105(c)(3)(B) to state whether the custodian’s decision regarding the release of “personnel or evaluation records” is consistent with the FOIA. This office is not authorized to make that decision for the custodian. In this case, it is not apparent from the records provided whether the custodian has made a decision to disclose the memorandum in response to the FOIA request. Therefore, given this limited mandate, this office can only set forth the standards the custodian must apply in determining whether to release the memorandum.
OPINION 2024-046
Requested by Ms. Elizabeth Robben Murray
Question: Request for review and certification of the popular name and ballot title of a proposed constitutional amendment with the popular name, “An amendment requiring local voter approval in a countywide special election for any new casino licenses and repealing authority to issue a casino license in Pope County, Arkansas.”
Brief Response: The popular name and ballot title are substituted and certified.
OPINION 2024-047
Requested by State Senator Mark Johnson
Question: You ask if motor vehicle leasing companies that “operate distinctly from affiliated manufacturers” and that are “separate entit[ies] from a ‘manufacturer’…under A.C.A. § 23-112-403 [may] do business in Arkansas.”
Brief Response: The answer to your question turns on whether the affiliated manufacturers (1) control the motor vehicle leasing companies as agents, such as by managing their daily operations, or (2) have authorized the leasing companies to be representatives acting on behalf of or standing for the manufacturers. In short, if the leasing companies are wholly independent of the manufacturers, then they likely can lease motor vehicles to Arkansas consumers. But I cannot make a factual determination regarding these matters because I am not a factfinder when issuing opinions.