Attorney General's Monthly Opinions Digest

Indian tribes. Campaign finance. FOIA. Paid canvassers.

[Editor's Note: We think Arkansas Attorney General Tim Griffin's recently issued opinions from his office are 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 July 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 2024-023
Requested by State Representative Aaron Pilkington

Question 1: Under Arkansas law, would the terms of an agreement between a county government and a federally recognized Indian tribe be enforceable against the Indian tribe without an effective waiver of sovereign immunity written into the agreement?

Brief Response: Maybe. Indian tribes enjoy immunity from suit unless Congress has clearly authorized the suit or the tribe has expressly waived its immunity. A tribal waiver of immunity may appear in the transaction documents themselves or in the tribe’s governing documents.

Question 2: Under Arkansas law, would the terms of an agreement between a county government and an LLC whose sole member is a federally recognized Indian tribe be enforceable against the federally recognized Indian tribe.

Brief Response: Maybe. An Indian tribe’s sovereign immunity often extends to agencies, corporations, and other entities formed by the tribe. The tribal entity’s immunity may be limited or waived by the entity’s founding or governing documents, tribal laws, or transaction documents.
 

OPINION 2024-040
Requested by State Representative Mindy McAlindon

Question 1: Does the proposed Bella Vista ordinance conflict with or violate any current Arkansas laws relating to or concerning campaign finance or disclosure?

Question 2: Does the proposed Bella Vista ordinance conflict with or violate any Arkansas ethics laws or requirements?

Brief Response: For the reasons discussed in the opinion, the proposed Bella Vista ordinance does not conflict with or violate current Arkansas law concerning campaign finance or ethics.
 

OPINION 2024-053 
Requested by State Senator Linda Chesterfield

Question 1: If a canvasser solicits signatures for a petition as part of his or her employment duties, is the person a “paid canvasser” subject to the requirements in A.C.A. § 7-9-601(d)?

Question 2: If a canvasser solicits signatures for a petition as part of his or her employment duties, is the person a “paid canvasser” under A.C.A. § 7-9-109?

Brief Response: Yes to both. An employee who is paid to perform job duties, among which is soliciting for signatures, is paid “in exchange for” soliciting signatures.
 

OPINION 2024-054
Requested by State Representative Joey L. Carr

Question 1: Do the provisions of A.C.A. § 14-52-106 apply to part-time law-enforcement officers in any function or capacity?

Brief Response: Yes. Subdivision (a)(1) requires “[t]he head or chief of each police department [to] [g]rant each employee annual vacation leave of not less than fifteen (15) working days with full pay[.]” This applies to part-time law-enforcement officers.
 

Question 2: Does A.C.A. § 14-52-106 or any other Arkansas statute convey or provide certain or specific amounts of vacation leave to part-time law-enforcement officers employed by a municipal police department?

Brief Response: Yes. As discussed in the opinion, A.C.A. § 14-52-106(a)(1) states that “each employee” of a municipal police department must receive “annual vacation leave of not less than fifteen (15) working days with full pay[.]” I have found no other statute that would control.
 

OPINION 2024-058
Requested by State Representative Les A. Warren

Question: In 1989, the General Assembly enacted A.C.A. § 14-61-110, prohibiting city directors and mayors from “receiv[ing] any compensation for [their] services unless authorized by the voters.” If the voters approved compensation, the “board of directors, by ordinance, shall set such compensation.” But two years later, in 1991, the General Assembly amended another statute—A.C.A. § 14-47-114(a)—authorizing the “board of directors of any city with the city manager form of government [to] provide by ordinance for the compensation of board members.” Section 14-47-114 does not indicate that authorization by the voters is required before a compensation-setting ordinance may be passed. Further, the General Assembly expressly provided that “[a]ll laws and parts of laws in conflict with [§ 14-47-114(a)] are hereby repealed.” Does an irreconcilable conflict exist between these two statutes?

Brief Response: In my opinion, the two statutes do not irreconcilably conflict. While the “board of directors…may provide by ordinance for the compensation of board members,” the voters must first authorize this compensation before the board sets the compensation by ordinance. In other words, § 14-47-114 does not preclude voter approval.
 

OPINION 2024-064
Requested by Mr. Matt Durrett, Prosecuting Attorney 

Question: Under A.C.A. § 13-4-409, an “item” that is “in the possession of a county sheriff’s office pursuant to a felony” court case or investigation must be retained for a period of time set by statute, depending on the type of potential crime. You indicate that a county sheriff’s office often collects many “items,” such as “a victim’s personal effects,” that have “no evidentiary value [in a case] at all.” You ask whether, under A.C.A. § 13-4-409(a), a sheriff’s office must retain these types of items for the statutorily prescribed time, or whether they can be released under a court order.

Brief Response: Under A.C.A. § 13-4-409, “items” collected and held by the sheriff’s office “in accordance with,” “as authorized by,” or “in carrying out” a felony court case or investigation must be retained and then later disposed of or returned to the owner in compliance with the applicable statutes. Only after the time periods described in A.C.A. § 13-4-409 “have lapsed” may a “noncontraband” item be returned to “its owner” and a “contraband” item be disposed of or destroyed. I have found no law that would allow a court to alter the retention periods in the statute.
 

OPINION 2024-066
Requested by State Senator Alan Clark

Question: You indicate that the Fort Smith School District has a policy that prohibits students from playing athletics if they are entering seventh through twelfth grades and transferring from one public school to another within the district. You indicate that while the district concedes that a similar policy that applies to interdistrict transfers would conflict with Act 768 of 2023, the district “contends that Act 768 does not apply to intradistrict transfers.” You ask whether Act 768 applies to both types of transfers.

Brief Response: Act 768 applies equally to interdistrict and intradistrict transfers. Its prohibitions on discriminating against transfer students protect students “who transfer[] to another public school or a nonresident school district.” Thus, if a student transfers from one public school “to another public school”—even within the same district—Act 768’s protections apply.
 

OPINION 2024-068
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.
 

OPINION 2024-070
Requested by Mr. Robert Steinbuch

Question: Request for review and certification of the popular name and ballot title of a proposed constitutional amendment with the popular name, “The Arkansas Government Disclosure Amendment.”

Brief Response: The popular name and ballot title are substituted and certified.
 

OPINION 2024-071
Requested by Ms. Phyllis Harrington

Question: Is the custodian’s decision to release “personnel or evaluation records” as redacted consistent with the FOIA?

Brief Response: It is the statutory duty of this office under A.C.A. § 25-19-105(c)(3)(B) to state whether a custodian’s decision to release “personnel or evaluation records” is consistent with the FOIA. As custodian of the records, it appears that the Bryant Public School District has determined that (1) the information you have requested is both personnel records and employee-evaluation or job-performance records and (2) that the employee-evaluation and job-performance records should be withheld, while the personnel records should be released with certain redactions. But you have not provided me with copies of any of the records. Thus, I cannot determine whether the District’s decision to classify, redact, and release is consistent with the FOIA. I can only set forth the legal standards that the custodian must apply to determine whether to release the records in question.