Opinion No. ( 1993 )

The Honorable Dan Harmon Prosecuting Attorney Seventh Judicial District Post Office Box 999 Benton, AR 72018

Dear Mr. Harmon:

This is in response to your request for an opinion on the following questions:

1. What is the legal definition of "settlements" as used in A.C.A. § 14-263-105?

2. If "settlements" means profits, is the hospital required to turn over those funds to the county treasurer on a quarterly or regular basis?

3. Is A.C.A. § 14-263-105 permissive or mandatory on the administrative officer or board?

The provision at issue in your question is codified at A.C.A. §14-263-105(e) (1987) and reads as follows:

The right of the administrative officer or board to make quarterly reports and settlements to the county treasurer is expressly conferred by this chapter.

In my opinion, the answer to your first question is that the term "settlement," as used in A.C.A. § 14-263-105(e) (1987), refers to a report or an accounting of all moneys and funds that have been received by the board of governors of the county hospital or its administrative officer, in addition to all of the expenditures made by these entities.

The United States Supreme Court has stated that the word "settlement," as used in connection with public transactions and accounts, has been used from the beginning to describe administrative determination of the amount due. Illinois SuretyCo. v. United States, 240 U.S. 214 (1916). An early Arkansas case refers to "settlements" as follows:

By Rev. St. c. 41, officers chargeable with money belonging to any county are required to settle for the same at each term of the county court, and, on a failure to do so, the court is to make a settlement of the amount due from such officer from the best information they can obtain. . . . By the 41 chap. Rev. Stat. it is made the duty of county courts to settle and adjust the accounts of officers chargeable with county funds, who may have failed to settle and pay over the amount with which they are chargeable, at the time and in the manner prescribed by law.

Trice v. Crittenden County, 7 Ark. (2 Eng.) 159 (1846).

With regard to your specific question, it appears that the term "settlement," as used in A.C.A. § 14-263-105(e), refers to an accounting of all county funds that are in the hands of the board of governors of the county hospital or its administrative officer and a determination of the amount due from the board to the county treasurer.

In response to your second question, the term "settlements," as used in A.C.A. § 14-263-105(e), most likely includes profits since these would be monies in the hands of the board of governors of the county hospital or its administrative officer; thus, they would be considered county funds. Accordingly, profits would be included in the settlement or accounting made to the county treasurer. However, for the reasons stated below in response to your third question, it does not appear that the board of governors of the county hospital or its administrative officer is required to turn over such funds.

In response to your third question, it is my opinion that the provisions in A.C.A. § 14-263-105(e) are most likely permissive as they relate to the board o governors of the county hospital or its administrative officer. In fact, this office has previously opined that this provision is permissive, rather than mandatory, in nature. See Op. Att'y Gen. No. 86-537 (copy enclosed). While that Opinion addresses the predecessor to A.C.A. § 14-263-105(e), Ark. Stat. Ann. § 17-1503, both provisions are virtually identical. The use of the phrase "right of the administrative officer or board" in A.C.A. § 14-263-105(e) [emphasis added] also indicates that the section empowers, but does not require, the board or its administrative officer to make settlements to the county treasurer.

An argument can be made, however, that A.C.A. § 14-14-1313 (1987) requires the board of governors and its administrative officer to turn over all funds received, and that this general provision governs the more specific provision codified at A.C.A. §14-263-105(e). The statute set forth at A.C.A. § 14-14-1313 (1987) reads as follows:

All public funds coming into the possession of any officer of the county shall be remitted to the county treasury in a manner prescribed by law.

Since the boards of governors of county hospitals are "officers" of the county, this provision, arguably, would apply to the issue in your third question. However, it is my opinion that since A.C.A. § 14-263-105 was passed after A.C.A. § 14-14-1313, the legislature intended for the more specific statute, A.C.A. §14-263-105, to govern this issue.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Nancy A. Hall.

Sincerely,

WINSTON BRYANT Attorney General

WB:cyh