Opinion No. ( 1993 )

The Honorable Jean Edwards State Senator 8607 Earl Chadick Road Sherrill, AR 72152

Dear Senator Edwards:

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

When the Civil Service Commission in a first Class City creates a new rank in a police department, does 14-51-301(b)(A) (ii) mean that only individuals in the next lower rank can take the examination (i.e., the position of major is created by the city council, can only captains take the test for promotion)? What rank can take the examination?

In my opinion, the answer to your first question is "no." As will be explained below, I cannot provide a definite answer to your second question.

Arkansas Code Annotated § 14-51-301(b)(4)(A)(ii) (Cum. Supp. 1991) currently provides:

No person shall be eligible for examination for advancement from a lower to a higher rank until he shall have served at least one (1) year in the lower rank, except in case of emergency, which emergency shall be decided by the board.

I do not read this language to permit only those individuals in the next lower rank to take the examination for promotion to a higher rank. The above provision appears to require only that an individual have spent a year in whatever lower rank he or she is in prior to taking the examination for promotion to a higher rank, except in the case of an emergency as determined by the board. Thus, it seems that anyone who has served in a lower rank for at least one year and who possesses the qualifications for the higher rank in question may take the examination.

Please be advised, however, that Act 206 of 1993 amended the language of § 14-51-301(b)(4)(A)(ii) to read as follows:

No person shall be eligible for examination for advancement from lower ranks to higher ranks until that person shall have served at least one (1) year in the lower rank, except in case of emergency, which emergency shall be decided by the board. The board shall determine the rank or ranks eligible to be examined for advancement to the higher rank.

Under the new language of § 14-51-301(b)(4)(A)(ii), which became effective August 13, 1993, it is clearer that taking the examination for promotion to a higher rank is not necessarily restricted to individuals in the next lower rank. The Board of Civil Service Commissioners will apparently determine which ranks are eligible to be examined for advancement to the higher ranks. Accordingly, I am presently unable to state which ranks will be eligible to take the examination for any particular position.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Catherine Templeton.

Sincerely,

WINSTON BRYANT Attorney General

WB:cyh