Opinion No. ( 1991 )

The Honorable Luther "Lu" Hardin State Senator 309 South Vancouver Russellville, Arkansas 72801

Dear Senator Hardin:

This is in response to your request for an opinion on whether it is a violation of Arkansas Constitution, Art. 5, § 10, for a city attorney of a second class city who was appointed city attorney several years prior to taking office as a state senator to continue to serve as city attorney following election to the legislature. You have attached a copy of Williams v. Douglas,251 Ark. 555, 473 S.W.2d 896 (1971), to your request.

It is my opinion that the answer to your specific question is "no." It is not a violation of Art. 5, § 10 for a city attorney to continue to serve as a city attorney after being elected to the legislature.

Arkansas Constitution, Art. 5, § 10 provides that:

No Senator or Representative shall, during the term for which he shall have been elected, be appointed or elected to any civil office under this state. [Emphasis added.]

It was made clear in Williams v. Douglas, id., that this prohibition is upon a member of the general assembly after he isseated. Id. at 558. Because under the facts you describe, the legislator was a city attorney prior to taking office as a senator, the prohibition above does not apply.

Because your request dealt specifically with Art. 5, § 10, this opinion does not address in detail the applicability of any other constitutional provision. We should note, however, that Article 5, § 7 of the constitution, and possibly Article 4, § 2, may prohibit concurrent service as city attorney and state senator. An abbreviated review suggests that such dual service might be subject to constitutional challenge.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elana L. Cunningham.

Sincerely,

WINSTON BRYANT Attorney General

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