Opinion No.

The Honorable Allen Gordon State Senator P.O. Box 558 Morrilton, Arkansas 72110

Dear Senator Gordon:

This is in response to your request for an opinion, on behalf of Mr. Cleece M. Silvers, regarding the term of office of the present Recorder-Treasurer of Fairfield Bay. In Mr. Silver's correspondence to you, a copy of which was submitted with your request, he notes that Fairfield Bay was incorporated in July, 1993, and has a mayor-council form of government. Mr. Silvers also notes that an election was held in 1993, shortly after the incorporation had taken place, and that the mayor and aldermen were elected for a term of one year and thus will face re-election in the regular election in November, 1994. With respect to the office of recorder-treasurer, however, Mr. Silvers states that "it was decided that the recorder-treasurer would be elected for the ``normal' term of office, four years." As to that decision, Mr. Silvers has asked for an opinion on the following question:

Why should not the Recorder-Treasurer [of Fairfield Bay] be required to run in November, 1994, as the other officers of the city are required to do?

It is my understanding that Fairfield Bay is a city of the second class. Pursuant to A.C.A. § 14-44-114 (1987), the city council of any city of the second class may, if it deems it to be in the best interests of the city and upon passage of an ordinance by the majority vote of the council, combine the offices of recorder and treasurer into that of "recorder-treasurer," thereby authorizing one person to hold the position. I assume that this is what occurred in Fairfield Bay after its incorporation.¹ It is stated in A.C.A. § 14-44-115 (1987) that, "on the Tuesday following the first Monday in November 1972, and every four (4) years thereafter," the voters of cities of the second class are to elect a recorder or a recorder-treasurer (if the offices have been combined pursuant to § 14-44-114) for a term of four (4) years.² As for the office of mayor, A.C.A. § 14-44-105 (1987) provides that the voters of cities of the second class "shall, on the Tuesday following the first Monday in November 1966, and every four (4) years thereafter, elect a mayor for a term of four (4) years." With respect to the position of alderman, A.C.A. §14-44-103(a)(1) (1987) dictates that, "on the Tuesday following the first Monday in November 1982, and every two (2) years thereafter," the qualified voters of second class cities shall elect for each of the wards of the cities two aldermen. Thus, the term of office of a mayor and recorder-treasurer in a second class city is four years, while the term of office of an alderman is two years. In order to determine when the terms of office for the present officeholders in Fairfield Bay expire, it is, however, necessary to consider the foregoing statutes in conjunction with A.C.A. § 14-38-108 (1987), which pertains to the election of officers in a newly incorporated area. Section14-38-108 provides:

(a) Unless the agent of the petitioners, within thirty (30) days after a transcript shall be delivered as provided in § 14-38-104, shall be notified of a complaint having been made to the circuit court of the county, or a judge thereof, then, at the end of the thirty (30) days after the dismissal of the complaint, the agent shall give public notice, by posting a notice at three (3) or more public places within the limits of the city or incorporated town, of the time and place of holding the first election for officers of the city or incorporated town.

(b) The election shall be conducted and the officers elected and qualified in the manner prescribed by law in like cases.

(c) If the election shall be held at any other time than that prescribed by law for the regular election of the officers, the officers elected shall continue in office so long and in like manner as if they had been elected at the preceding period of the regular election. [Emphasis added.]

As the first election after the incorporation of Fairfield Bay was held in 1993, and thus at a time other than that prescribed by law for the regular election of the officers, subparagraph (c) of A.C.A. § 14-38-108, as set forth above, dictates that the officers of Fairfield Bay which were elected in 1993 shall continue in office so long "as if they had been elected at the preceding period of the regular election." In determining when the term of office for the current Mayor of Fairfield Bay expires, it is therefore necessary to consult A.C.A. § 14-44-105, as mentioned above, which provides that beginning in 1966, and every four years thereafter, the voters of a second class city shall elect a mayor for a term of four years. Under this formula, the "regular election" for mayor would have last occurred in 1990 and thus the term of the current mayor is to calculated as if he had been elected in 1990; this would mean that the term of office for the present Mayor of Fairfield Bay expires in 1994. With respect to the aldermen elected in 1993 in Fairfield Bay, their terms of office will also expire in 1994, as A.C.A. § 14-44-103 provides that they shall serve two-year terms and the last "regular election" (which is the time at which it is to be considered that they were elected) according to the statute would have been in 1992. Finally, with respect to the current Recorder-Treasurer of Fairfield Bay, who was also elected in 1993, his term of office would be for four years (A.C.A. §14-44-115), and A.C.A. § 14-38-108(c) dictates that he shall be treated as if he were elected in 1992, the "preceding period of the regular election" for such officials. Accordingly, the term of office of the recorder-treasurer does not expire until 1996.

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

Sincerely,

WINSTON BRYANT Attorney General

WB:NAH/cyh

¹ I assume that Fairfield Bay was incorporated pursuant to A.C.A. § 14-38-101 et seq. (1987).

² As for a city treasurer in a city of the second class where the treasurer is not also the recorder, see Op. Att'y Gen. No.94-263, which concludes that the term of office for such an official is two years.