Judges: MIKE BEEBE, Attorney General
Filed Date: 8/22/2005
Status: Precedential
Modified Date: 7/5/2016
The Honorable Shirley Borhauer State Representative 23 Kenilworth Drive Bella Vista, AR 72714
Dear Representative Borhauer:
I am writing in response to your request for an opinion on behalf of a constituent on the following matter:
Can a local Chief of Police hold that position and be on the City Council at the same time?
RESPONSE
No. In my opinion, such dual service would run afoul of the common law doctrine of incompatibility.
Your question raises issues of dual service. Prohibitions on dual service may be of constitutional, statutory or common law basis.Byrd v. State,
In my opinion, there is no constitutional prohibition to the proposed dual service.
Arkansas Code Annotated §
In my opinion, however, the dual serviced proposed in your request for an opinion would run afoul of the common law doctrine of incompatibility. I have described the common law doctrine of incompatibility as follows:
Under this doctrine, it is impermissible for any person to hold two offices that are "incompatible." See Thompson v. Roberts,
333 Ark. 544 ,970 S.W.2d 239 (1998). The Arkansas Supreme Court has stated that two offices are "incompatible" if "there is a conflict of interests." Byrd v. State,240 Ark. 743 ,745 ,402 S.W.2d 121 (1966). A conflict of interests exists in situations (among others) "where one office is subordinate to the other." Id. The Court has also described the incompatibility of two offices as situations in which "the discharge of the duties of the one conflict[s] with the duties of the other, to the detriment of the public good," State ex rel Murphy v. Townsend,72 Ark. 180 (1904), and as situations in which "one [office] is subordinate to the other, and subject in some degree to the supervisory power of its incumbent, or where the incumbent of one office has the power to remove the incumbent of the other or to audit the accounts of the other." Tappan v. Helena Fed. Savings Loan Assn.,193 Ark. 1023 ,103 S.W.2d 458 (1937). Accord, Thompson v. Roberts,333 Ark. 544 ,970 S.W.2d 239 (1998).
Op. Att'y Gen.
The doctrine of incompatibility applies when a single individual attempts to hold two "offices" simultaneously.1 An "office" is characterized by factors such as the tenure and compensation being set by law, the requirement of an oath, a bond, and the exercise of some portion of the state's sovereign power. See Op. Att'y Gen.
As noted above, my predecessors have opined that it would be a violation of the doctrine of incompatibility for a member of the city council to also serve as a police officer. Ops. Att'y Gen.
Although certain aspects of service on the police department in some cities . . . are governed by local civil service commissions, and are in general organized under the superintendence of the mayor (A.C.A. §
14-52-101 ), it is my opinion that supervisory authority exists on the part of the council even if it is indirect. Vacancies on the civil service commission are filled by the city council. A.C.A. §14-51-211 . The city council is responsible for passing on matters involving funding of the police department. A.C.A. §14-43-502 (b)(1). These factors alone, in my opinion, give rise to an incompatibility of offices[.]
Op. Att'y Gen.
Assistant Attorney General Joel DiPippa prepared the foregoing opinion, which I hereby approve.
Sincerely,
MIKE BEEBE Attorney General
MB:JMD/cyh