Opinion No.

The Honorable Bill Walters State Senator P.O. Box 280 Greenwood, Arkansas 72936-0280

Dear Senator Walters:

This is in response to your request, on behalf of a constituent, for an opinion on the legality of an ordinance separating the position of clerk/treasurer in a city of the first class into the two separate positions of elected clerk, and appointed treasurer. You state that "[s]ince approximately 1954 the Clerk Recorder/Treasurer position has been a combined position and has been an elected position. Recently, the City Council voted to separate the position and make one an elected position (clerk recorder) and one an appointed position (treasurer)." The question is whether the City Council has "the power to split this position if it has been and is an elected position."

It is my opinion that the answer to your question is "yes," but that such separation may not occur during the term for which the current clerk/treasurer has been elected. I have previously opined to this effect. See Ops. Att'y Gen. 96-328 and 95-187. State law authorizes cities of the first class to have an appointed treasurer. See A.C.A. §14-43-405. State law also alternatively authorizes a city council to combine the positions of clerk and treasurer, "allowing one person to assume the duties of both clerk and treasurer."¹ A.C.A. § 14-43-405. You indicate that this has been the practice in the city in question, until a recent vote passed to separate the positions. I opined in Opinion95-187 and also in 96-328 that the positions, once combined, may later be separated, and that the position of treasurer may be made appointive, but that this could not occur during the term of an elected clerk-treasurer. With that caveat, it is my opinion that the answer to your question is "yes."

The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elana C. Wills.

Sincerely,

WINSTON BRYANT Attorney General

WB:ECW/cyh

¹ The position of clerk must be elected. See A.C.A. §§ 14-43-313 and14-43-316 and Op. Att'y Gen. 95-187.