Opinion No.

The Honorable Buddy Blair State Representative 500 North 18th St. Fort Smith, AR 72901-3306

Dear Representative Blair:

I am writing in response to your request for my opinion on the following questions:

1. May a governmental entity utilize public funds to pay legal fees of elected or appointed public officials who may be sued for actions taken outside the scope of their official duties?

2. Would four separate votes taken on a common resolution authorizing such payments be legal?

These questions relate to the following reported factual background:

During a public meeting of the Forth Smith Board of Directors (the "Board") in December 2005, the Board approved four separate resolutions which provided for either a legal defense or the reimbursement of all legal fees and expenses, to include any judgment, in connection with defending themselves in an on-going civil suit. Based upon the passage of the resolution, the City of Fort Smith is making a grant to the named individuals, apparently in violation of Article 12 and Article 16 of the Arkansas Constitution. Obviously, this may also be an issue for the Arkansas Ethics Commission to consider.

In the matter related to the voting procedure utilized to ensure passage of the resolutions, the City Director named as an interested party in each resolution abstained from voting only on the resolution in which they were named party. While this process ensured a quorum, this very process would appear to circumvent the spirit of the law and lend itself to trading of votes.

RESPONSE

I have received correspondence from counsel that represents the City of Fort Smith and various individual city employees and board members in a case captioned Robert A. Johnson v. The Cityof Fort Smith, Arkansas, et al., United States District Court for the Western District of Arkansas, Case No. CV-05-2136. Counsel informs me that the topic of your request "is material to the above styled, pending litigation." In order to avoid encroaching upon exclusively judicial prerogatives, it has long been the policy of this executive-branch office to avoid rendering purely advisory opinions on matters that are pending in the courts for resolution. Accordingly, I must respectfully decline to address your questions.

Assistant Attorney General Jack Druff prepared the foregoing opinion, which I hereby approve.

Sincerely,

MIKE BEEBE Attorney General

MB/JHD:cyh