Judges: DUSTIN McDANIEL, Attorney General
Filed Date: 2/22/2008
Status: Precedential
Modified Date: 7/5/2016
The Honorable Robert N. Jeffrey State Representative 181 Charlotte Ann Camden, Arkansas 71701-9452
Dear Representative Jeffrey:
I am writing in response to your request for an opinion regarding the following questions:
1. Is it permissible under Arkansas law for a public housing authority to establish and employ its own law enforcement agency?
2. If the answer is yes, would certified law enforcement officers, employed by the housing authority, have complete powers of arrest?
Section
(d)(2) "Public housing authority" means a [local] housing authority established under §
14-169-207 , a regional housing authority established under §14-169-304 , or a consolidated housing authority established under §14-169-401 [.]1
All varieties of public housing authority have been legislatively declared public bodies corporate and politic. See A.C.A. §§
[H]istorically the housing authorities throughout the country have consistently been held to be separate and independent bodies corporate. . . . Summing up, the statutes demonstrate that the housing authorities are autonomous entities that have the power to act in every field related to their work independently of the cities.
See, e.g., City of Fort Smith v. Fort Smith Housing Authority,
A Housing Authority is an agent of the state dealing with public health standards and falls squarely within the traditional police powers of the state.2 A city Housing authority does not operate *Page 3 within the scope of "municipal affairs" (i.e., those affecting, germane to or concerning the municipality and its government) as distinguished from those state affairs excepted in the Home Rule Act. 19-3002 [now A.C.A. § 14-1169-303 (Repl.1998)] sets forth the declaration of the necessity of the Housing Authority Act and clearly manifests a statewide rather than a municipal concern:
That there exists in the State insanitary or unsafe dwelling accommodations . . . that within the State there is a shortage of safe or sanitary dwelling accommodations . . . that the aforesaid conditions cause an increase in and spread of disease and crime and constitute a menace to the health, safety, morals and welfare of the residents of the State and impair economic values. (Emphasis added.)
Although a Housing Authority is authorized in a municipality (as well as in a county or by combinations), the benefit of its existence obviously spreads past the city (or county). In Hogue v. Housing Authority of North Little Rock,
201 Ark. 263 ,144 S.W.2d 49 (1940), we held the Housing Authority Act constitutionally valid. In doing so, we quoted with approval from Los Angeles v. Dockweiler,14 Cal.2d 417 ,94 P.2d 794 (1939), where that court found:Both reason and authorities support us that the proposed elimination of slums and the erection of safe and sanitary low rent dwelling units for persons of the prescribed income will do much to advance the general welfare and to protect *Page 4 the public safety and morals and are in fact and in law public purposes.
Powers of the Authority are vested in its Commissioners. No Commissioner of a city Authority may be an officer or employee of the city. 19-3005, 19-3007. A city Housing Authority constitutes a public body corporate and politic exercising essential governmental functions, having perpetual succession, the power to sue and be sued, to enter into contracts in exercise of its powers, to exercise the power of eminent domain, "to cooperate with the city, the county, the State or any political subdivision thereof in action taken" within the scope of its primary functions. It is in essence a separate Authority created to cooperate with the city or county as the case may be.
The current powers of a housing authority are set forth in subchapter 2 of title 14, chapter 169 (Repl. 1998).3 Section
*Page 5A housing authority shall constitute a public body corporate and politic, exercising exclusively public and essential governmental functions and having all the powers necessary or convenient to carry out and effectuate the purposes and provisions of this subchapter, including the following powers in addition to others granted in this subchapter:
(1) To sue and be sued;
(2) To have a seal and to alter the same at pleasure;
(3) To have perpetual succession;
(4) To make and execute contracts and other instruments necessary or convenient to the exercise of the powers of the authority; and
(5) To make and from time to time amend and repeal bylaws, rules, and regulations not inconsistent with this subchapter to carry into effect the powers and purposes of the authority;
(6) To invest any funds held in reserves or sinking funds, or any funds not required for immediate disbursement, in property or securities in which savings banks may legally invest funds subject to their control; and
(7) To purchase its bonds at a price not more than the principal amount thereof and accrued interest, all bonds so purchased to be cancelled;
(8) To exercise all or any part or combination of the powers granted in this section and §§
14-169-212 —14-169-218 and14-169-225 (b).
Conspicuously absent in this list of enumerated powers is any grant to a housing authority of the power to form its own law enforcement agency.4 Although one might read broadly as including such authority the grant in A.C.A. §
The "United States Housing Act of 1937," with its amendments, authorizes federal cooperation with states and local governments in the development of "decent, safe and sanitary dwellings for families of low income, in rural or urban communities" and in the corresponding elimination of "unsafe and insanitary housing *Page 6 conditions . . . that are injurious to the health, safety and morals of the citizens of the nation." Arkansas by
Act 298 of 1937 , the "Housing Authorities Act," created local Housing Authorities in the state and authorized local governmental units to enter into "cooperation agreements" as contemplated by the federal law.
Scroggins v. Kerr,
On March 12, 1940, appellant, Housing Authority (hereafter referred to as "Housing") was created by the City of Blytheville under the provisions of Secs. 19-3001 — 19-3074 Ark. Stats. 1947. In 1941 the City and Housing entered into a cooperation agreement under the terms of which Housing was to erect a low rent housing project in the City. Under this agreement appellee, City, agreed that it would "not levy, impose or charge any taxes, special assessments, service fees, charges or tolls against the project or against the Authority or with respect to the project and that it will furnish without cost to the Authority and the tenants of each project the usual municipal services and facilities which are or may be furnished without cost or charge to other dwellings and inhabitants in the City, including but not limited to fire, police and health protection and service, street maintenance and repair, garbage, trash and ash collection and disposal, street lighting on public streets within any project and the boundaries thereof and sewer services."
See also Scroggins, supra at 146 ("The Arkansas Housing Authorities Act (
In my opinion, under Arkansas law, a housing authority cannot establish its own law enforcement agency by employing individuals qualified to serve as "law enforcement officers" in that they have completed the training program contemplated at A.C.A. §
Having offered this interpretation of Arkansas law, I must note that various other jurisdictions have authorized housing authorities to form their own police forces. See, e.g., Williams v. Philadelphia HousingAuthority Police Dept.,
Assistant Attorney General Jack Druff prepared the foregoing opinion, which I hereby approve.
Sincerely,
DUSTIN McDANIEL Attorney General
(5) "Housing Authorities Act" means §§14-169-201 —14-169-205 ,14-169-207 —14-169-225 ,14-169-227 ,14-169-229 —14-169-240 , and14-169-804 ;(6) "Supplemental Housing Authorities Act" means §§
14-169-223 ,14-169-228 ,14-169-237 ,14-169-238 ,14-169-302 —14-169-313 ,14-169-501 —14-169-503 , and this act.
We find nothing . . . to indicate that the State has reserved any control over local housing authorities. The appellee is no more an agency of the State than is any other corporation as to which the State has done nothing except bring it into existence.
See also Arkansas Louisiana Gas Co. v. City of Little Rock,
In a New York case the court had before it the question of the relation of the housing authority to the State and the City. The court said: "The very name `authority' given to this type of public corporation imparts a distinct historical connotation of separateness and juridical distinction from the State and from the municipal corporations of the State." Ciulla v. State,77 N.Y.S. 2d 545 ,191 Misc. 528 (1948).
An authority shall constitute a public body, corporate and politic, exercising public powers of the Commonwealth as an agency thereof, which powers shall include all powers necessary or appropriate to carry out and effectuate the purpose and provisions of this act, including the following powers, in addition to others herein granted:
(ee) In a city of the second class, to appoint police officers who shall have the same rights, powers and duties as other peace officers in the Commonwealth with respect to the property and enforcing order on and adjacent to the grounds and buildings of the Authority: Provided, That said police officers complete the same course of instruction as is required for municipal polices by the act of June 18, 1974 (P.L. 359, No. 120), referred as the Municipal Police Education and Training Law.
Commissioner v. McDonald,
Scroggins v. Kerr , 217 Ark. 137 ( 1950 )
Fagan Electric Co. v. HOUSING AUTHORITY, ETC. , 216 Ark. 932 ( 1950 )
Edward R. Williams Angelynne Williams, H/w v. Philadelphia ... , 380 F.3d 751 ( 2004 )
United States v. Tommy E. Jones , 454 F.3d 642 ( 2006 )
Ciulla v. State , 191 Misc. 528 ( 1948 )