Opinion No.

The Honorable Michael Lamoureux State Representative P.O. Box 1064 Russellville, AR 72811-1064

Dear Representative Lamoureux:

You have presented the following question for my opinion:

Does the term "public servant," as used in A.C.A. § 5-52-107, apply to non-elected public employees, supervisors, and department heads, as well as to elected public officials?

RESPONSE

It is my opinion that the term "public servant," as used in A.C.A. §5-52-107, does apply to non-elected public employees, supervisors, and department heads, as well as to elected public officials.

A.C.A. § 5-52-107 states:

(a) A person commits the offense of abuse of office if, being a public servant and with the purpose of benefiting in a pecuniary fashion himself or another person or of harming another person, he knowingly commits an unauthorized act which purports to be an act of his office or omits to perform a duty imposed on him by law or clearly inherent in the nature of his office.

(b) Abuse of office is a Class B misdemeanor.

A.C.A. § 5-52-107 (emphasis added).

The above-quoted provision is part of the criminal code. The term "public servant" is defined, for purposes of the criminal code, in A.C.A. §5-1-102, which states:

As used in this code, unless the context otherwise requires:

* * *

(16) "Public servant" means:

(A) Any officer or employee of this state or of any political subdivision thereof; or

(B) Any person exercising the functions of any such officer or employee; or

(C) Any person acting as an adviser, consultant, or otherwise in performing any governmental function but not including witnesses; or

(D) Any person elected, appointed, or otherwise designated to become a public servant although not yet occupying that position;

A.C.A. § 5-1-102(16).

This definition of "public servant" unequivocally includes non-elected public employees and other individuals performing governmental functions, as well as elected officers. Clearly, supervisors and department heads would be included in this group.

Assistant Attorney General Suzanne Antley prepared the foregoing opinion, which I hereby approve.

Sincerely,

MIKE BEEBE Attorney General