Judges: MIKE BEEBE, Attorney General
Filed Date: 5/24/2004
Status: Precedential
Modified Date: 7/5/2016
Mr. Eddy Easley, Prosecuting Attorney Seventh Judicial District 215 East Highland, Suite 4 Malvern, AR 72104
Dear Mr. Easley:
You have requested my opinion concerning the position of director of a drug task force that consists of several counties and municipalities.
You indicate that the task force was formed by an interlocal agreement among the various entities, and is funded by a federal grant, which is administered by the Arkansas Department of Finance and Administration. It is my understanding the drug task force also receives state matching funds, but that the director's salary is paid entirely from federal funds. A board of directors consisting of sheriffs, chiefs of police, and prosecutors governs the task force. You state that the person holding the position of director would be an "employee" either of one of the counties or municipalities, or of a prosecuting attorney's office. It is my understanding that the intent is that this individual would be on that entity's payroll and would receive benefits from that entity. The entity would pay the salary directly to the director, and would be reimbursed from the grant funds.
The drug task force you have described appears to be the type of drug task force that is authorized by the Anti-Drug Abuse Act of 1986, a federal law (P.L.
You state that a member of the Arkansas House of Representatives has applied for the position of director. It is my understanding that this individual is also running for re-election to the House.
Your questions are:
Is there any constitutional or statutory provision that would prohibit this person from serving in the legislature and being employed as director of the drug task force? Would it matter whether the person was an employee of a county, municipality or prosecutor's office?
RESPONSE
It is my opinion that service by a sitting legislator as director of the drug task force you have described is not prohibited by any state constitutional or statutory provision. However, the individual may be prohibited by the federal Hatch Act from running for re-election to the House. If the legislator is chosen for the position and continues to serve in the legislature (either because the Hatch Act does not apply or because he is merely serving out his current term, which the Hatch Act allows), it is my opinion that under common law principles concerning conflicts of interest, he must abstain from participating in any decision-making that might divide his allegiance between the various interests that are at stake. These conclusions are explained more fully below.
Constitutional Prohibitions
Your question implicates Article
Statutory Prohibitions
Your question also implicates the provisions of A.C.A. §
(a)(1) Subject to any restrictions or conditions prescribed by the Arkansas Constitution, no person elected to a constitutional office may, after being elected to the constitutional office and during the term for which elected, enter into employment:
(A) With any state agency[.]
A.C.A. §
The term "constitutional office," as used in A.C.A. §
The term "state agency" is defined for purposes of A.C.A. §
(2) "State agency" means every board, commission, department, division, institution, and other office of state government whether located within the legislative, executive, or judicial branch of government and including state-supported colleges and universities.
A.C.A. §
As an initial matter, I note that I need not address the question of whether counties, cities, and prosecuting attorneys' offices are "state agencies" within the meaning of A.C.A. §
The question, therefore, is whether the drug task force is a "state agency," within the meaning of A.C.A. §
The definition of the term "state agency," quoted above, is not particularly helpful in determining whether the drug task force is a state agency, nor has the Arkansas Supreme Court had occasion to interpret the term, as used in A.C.A. §
In my opinion, the lack of state involvement with and control over the drug task forces that are created under the authority of the federal Anti-Drug Abuse Act likewise indicates that these drug task forces are not state agencies for purposes of A.C.A. §
I must at this point distinguish the holding of South Central Ark. DrugTask Force v. Ray,
One other factor that bolsters my conclusion that A.C.A. §
The "Hatch Act"
Although it is my opinion that the dual service in question is not prohibited by state constitutional or statutory law, the individual in question may nevertheless be prohibited by the federal "Hatch Act" from running for re-election to the House. The Hatch Act is codified at 5 U.S.C. §§ 1501- to 1508. It provides in pertinent part as follows:
(3) Be a candidate for elective office.
The Act defines a "state or local officer or employee" as follows:
"State or local officer or employee" means an individual employed by a State or local agency whose principal employment is in connection with an activity which is financed in whole or in part by loans or grants made by the United States or a Federal agency[.]
The Act defines "state or local agency" as follows:
"State or local agency" means the executive branch of a State, municipality, or other political subdivision of a State, or an agency or department thereof[.]
Although I have opined that the drug task force is not a "state agency" for purposes of A.C.A. §
If the legislator is appointed to the position and continues to serve in the legislature (either because the Hatch Act does not apply, or because he has withdrawn from the race for re-election and is merely serving out the remainder of his current term, see Footnote 3), he should remain cognizant of the potential for conflicts of interest that may arise in isolated instances. Such instances would arise when the particular facts of a situation would divide the individual's allegiance between the drug task force and the interests he represents as a legislator. In such instances, the individual should abstain from participating in any decision-making or other acts that would require him to act in the interest of one at the expense of the interest of the other.
The common law prohibition against conflicts of interest is reflected in the following description of the public policy underlying the principle:
A public office is a public trust . . . and the holder thereof may not use it directly or indirectly for personal profit, or to further his own interest, since it is the policy of law to keep an official so far from temptation as to insure his unselfish devotion to the public interest. Officers are not permitted to place themselves in a position in which personal interest may come into conflict with the duty which they owe to the public, and where a conflict of interest arises, the office holder is disqualified to act in the particular matter and must withdraw.
67 C.J.S. Officers § 204. See also Ops. Att'y Gen. Nos.
The above-quoted policy statement concerning conflicts of interest makes clear that in situations where a common law conflict of interest is present, it may be appropriate for the affected public servant to abstain from participating in any decision-making procedure that would impact upon his or her conflicting interests, so as to avoid the temptation of placing a conflicting interest above the interest of those he was chosen to represent. This policy statement appears to indicate that the wrong to be avoided is the placing of a conflicting interest above public duty. The avoidance of such wrongs will be a continuing duty for the individual in question if he is chosen for the position of drug task force director.
Assistant Attorney General Suzanne Antley prepared the foregoing opinion, which I hereby approve.
Sincerely,
MIKE BEEBE Attorney General
MB/SA:cyh
Enclosure
No judge of the supreme, circuit or inferior courts of law or equity, Secretary of State, Attorney-General for the State, Auditor or Treasurer, recorder, or clerk of any court of record, sheriff, coroner, member of Congress, nor any other person holding any lucrative office under the United States or this State (militia officers, justices of the peace, postmasters, officers of public schools and notaries excepted), shall be eligible to a seat in either house of the General Assembly.
Article 5, § 10 states:
No Senator or Representative shall, during the term for which he shall have been elected, be appointed or elected to any civil office under this State.