Frequently asked questions for Circuit Clerks.
Yes, a county employee should be paid the per diem compensation for serving as a juror just like any other person. Arkansas Code Annotated 16-34-103(a)(1)(2) says, “Any person who receives official notice that he or she has been selected as a prospective juror or who is chosen as a juror is eligible to receive per diem compensation for service if: (1) The person actually appears at the location to which the juror or prospective juror was summoned; and (2) The person’s appearance is duly noted by the circuit clerk.”
The per diem compensation, as established by A.C.A. 16-34-103(b)(1)(2), is $50.00 per day for a person who is selected and seated to serve as a member of a grand jury or petit jury. Those who are excused or otherwise not selected and seated as a member of the jury are provided per diem compensation of not less than $15.00 as established by ordinance of the county quorum court for each day that they are required to appear at the location to which they were summoned.
In addition to the per diem established for jurors and prospective jurors, A.C.A. 16-34-104 establishes an avenue for mileage reimbursement in the event and to the extent that a county quorum court adopts by ordinance a policy for reimbursement of mileage costs for jurors. The mileage reimbursement payment is allowed only to those whose primary place of residence is outside the city limits of the court that summoned them for duty and is paid from and to his or her home by the most direct and practicable route at the rate prescribed by the county.
A county may be reimbursed by the State of Arkansas on a quarterly basis for the $50.00 per diem fees paid to persons selected and seated to serve as a member of a grand jury or petit jury. The reimbursement process and time-line is set forth in A.C.A. 16-34-106.
The deduction of jury duty fees from the salary of a county employee is prohibited by state law. A.C.A. 21-5-104(a) says, “No state, county, or municipal employer in this state shall deduct from the usual compensation of any employee, all or any part of the fees or compensation received by the employee for appearing for grand or petit jury duty or serving on any grand or petit jury in any court in this state.”
In fact, a county employer who violates the provision of A.C.A. 21-5-104 is guilty of a misdemeanor and upon conviction can be fined up to $250.00 and the violation constitutes grounds for dismissal of the employer from his or her office or position of public employment.
The County Recorder’s Cost Fund was established with the enactment of Act 768 of 1995, which was the Recorders Uniform Fee Bill – amending A.C.A. 21-6-306 to increase recording fees and to include language to implement the County Recorder’s Cost Fund. This code was amended again by Act 1144 of 2001; Act 1339 of 2003; Act 615 of 2007; and Act 202 of 2009. These amendments of A.C.A. 21-6-306 have changed both the amount of the recording fees and the uses of the County Recorder’s Cost Fund.
Since the inception of the County Recorder’s Cost Fund there has been misconception and consternation about the fund and how it is to be used. It apparently is handled differently from county to county. I will delineate in the next few paragraphs what the law currently says about the establishment and uses of this fund.
All of the “recording fees” that are listed in Arkansas Code Annotated 21-6-306 are to be paid over to the County Treasurer by the County Recorder. The treasurer is to credit all of these fees to a fund in the county treasury to be known as the “County Recorder’s Cost Fund” [A.C.A. 21-6-306(b)(1)].
The moneys deposited in the County Recorder’s Cost Fund are to be appropriated by the quorum court in a line-item budget, at the direction of the recorder, for administrative costs of the recorder’s office and to purchase, maintain, and operate an automated records system [A.C.A. 21-6-306(b)(2)(3)(c)(1)(2)(A)].
At least 25% of the moneys collected annually in this fund are to be used to purchase, maintain, and operate an automated records system. The acquisition and update of software for the automated records system is a permitted use of these funds. This law creates a minimum of 25% of the annual fees collected to be used for the purposes just mentioned, but more than 25% of these funds can legally be used to purchase, maintain, and operate an automated records system [A.C.A. 21-6-306(c)(2)(A)].
Before the creation of the County Recorder’s Cost Fund, the revenue created by the recording of various documents by the County Recorder was general revenue of the county. With the passage of Act 768 of 1995 “recorder revenue” became “special revenue” and is credited to the special revenue fund – County Recorder’s Cost Fund.
The portion of the statute that directs the use of the funds is couched in mandatory terms, stating: “All moneys collected by the recorder as a fee as provided in this section shall be used by the recorder’s office to offset administrative costs. At least 25% of the moneys collected annually shall be used to purchase, maintain, and operate an automated records system.” According to case law the use of the term “shall” in statutory language means the legislature intended mandatory compliance (AG Opinion No. 1996-235). In other words, as first enacted, moneys in the County Recorder’s Cost Fund had to be solely used for the recorder’s office.
It soon became apparent that in most, if not all counties the fund produced more revenue than could adequately, effectively or efficiently by used by the Recorder. Many counties were amassing large balances in the County Recorder’s Cost Fund as the years elapsed. In 2003 the Arkansas Legislature passed Act 1339 which amended A.C.A. 21-6-306(c) to allow the County Recorder to transfer unneeded funds from the County Recorder’s Cost Fund to the County General Fund.
Act 1339 of 2003 amended A.C.A. 21-6-306(c)(2) to create (c)(2)(A) and (c)(2)(B). Subdivision (c)(2)(A) was the previous (c)(2) which was unchanged and says, “At least twenty-five percent (25%) of the moneys collected annually shall be used to purchase, maintain, and operate an automated records system. The acquisition and update of software for the automated records system shall be a permitted use of these funds.” Subdivision (c)(2)(B) is the new wording added by Act 1339 of 2003, which says, “At the discretion of the recorder, any funds not needed by the recorder for any of the purposes under this subdivision (c)(2) may be transferred to the county general fund.”
In essence, the amendment of 2003 [A.C.A. 21-6-306(c)(2)(B)] allows adequate flexibility. Here is one scenario for use of the County Recorder’s Cost Fund. The County Recorder may determine the amount needed to “purchase, maintain, and operate an automated records system”, including accumulation for future need; can pay for the administrative costs of the Recorder’s operation from the fund; and can choose to transfer any part of the remainder to the County General Fund to offset other costs of his or her office, including the Circuit Clerk office operation and any other legal general fund expenditure.
There are also other expenditure scenarios since the enactment of the 2003 amendment made the use of the funds so much more flexible. But, remember that the law still requires that ALL of the Recorder Fees first be credited to the County Recorder’s Cost Fund.
Act 615 of 2007 also amended A.C.A. 21-6-307 and added (c)(2)(C) which caps the County Recorder’s Cost Fund balance at $1,000,000. Any funds in excess of one million dollars must be transferred to the county general fund – but, in accordance with “county accounting law” the transfer should be an appropriated transfer.