Frequently asked questions for county judges.
Since the enactment of Act 837 of 1987, codified as A.C.A. 20-22-809, for the purpose of workers’ compensation coverage, volunteer firefighters of certified fire departments are considered county employees and shall receive minimum compensation.
These volunteer firefighters are “county employees” for purposes of workers’ compensation coverage only. To be eligible for coverage the volunteer firefighter must maintain the minimum training standards as established by the Arkansas Fire Protection Services Board and A.C.A. 20-22-806 and must be a member of a certified fire department other than a municipal fire department.
Act 808 of 2009 amended A.C.A. 20-22-806 and 20-22-809 to include workers’ compensation coverage for a member of a certified volunteer fire department who does not engage in firefighting and is exempt from the minimum training standards.
For the purpose of workers’ compensation coverage in cases of injury, volunteer firefighters of certified fire departments will receive minimum compensation. In the case of death arising out of and in the course of their activities as firefighters, the survivors will receive death benefits in the same manner as regular county employees.
Counties of Arkansas have operated under the “90% Rule” since 1879 as outlined in Arkansas Code Annotated 14-20-103. A few exceptions to the 90% limitation have been adopted over the years.
The crux of A.C.A. 14-20-103 states, “the county quorum court shall specify the amount of appropriations for each purpose in dollars and cents,…..the total amount of appropriations for all county purposes for any one (1) year shall not exceed ninety percent (90%) of the anticipated revenues for that year…..”. The few exceptions to the 90% rule that have been added to the code over the years are:
The reasoning behind the original law (and the exceptions are not a part of the original law) is at least two-fold: (1) the projected revenues are just that – projected – a calculated estimate based on past and present financial data and trends. The 90% rule allows for some margin of error; and (2) a large percentage of county government revenue is received in the final half of the year. Using the 90% rule allows for a carry-over cash balance which provides cash flow in the first part of the year when actual (current year) revenue received is less.
The “10% set-aside” is not set-aside forever. It does get used. For most counties, the carry-over cash balance of any account becomes a part of the projected revenues for the following year. The carry-over cash balance includes the 10% set-aside, revenues in excess of projections, and revenues remaining from unspent appropriations. Of course, the ideal operation would not even depend on the 10% set-aside for budgeting and actually set those amounts aside as a “reserve” for emergencies.
A.C.A. 14-20-103 is a law that has worked very well for county government since 1879. The law has been modified a few times, allowing for the exceptions to the rule. But, when used properly this law has allowed county government to operate responsibly and with financial integrity.
The simple answer is “yes” – but 911 revenues are restricted. Any 911 revenue generated pursuant to A.C.A. 12-10-318 through 12-10-321 must be spent only in direct connection with the provision of 911 services.
A.C.A. 12-10-323 outlines the purposes for which 911 revenues can be spent. They are:
Even though the list of authorized expenditures of 911 revenues has been expanded and liberalized in recent years – the list is not “all inclusive”. Any expenditure of 911 revenue generated by A.C.A. 12-10-318 through 12-10-321 is prohibited if it is not identified in the list above 1 – 7. [A.C.A. 12-10-323(b)]
As in the case of other restricted revenue funds, appropriations of funds from other sources – such as the General Fund – may supplement the authorized expenditures of A.C.A. 12-10-323 and may fund other activities of the 911 public safety communication center not associated with the provision of emergency services. [A.C.A. 12-10-323(c)]
According to Article 16, Section 5 of the Arkansas Constitution, both real and personal property is taxable. Section 17 of Arkansas Constitution Amendment 59 repealed the original Article 16, Section 5 and substituted the current wording which, in part, says: “all real and tangible personal property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State.” Amendment 71 of the Arkansas Constitution, adopted at the 1992 general election, delineates what personal property is exempt from ad valorem taxes and what personal property is taxable.
The maximum rates that can be levied on real and personal property by the county for county use are 5 mills for general use; 3 mills for road purposes; and 5 mills for operation and maintenance of the county library. The county quorum court is required to levy ad valorem tax rates at its regular meeting in November of each year for collection the following year [A.C.A. 14-14-904(b)(1)(A)(i)]. The Director of the Assessment Coordination Department may authorize an extension of up to 60 days of the date for levy of taxes if there is good cause shown resulting from reappraisal or rollback of taxes. The application for extension must be filed by the County Judge and County Clerk. [Note: 1 mill = a tenth of 1%]
The electorate does not have to approve the levy of general and road taxes for the county. The county is given the authority to levy up to 5 mills for general (all) purposes in Article 16, Section 9 of the Arkansas Constitution – “No county shall levy a tax to exceed one-half of one per cent (5 mills) for all purposes…..” Amendment 61 to the state constitution says, “County quorum courts may annually levy a county road tax not to exceed three (3) mills on the dollar on all taxable real and personal property within their respective counties.....” Amendment 61 repealed Arkansas Constitution, Amendment 3, which also allowed a maximum 3 mill road tax, but under Amendment 3 the tax had to appear on the ballot every general election. Every November the quorum court has the authority to levy a county general tax up to 5 mills and a road tax up to 3 mills.
A county is also authorized to levy a county library tax by Amendment 38 of the Arkansas Constitution (amended by Amendment 72 and incorporated into Amendment 38 by amending Sections 1 and 3 and adding Section 5). However, this tax must be voted on by the electors of the county and the tax rate cannot exceed five mills on the dollar for maintenance and operation of the library (Amendment 38, Section 1). The maintenance and operation of the library is defined in A.C.A. 13-2-405(2). Once the rate is established by the electorate, the quorum court will levy the established rate each year until there is another election to change the rate. Amendment 38, Section 3 of the state constitution requires an election to raise, reduce or abolish the library tax.
Section 5 of Amendment 38 (added by Amendment 72) provides for an election for a special library tax, in addition to the maintenance and operation tax, to pay bonded indebtedness to finance capital improvements to or construction of a county library or county library service or system. Upon retirement of the bonded indebtedness, any surplus tax collections, which may have accumulated, shall be transferred to the general funds of the county, and shall be used for maintenance of the county library.
Arkansas law does not directly answer that question. I cannot point you to an Arkansas code that says that a certain county official or office shall have custody of titles to county owned vehicles and equipment. However, I would like to call your attention to several laws that help us draw a reasonable conclusion. They are:
A.C.A. 14-25-106 requires each county official to maintain an inventory of all fixed assets under the control of their office. The exception to this rule is if the quorum court designates one county official or county employee to be responsible for maintaining the inventory or fixed asset list. Although, as a general rule, a county official is responsible for maintaining an inventory record under this code – it does NOT give or constitute “custody” of the property to the individual county officials.
Arkansas Constitution, Amendment 55, Article 3 specifically grants “custody of county property” to the County Judge.
• Amendment 55, Article 3 – The County Judge, in addition to other powers and duties provided for by the Constitution and by law, shall preside over the Quorum Court without a vote but with the power of veto; authorize and approve disbursement of appropriated funds;
operate the system of county roads; administer ordinances enacted by the Quorum Court; have custody of county property; hire county employees, except those persons employed by other elected officials of the county.
A.C.A. 14-14-1101 deals with “powers of the county judge generally” and reiterates the executive powers of the county judge as established in Arkansas Constitution, Amendment 55, Article 3. A.C.A. 14-14-1101(a)(5) specifically says that the county judge has “custody of county property”.
A.C.A. 14-14-1102 deals with the exercise of powers by the county judge including, but not limited to, “custody of county property”. A.C.A. 14-14-1102(3)(A) says, “The county judge, as the chief executive officer of the county, shall have custody of county property and is responsible for the administration, care, and keeping of such county property, including the right to dispose of county property in the manner and procedure provided by law for the disposal of county property by the county court.* The county judge shall have the right to lease, assign, or not assign use of such property whether or not the county property was purchased with county funds or was acquired through donations, gifts, grants, confiscation, or condemnation.”
*Note: The responsibility of “the disposal of county property” also lies with the county judge – as noted above. The prevailing laws dealing with the disposal or sale of county property are:
Accordingly, it is my conclusion that the law is definitive that the County Judge exercises the executive power of “custody of county property” and is also the only county official with the authority to “sell or dispose of county property”. Therefore it is reasonable to conclude that the County Judge should maintain custody of all titles to county vehicles and equipment since these are lawful instruments needed to: (1) prove custody; and (2) convey or transfer ownership if the County Judge exercises his or her right to sell or dispose of said county property.
The County Clerk’s Cost Fund, established by Act 1765 of 2003, has not been the topic of as much discussion as other cost funds or automation funds – because as a general rule the County Clerk’s office does not generate as much revenue. No Attorney General Opinions have been issued concerning the County Clerk Cost Fund – and there have been no court cases involving this fund as of late 2011.
Although this fund is probably handled differently from county to county – here is what the law says concerning the County Clerk’s Cost Fund.
Fees collected by the County Clerk pursuant to A.C.A. 21-6-413, 21-6-415 and 16-20-407 are to be paid into the county treasury to the credit of the “county clerk’s cost fund”. In strict accordance with the law 100% of these fees are to be credited to the fund – even though only 35% of the fees are restricted and considered “special revenues”.
Many counties probably credit 35% of the fees to the County Clerk’s Cost Fund and 65% of the fees to County General. To be in full compliance with the law 100% of the fees should be credited to the County Clerk’s Cost Fund with 65% then transferred to County General as an appropriated transfer or the 65% can actually be appropriated and expended from the County Clerk’s Cost Fund for “any legitimate county purpose.”
A.C.A. 21-6-413(e)(1)(A) says that the county clerk fees “shall be paid into the county treasury to the credit of the fund to be known as the county clerk’s cost fund.” The law goes on to say in subsection (e)(1)(B) that “with the exception of those funds referred to in subdivision (e)(2) of this section, all funds deposited into the county clerk’s cost fund are general revenues of the county and may be used for any legitimate county purpose.”
The funds referred to in subdivision (e)(2) are the 35% “special revenue” funds. These funds, in accordance with A.C.A. 21-6-413(e)(2)(A)(B) “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.”
Normally “special revenues” or “restricted funds” are just that – they can be used only for the purposes set out in law…..unless there is an exception laid out in the law. In this case the exception is espoused in A.C.A. 21-6-413(e)(2)(C) which says, “Funds set aside for automation may be allowed to accumulate from year to year or at the discretion of the clerk may be transferred to the county general fund by a budgeted appropriated transfer.
Special Notes concerning the County Clerk’s Cost Fund:
The Collector’s Automation Fund, much like the Treasurer’s Automation Fund, is funded with a portion of the collector’s commission. In accordance with Arkansas Code Annotated 21-6-305(2)(A), “The county collector may set aside up to ten percent (10%) of the gross commissions collected annually to be credited to the county collector’s automation fund”.
Because the law concerning the establishment of a County Collector’s Automation Fund is permissive in nature – the collector may choose whether or not to establish the fund and whether or not to keep funding it. If the collector decides to establish the fund, any percentage of annual gross commissions may be set aside in the County Collector’s Automation Fund – up to a maximum of 10%. And, that percentage can change annually at the call of the collector.
The moneys credited to the Collector’s Automation Fund are not subject to the excess commission rule and may accumulate from year to year. The funds are to be appropriated by the quorum court at the direction of the collector for the uses designated in A.C.A. 21-6-305(2)(i)(ii)(iii)(B).
The original uses of the fund were to “purchase, maintain, and operate an automated record-keeping system.” The acquisition and update of software for the automated accounting and record-keeping system was a permitted use of the original law for this automation fund.
Like other county automation and cost funds, the uses of the County Collector’s Automation Fund were liberalized in 2003. The Arkansas Legislature through Act 847 of 2003 added the terms “to operate the office of county collector” and “for administrative costs” to A.C.A. 21-6-305. The new language of this law is very broad in nature. Black’s Law Dictionary defines “administrative expenses” or costs as “overhead” which would cover a multitude of expenditures. The language “to operate the office of the county collector” is even broader terminology. No doubt the real focus of the fund should still be “computerization” or “automation” of the collector’s office as the moniker of the fund would indicate. But, with the 2003 amendment to the law, the fund can now be spent on virtually any legal expenditure of the collector’s office [AG Opinion No. 2009-192].
Unlike some other “automation funds” or “cost funds” where the officials have the discretion to transfer to the county general fund any moneys they deem excess and not needed for the intended purpose or purposes of the Automation Fund or Cost Fund – that is NOT so with the Collector’s Automation Fund. Any use of the money in the Collector’s Automation Fund, since it is collector commission, taken from local tax entities, it has to be used solely for the expenses of the County Collector’s office. The only way that you could transfer any additional collector commission funds or funds from the Collector’s Automation Fund to the County General Fund would be if expenditures, clearly tied to the Collector’s office, had been paid outside the Collector’s budget. [This logic is based on Attorney General Opinion No. 78-112 which cites several court cases and constitutional law, including Article 16, Section 11 – “no moneys arising from a tax levied for any purpose shall be used for any other purpose.”]
Arkansas Code Annotated 12-41-502 say, “The county sheriff of each county in this state shall have the custody, rule, and charge of the jail within his or her county and all prisoners committed in his or her county,…..”. Also, A.C.A. 14-14-802(a)(2) requires, “A county government, acting through the county quorum court, shall provide, through ordinance, for……..law enforcement protection services and the custody of persons accused or convicted of crimes”. There are other state laws and court case decisions that indicate that a county government should not only have a county jail, but should properly fund the jail operation.
County jail operations are one of the largest financial burdens on county governments in Arkansas – but, there are several revenue sources for the operation of a county jail that can be secured. The two largest and most common revenue sources are a dedicated sales tax (must be approved by a vote of the electorate) and general funds of the county. Other sources of jail revenue include housing fees for housing prisoners of other government jurisdictions, including state prisoners and 309’s; commissary fees; and pay-for-stay fees. In most counties, the sheriff’s office may allocate up to 50% of the commissions from prisoner telephone services for the maintenance and operation of the county jail in accordance with A.C.A. 12-41-105(b)(2). Two other sources of revenue for jail operations are the $20 booking and administrations fee and the local fine that can be levied by the quorum court to help defray the cost of incarcerating prisoners.
Let’s take a closer look at those last two sources of jail revenue mentioned and the laws that regulate them –
Act 117 of 2007 amended Arkansas Code Annotated 12-41-505 [Expense and support of the jail] to add a booking and administration fee of $20 to anyone convicted of a felony or a Class A misdemeanor. The fee is assessed in one of two ways. It is assessed upon the conviction of a person and included in the judgment entered by the court – or if the court suspends imposition of a sentence on the person or places the person on probation and does not enter a judgment of conviction, the court is to impose the booking and administration fee as a cost.
The “booking fee” is to be deposited into a special fund within the county treasury to be used exclusively for the maintenance, operation, and capital expenditures of a county jail or regional detention center. The “special fund” can be a newly created special revenue fund – or if the county operates the jail out of a “special revenue” fund it can be credited to that fund (i.e. County Jail Fund, County Detention Center Fund, etc.).
Act 209 of 2009 amended A.C.A. 16-17-129 so that a city and/or county could, by ordinance, levy an additional fine not to exceed $20 to be collected from defendants in District Court to be used to defray jail expenses.
A.C.A. 16-17-129, as amended, reads in part:
(a)(1)(A) In addition to all fines now or as may hereafter be provided by law, the governing body of each town or city in which a district court is located may by ordinance levy and collect an additional fine not to exceed twenty dollars ($20.00) from each defendant upon each conviction, each plea of guilty or nolo contendere, or each bond forfeiture in all cases in the first class of accounting records as described in A.C.A. 16-17-707.
(b)(1) In addition to all fines now or as may hereafter be provided by law, the quorum court of each county may by ordinance levy an additional fine not to exceed twenty dollars ($20.00) to be collected from each defendant upon each conviction, each plea of guilty or nolo contendere, or each bond forfeiture in all cases in the first and second class of accounting records as described in A.C.A. 16-17-707. A county ordinance enacted under this subdivision (b)(1) applies to all district courts in the county.
As a result of this amended state law, cities may now collect up to $20.00 in fine money on accounting one records, and counties may collect up to $20.00 in fine money on accounting one and two records. Accounting one records are “city cases” and accounting two records are “county cases”. Counties should assess this fine in district court on both city and county cases. However, it can only be assessed by the passage of an ordinance to levy the fine.
The revenue collected by the assessment of this fine can be used for: (1) the construction, maintenance, and operation of the city, county, or regional jail; (2) deferring the costs of incarcerating county prisoners held by a county, a city, or any entity; (3) the transportation and incarceration of city or county prisoners; (4) the purchase and maintenance of equipment for the city, county, or regional jail; and (5) training, salaries, and certificate pay for jailers and deputy sheriff’s. The only exception to these uses is that sums collected from this fine on “city cases” cannot be used for training, salaries or certificate pay for deputy sheriffs.
As an additional note of explanation – since the question has been raised – this additional fine allowed under A.C.A. 16-17-129 to be used to help defray jail expenses should apply also to a seatbelt conviction.
Under A.C.A. 27-37-706, any person violating the mandatory seatbelt use law shall be subject to a fine not to exceed $25, and when a person is convicted and pleads guilty, or forfeits bond, no other court costs or fees shall be assessed. However, the fines allowed by Act 209 of 2009 (A.C.A. 16-17-129) can be applied to seatbelt convictions because additional fines are not the same as court costs and fees. Attorney General Opinion No. 2003-117 states, “The statute prohibits the imposition of additional court costs and fees,” but it “does not prohibit additional fines. Courts have traditionally distinguished between fines, which are intended to be punishment for the offense in question, and court costs or fees.” This same logic was reiterated in Attorney General Opinion No. 2009-148 issued in October 2009 after Act 209 of 2009 was passed and went into effect.
The beginning of ad valorem taxation in Arkansas starts with the Arkansas Constitution of 1874. Article 16, Section 5 of the Constitution, as amended, provides that: “All real and tangible personal property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State.”
Laws on property taxation in Arkansas have been in constant change throughout the years. Because of a court case in the late 1970’s that ruled that ad valorem taxation in Arkansas was not “equal and uniform throughout the State” the court ordered reassessment of all real estate in Arkansas. Amendment 59 to the Constitution was passed by the electorate in 1980 due to the court-ordered reassessment to keep real property taxes from rising exorbitantly. Act 848 of 1981 [A.C.A. 26-26-401 et. seq.] was adopted by the Arkansas legislature as the enabling legislation for Amendment 59.
Each of the 75 counties in the State of Arkansas is now responsible for a cyclical county-wide reappraisal. Each county is required to appraise all market value real estate normally assessed by the county assessor at its full and fair market value in accordance with Arkansas Code Annotated 26-26-1902. Depending on the real property value growth – a county is either on a 3 year or a 5 year cycle for a complete reappraisal of real property.
The reappraisal is paid for from the Arkansas Real Property Reappraisal Fund – established by Act 1185 of 1999 and codified as A.C.A. 26-26-1907. The proceeds of the fund are used to pay counties and professional reappraisal companies for the reappraisal of real property in lieu of real property reappraisal funding by the local taxing units in each county of the state.
In reality the tax entities are still paying for nearly all of the reappraisal since the funding source of $14,250,000 of the cost is withheld from state funds that would otherwise flow to schools, counties and cities. The State Treasurer withholds 76% of the amount from the Department of Education Public School Fund Account; 16% of the amount from the County Aid Fund; and 8% of the amount from the Municipal Aid Fund and credits the amounts to the Arkansas Real Property Reappraisal Fund [Act 217 of 2011, Section 7 Special Language – included in the Arkansas Assessment Coordination Department budget act each year]. The other $1.5 million of the current fiscal year (2012) appropriation of $15,750,000 for Real Property Reappraisal will come from the State of Arkansas Miscellaneous Agencies Fund [Act 217 of 2011, Section 11 Special Language]. However, the proportion that an entity pays is not necessarily the same proportion that the entity would pay if they were reimbursing the county direct for their share of the reappraisal costs.
Funding to any county for property reappraisal is for actual appraisal cost, up to a maximum of $7 per parcel, per year. Counties must use other taxing unit sources of revenue to provide for the cost of real property reappraisals if the cost exceeds $7 per parcel [Act 217 of 2011, Section 9 Special Language – special language of this sort is found in each annual budget Act of ACD].
There is nothing in the law to prohibit a county from charging each tax entity their proportionate share of the cost exceeding $7 per parcel on a monthly basis in order to keep the County Property Reappraisal Fund from running a negative balance. There is no need for the county to suffer the burden of paying the excess cost of reappraisal until the “final tax settlement” is made in December. Charge each entity their share on a monthly basis.
The County Sheriff’s office budget is probably the largest office budget of the county constitutional officers. Although the Sheriff’s office has the ability to generate quite a bit of revenue it will not be enough to cover the cost of running the office.
The County Sheriff may be the county official designated in your county by the quorum court to collect fines [A.C.A. 16-13-709 Responsibility for collection]. Of course, many circuit and district court fines remain at the local level and are remitted to the general fund.
The County Sheriff has several “Special Revenue” funds – such as the Communications Facility and Equipment Fund [A.C.A. 21-6-307]; the Boating Safety Enforcement Fund or Emergency Rescue Fund [A.C.A. 27-101-111]; the Drug Enforcement Fund [A.C.A. 14-21-201 through 14-21-203]; the Drug Control Fund [A.C.A. 5-64-505, A.C.A. 29-30-160, A.C.A. 12-17-105]; and possibly others that may have been established by county ordinance.
Fees to be charged by the County Sheriff are set forth in A.C.A. 21-6-307. The Sheriff fees are divided 75% to County General and 25% to the Communications Facility and Equipment Fund. The 25% amount does not have to be remitted to the county treasury – and can be retained by the Sheriff. In fact, in strict accordance with the law the Sheriff maintains this money and fund and it is not subject to appropriation by the quorum court [AG Opinion #2002-008 and AG Opinion #2003-074]. The funds, however, are restricted to certain types of expenditure and the fund is subject to audit by the Division of Legislative Audit.
However, in many counties the Communication Facility and Equipment Fund is on the books of the County Treasurer. When the Communications Facility and Equipment Fund first became a part of the law in the 1980’s (was first called the Sheriff’s Radio and Equipment Repair and Replacement Fund – changed to current name by Act 662 of 1995) the Division of Legislative Audit did not think it was a good idea for the Sheriff to maintain control of the fund and suggested that they remit it to the County Treasurer (that was before Enron and when they made those types of suggestions). There were some Sheriffs also that thought it was not a very good idea for them to maintain this money in their office. Therefore, in many counties – contrary to what the law says – the Communications Facility and Equipment Fund is on the books of the County Treasurer. In such case, the fund is a part of the county treasury and is subject to quorum court appropriation [A.C.A. 14-14-1102(b)(2)(C)(i) and Arkansas Constitution, Article 16, Section 12].
At the discretion of the Sheriff, any funds in the Communications Facility and Equipment Fund not needed by the Sheriff may be transferred to the county general fund.
The 25% of Sheriff fees is not the only source of revenue for the Communications Facility and Equipment Fund. One hundred percent (100%) of the commissions derived from prisoner telephone services provided in the county jail are to be credited to the Communications Facility and Equipment Fund. However, the Sheriff may allocate up to 50% of the commissions deposited to the fund for the maintenance and operation of the county jail. [Note: Commissions from prisoner telephone services are addressed in A.C.A. 12-41-105 and the provisions of that code do not apply to Benton, Pulaski and Washington counties – the three counties in Arkansas with populations in excess of 175,000.]
Another source of “special revenue” for the County Sheriff comes from boat registration fees. A percentage of those fees are credited to the County Aid Fund and remitted to the County Treasurers in the proportions thereof as between the respective counties that the total of the fees produced from each county bears to the total of the fees produced from all counties. [A.C.A. 27-101-111]
Upon receipt of these funds the County Treasurer credits the funds to the Boating Safety and Enforcement Fund – if the Sheriff has established a patrol on the waterways within the county. Otherwise, the funds are credited to the County Emergency Rescue Fund for use exclusively by either the county or the cities within the county, or both, for operating and maintaining emergency rescue services.
If neither the county nor any of the cities within the county operate emergency rescue services the fees should be deposited into the Game Protection Fund for use by the Arkansas State Game and Fish Commission.
A county may provide the Sheriff with another Special Revenue Fund – a Drug Enforcement Fund. For this fund to be established the quorum court must pass an ordinance establishing the fund and set a maximum balance for the fund – not to exceed $10,000. There are restrictions on how the fund can be used. Everything there is to know about the Drug Enforcement Fund is in Act 362 of 1997 (which has never been amended) and codified in A.C.A. 14-21-201 through 14-21-203. These codes/laws are so straightforward that there are no AG Opinions addressing the meaning of these codes.
Another one of the Special Revenue Funds for use by the County Sheriff is the Drug Control Fund. Information concerning the Drug Control Fund is found in the rather extensive “Property Subject to Forfeiture” law which is codified as A.C.A. 5-64-505. Subdivision (i)(2) lays out the creation of the Drug Control Fund on the books of law enforcement agencies and prosecuting attorneys. The Drug Control Fund moneys come from the disposition of moneys in the Prosecutor’s Asset Forfeiture Fund as outlined in subdivision (i)(1). Moneys in the Drug Control Fund shall be used only “for law enforcement and prosecutorial purposes” – which is a rather broad definition of what the moneys can be used for. There are several Attorney General Opinions dealing with the Drug Control Fund.
In connection with the Drug Control Fund as established under A.C.A. 5-64-505 – at least two other codes are worth mentioning. They are:
Of course, another great expense to the county in the realm of law enforcement is the incarceration of prisoners in the county jail. There are a number of revenue sources for the operation of a county jail. I have addressed and delineated those in a separate “question and answer” segment of the Association of Arkansas Counties FAQ’s.
As a general rule tax refunds must be made within three (3) years from the date the taxes were paid. Arkansas Code Annotated 26-35-901 is the primary state code dealing with real or personal property taxes erroneously assessed and paid. After providing satisfactory proof to the county court [the county judge in his/her judicial capacity with exclusive original jurisdiction in all matters relating to county taxes / A.C.A. 14-14-1105] the county court issues a county court order directing the county treasurer to refund the person the amount of taxes erroneously assessed and paid. The claim for refund at the county level has to be made within 3 years from the date the taxes were paid. And the claim of erroneously assessed and paid taxes must fall within the definition of “erroneously assessed” as defined in A.C.A. 26-28-111(c).
The refund is normally paid from the general fund of the county and the general fund is then reimbursed by transfer from funds of the respective taxing units. The amount contributed by each taxing unit will be the amount of the erroneous payment received by the taxing unit. All of the pertinent information for the tax refund transaction should be contained in the county court order. [Some counties accomplish the refund by making the appropriate transfers from each tax entity to the Collector’s Unapportioned Account and the county treasurer issues the county check from the Collector’s Unapportioned Account.]
There is a possibility that a refund could be made for up to a five (5) year period. A.C.A. 26-39-220 [Adjustment of errors.] says the county court has the duty to reconsider and adjust the settlement of any county officer for any error discovered within 3 years from the date of the settlement. If the error in a settlement is discovered after three (3) years, but within five (5) years from the date of the settlement, the county judge (county court) has the duty to petition the chancery court (now circuit court under Amendment 80) to obtain an order to correct the error or errors. [See AG Op. #1992-357]
I will preface the answer to this question with the statement that a county should not get in the situation of having to pay penalties because of the late payment of a bill. County government should exercise diligence in taking care of tax payer money – including timely payment of claims so as to avoid the wasteful payment of penalties.
However, if a county finds itself in the position of paying an overdue invoice to which a penalty has been applied – I do not believe there is any law that forbids the payment of an actual “penalty”.
Some people tend to view “interest” and “penalty” in the same light – when, in fact they are different animals. A county cannot pay interest (except in certain instances)….but there is no state law prohibition against paying a penalty.
“Interest” is legally defined as “the compensation fixed by agreement or allowed by law for the use of money”. Article 16, Section 1 of the Arkansas Constitution says, “Neither the State nor any city, county, town or other municipality in this State shall ever lend its credit for any purposes whatever; nor shall any county, city or town or municipality ever issue any interest bearing evidences of indebtedness, except such bonds as may be authorized by law…….”. Amendment 78, Article 2 of the Arkansas Constitution provides for short-term financing for counties and cities allowing the payment of interest. Amendments 62, 65 and 72 also allow various types of bond issues and debt obligations, which entail interest.
However, a “penalty” is legally defined as “an extra charge against a party who violates a contractual provision.” When a county makes a purchase from a vendor they automatically agree to the terms of payment. If those terms are not met then the county is subject to paying the penalty just like anyone else. I have found no law or AG Opinion to the contrary.
The prevailing Arkansas code that establishes the framework for the division of costs associated with District Court is A.C.A. 16-17-115 [County’s, town’s and city’s portion of district court expenses – Appropriation.]. A.C.A. 16-17-115(a) deals with the county portion of expense and says, “except as authorized otherwise, the county wherein a district court is held shall pay one-half (1/2) of the salaries of the district judge and each chief court clerk of any district court organized in that county under the provisions of A.C.A. 16-17-901 et seq and the quorum court shall make an appropriation of a sum sufficient to pay the county’s proportion of the expenses of any such district court. These payments shall be made out of the district court cost fund and general revenues of the county.” So, in many cases, the county is only legally responsible for one-half of the salary of both the district court judge or judges and the chief district court clerk(s).
There are Attorney General Opinions that say the county is not responsible for other expenses of the district court – other than outlined in law. For many counties those opinions opine that the county is not responsible for salaries of deputy district court clerks. They go as far as to say that the county is not responsible for paying fringe benefits for the judge and clerk – fringe benefits like health insurance, retirement, etc. Arkansas Attorney General Opinion No. 1996-207 is a concise opinion that covers this topic.
However, notice the first four words of A.C.A. 16-17-115(a) – “except as authorized otherwise”. Arkansas Code Annotated 16-17-108 is a state law that establishes the salaries or the perimeters for salaries of personnel and other requirements of various district courts. This code may or may not establish the proportion of salaries paid in accordance with A.C.A. 16-17-115(a) – but it is a state law that normally has the blessing of local officials concerning the division of district court expenses before it is enacted by the legislature. There are a few other state code sites that are specific to individual district courts and the cost division thereof.
The local political subdivisions may also have local agreements concerning the division of district court expenses in accordance with A.C.A. 16-17-115(b)(1)(A)(ii).
To synopsize the division of expense for district courts in Arkansas the fall back position according to A.C.A. 16-17-115 is that county government is responsible only for one-half (1/2) of the salaries of the district court judge and each chief court clerk [subdivision (a)] and towns and cities are responsible for the other one-half of the salaries of the district court judge and each chief court clerk in addition to the operational expense of the district court [subdivision (b)(1)(A)(i)(ii)]. According to Attorney General Opinion No. 1999-207 the salaries of deputy court clerks would be included in “operational expense”. However, the division of expense for district court can be otherwise if delineated for a specific district court(s) in state law or by local agreement of the political subdivisions.
Until January 1, 1998 county government had full responsibility for the financial operation of public defender offices – including salaries. That changed with the passage and enactment of Act 1341 of 1997 to phase in the transfer of funding of the state trial court system from county government to the State of Arkansas. This act of the legislature made public defenders state employees, but left counties with some financial responsibility for the funding of public defender operations.
With the passage of Act 1341 of 1997 county government had to relinquish 85% of the amount certified as having been collected during calendar year 1994 for the purpose of funding the office and operation of the public defender. This money had been available each year in the County Administration of Justice Fund for use in funding the public defender. County government gave up 85% of this funding source for the State to take over the salaries for public defender offices and counties retained the other 15% to pay for office operations.
Section 12 of Act 1341 of 1997 [Funding of Public Defenders.] was codified as A.C.A. 16-87-302 and breaks down the responsibility for the funding of public defenders.
The State of Arkansas is responsible for: (1) salaries of public defenders; (2) salaries of secretaries and other support staff of the public defender’s office; and (3) the payment of the costs of certain expenses. Those expenses are outlined in A.C.A. 16-87-212 which are expenses regarding the defense of indigents and include, but are not limited to, fees for appointed counsel, expert witnesses, temporary investigators, testing, and travel.
County government is responsible for the payment of the following for public defenders: (1) the cost of facilities, equipment, supplies, and other office expenses necessary to the effective and efficient operation of the public defender’s office; and (2) the compensation of additional personnel within the office of the public defender, when approved in advance by the quorum court.
One final note – read Arkansas Attorney General Opinion No. 2004-079 for some insight on the transition of funding for public defenders from counties to the State.
The general answer to the question is “no” – but there are some exceptions to the rule. There is no state law that specifically says you can transfer from General to Road but not vice versa. The law is “unwritten” and is a conclusion of deductive reasoning using the laws that are written concerning county government accounting practices, Attorney General Opinions, and case law.
The premise is this – the County General Fund is made up of “general” or unrestricted revenues of the county. General revenues of the county can be spent for any legal expenditure of the county. Therefore general funds of the county can be transferred through an appropriated transfer to the Road & Bridge Fund or any other fund of the county where those funds can then be appropriated and spent for whatever purpose the receiving fund is established for.
However, the Road Fund and many other funds on the books of the county are “Special Revenue” funds – which mean they are restricted use funds. They are used to account for the proceeds of specific revenue sources that are legally restricted to expenditures for specific purposes. Even general funds of the county that are transferred to a “special revenue” fund take on the persona and expenditure restrictions of that fund. Therefore, “special” or “restricted” revenue funds cannot, as a general rule, be transferred to County General for general purpose expenditures.
The only legal way that Road & Bridge funds (or other special revenue funds) could be transferred to County General would be in the event of an error. Here is an example: A legitimate road expense was inadvertently paid with general fund revenues. Upon discovery of the error a county court ordered transfer from Road to County General could be made to reimburse the general fund for the legitimate road fund expenditure. The court order should actually be written in such fashion to accomplish a reduction of expenditures in the general fund and an increase of expenditures in the road fund.
As mentioned earlier, there are a few exceptions to the rule. Normally “special revenues” or “restricted funds” are just that – they can be used only for the purposes set out in law. But, in the case of some special revenue funds the law establishing the fund(s) allows for an exception. State law allows an appropriated transfer of funds from a few of the county official special revenue funds to the general fund at the discretion of the official for whom the fund was established. Those exceptions include the:
As a general rule we think of the duties and responsibilities of the county constitutional officers [county elected officials] being set forth by the Arkansas Constitution and state law as enacted by the state legislature. However, Amendment 55 to the Arkansas Constitution gave some latitude in that area to the quorum court – the legislative body of county government.
Amendment 55, Section 1(a), states that “a county acting through its Quorum Court may exercise local legislative authority not denied by the Constitution or by law.” The enabling legislation of Amendment 55, Act 742 of 1977, sheds quite a bit of light on the question of the authority of a quorum court to add extra duties to an elected official.
Section 69 of Act 742 of 1977, codified as A.C.A. 14-14-801, simply restated Amendment 55, Section 1(a) saying that “county government acting through its county quorum court, may exercise local legislative authority not expressly prohibited by the Arkansas Constitution or by law for the affairs of the county.” There is not a state law or constitutional provision expressly prohibiting a quorum court from prescribing additional duties of elected county officials. Arkansas Code Annotated 14-14-801(b)(10) & (13) go on to say, respectively that the quorum court’s legislative authority includes the power to “provide for any service or performance of any function relating to county affairs;” and to “exercise other powers, not inconsistent with law, necessary for effective administration of authorized services and functions.”
The authority of a quorum court to add or assign duties to an elected official is more clearly delineated in a couple of other codes – which were also a part of the enabling legislation of Amendment 55. Section 108 of Act 742 of 1977, provisions pertaining to the compensation of elected county officers state that the annual salary includes compensation “for all other services performed as provided by the Arkansas Constitution, by law, or by county ordinances.” And plainly, under A.C.A. 14-14-702(2) [Act 742 of 1977, Section 100] “any function or duty assigned by statute may be reassigned by ordinance.”
How far can a quorum court go in reassigning or adding duties to an elected official? Each case would require consideration of the office and additional duties assigned. There are a couple of things in particular to be concerned about. First, a county quorum court cannot completely reorganize county government by simply reassigning duties. Although Amendment 55, Section 2(b) allows for the reorganization of county government, there is a procedure to follow as set out in Arkansas Code Annotated, Title 14, Chapter 14, and Subchapter 6. Secondly, there would be a limitation based upon the separation of powers doctrine. The Quorum Court is the legislative branch of county government – and as such cannot micro-manage or significantly interfere with executive powers.
The answer to the question is answered by Section 5 of Amendment 55 which provides that “compensation of each county officer shall be fixed by the Quorum Court within a minimum and maximum to be determined by law. Compensation may not be decreased during a current term……”
The minimums and maximums have been established by the legislature in Arkansas Code Annotated 14-14-1204 for the following county constitutional officers: (1) county judge; (2) sheriff and ex officio collector of taxes; (3) collector of taxes, where established by law; (4) circuit clerk; (5) county clerk, where established by law; (6) assessor; (7) treasurer; (8) coroner; and (9) surveyor. Also, A.C.A. 14-14-1210 enacted by Act 320 of 2009 provides for a cost-of-living adjustment to be added to the minimums and maximums. This COLA became effective with the 2011 county budget year and does NOT automatically require an increase in salary. The provisions of A.C.A. 14-14-1210 simply provide a process for adjusting or indexing the minimum and maximum salaries to be paid to county officials.
The quorum court does have the authority to set salaries of these elected county officials anywhere between the minimums and maximums established by law, however, under the language of Amendment 55 those salaries may not be decreased during a current term. A.C.A. 14-14-1203(d) provides for the implementation of a legal decrease in salary stating, “Any decrease in the annual salary or compensation of a county officer shall not become effective until January 1 following a general election held after such decrease shall have been fixed by the quorum court of the county.”