Association of Arkansas Counties Annual Conference August 20-22, 2014 The 46th Annual Conference will kick off August 20th at the newly renovated Little Rock Marriott Hotel (formerly The Peabody) and Statehouse Convention...
Frequently asked questions for Justices of the Peace.
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 Section 17 of Arkansas Constitution Amendment 59 repealed the original Article 16, Section 5 and substituted the current wording which, in part, says: “all real and tangible personal property subject to taxation shall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 Amendment 61 repealed Arkansas Constitution, Amendment 3, which also allowed a maximum 3 mill road tax, but under Amendment 3 the tax had to appear on the ballot every general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.
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.
Justices of the Peace cannot be paid a per month salary. Arkansas law – A.C.A. 14-14-1205 requires that the compensation of justices of the peace be per diem. The term per diem literally means “by the day” [Latin]. In the case of per diem compensation for justices of the peace it means “a monetary daily allowance or a daily fee” [Black’s Law Dictionary and A.C.A. 14-14-1205(a)(2)(A)] for attending a meeting.
The law specifically says, “The per diem compensation for justices of the peace attending any official, regular, special, or committee meeting of a quorum court shall be fixed by ordinance in each county [Reference: A.C.A. 14-14-1205(a)(1)(A)]. The minimum and maximum amounts of per diem allowed justices are set forth in A.C.A. 14-14-1205(B)(i)(ii)(iii). The minimum per diem for a regular meeting is $125. There is no established minimum for special meetings or committee meetings. Special meetings and committee meetings could technically be set at “zero”. The maximum amounts of per diem compensation per calendar year are set according to the size of the county.
Until a revision of the law in the late 90s a justice of the peace had to attend the meeting – whether it was a regular, special or committee meeting – in order to receive the per diem compensation. That is still the case except for one exception. A.C.A. 14-14-1205(a)(2)(B) [added by Act 749 of 1999] allows a justice of the peace to “receive per diem compensation for one (1) meeting per year for which the member is absent due to an emergency or for personal reasons.” Justices of the Peace are not to be paid for more than one missed meeting per year.
In addition to the per diem compensation for attending meetings of the quorum court or a committee thereof a justice of the peace may receive expense reimbursement or expense allowances provided members of the quorum court through the auspices of A.C.A. 14-14-1203(a)(b)(c). Also, counties are allowed to provide medical insurance coverage for members of the quorum court. The allowance of medical insurance coverage became legal with the passage of Act 363 of 1997 which added (a)(3) to A.C.A. 14-14-1205.
A justice of the peace cannot be paid as a county employee. A.C.A. 14-14-1205(c) states, “No justice of the peace shall receive compensation as a county employee or deputy, nor shall any justice receive compensation or expenses from funds appropriated by the quorum court for any services performed within the county, other than as provided by this subchapter.” This statute would then prohibit a quorum court member from receiving compensation as a county employee. Dual service would thus be prohibited -unless it was purely volunteer service by the quorum court member or, in other words – an employee without pay. And even then, with some county positions you would run into problems with the common law doctrine of incompatibility or a conflict of interest for “incompatibility” purposes.*
*Note: There are at least three good Attorney General Opinions on this matter. They are AG Opinion Numbers 1992-110; 1996-077; and 1997-143.
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 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.”