Opinions released in March, 2010
Showing records 1 - 10 of 12 results
| Opinion number: 2010-030 | |
| Requestor: Lowery, Mark Sponsor, Initiated Measure | Release date: 03/25/2010 |
| Full Opinion: HTML or PDF | |
| Request for certification of the popular name and ballot title of a proposed constitutional amendment to exempt proceeds from a life insurance policy from taxation, creditor claims and other purposes. RESPONSE: Rejected due to ambiguities in the text of the proposed measure. | |
| Opinion number: 2009-190 | |
| Requestor: Casady, Ken Pros Att'y, 22nd Judicial District | Release date: 03/19/2010 |
| Full Opinion: HTML or PDF | |
| When the governing body of a municipality approves an annexation ordinance under A.C.A. 14-40-503, should the county assessor begin applying city millage to the real property in the newly annexed area immediately upon being notified by the municipality, or should the assessor wait until the thirty (30) time period for challenging the annexation in circuit court has elapsed? Q2) When the governing body of a municipality approves an annexation ordinance under A.C.A. 14-40-503, should the county clerk change the voting precincts of the newly annexed area immediately upon being notified by the municipality, or should the clerk wait until the thirty (30) day time period for challenging the annexation in circuit court has elapsed? Q3) If suit is brought in circuit court within the thirty (30) day challenge period mentioned in A.C.A. 14-40-503, should the county assessor and the county clerk wait until final adjudication of the matter is complete and all appeals are exhausted before taking any of the above-cited actions? Q4) When the governing body of a municipality approves an annexation ordinance under A.C.A. 14-40-503 and suit is filed challenging that decision in circuit court within the 30-day period, does the county court hold in abeyance any decision on petitions filed and pending before the county court for voluntary annexation under A.C.A. 14-40-601, where a decision regarding such petitions would affect the distance of city limits adjoining the unincorporated area's perimeter under A.C.A. 14-40-501(a)(1)(B)? RESPONSE: Q1) Although the issue invites legislative clarification, it is my opinion that the county assessor in all likelihood should begin applying city millage to the real property in the newly annexed area immediately upon being notified by the municipality that an annexation ordinance under A.C.A. 14-40-503 has been approved. Q2) In accordance with the conclusion just stated, I believe the county clerk should change the voting precincts upon being notified of the city council's approval of the annexation, rather than waiting until the thirty (30) day time period for challenging the annexation in circuit court has elapsed. Q3) In light of the foregoing, I believe the answer to your third question is "no." Q4) Given my opinion that an annexation pursuant to A.C.A. 14-40-503 is effective as of the date of the city council's approval, I believe it would be improper for the county court to act on pending petitions for voluntary annexation under A.C.A. 14-40-601 until and unless the annexation under A.C.A. 14-40-503 is declared void by a court. | |
| Opinion number: 2010-031 | |
| Requestor: Daniels, Charlie Secretary of State | Release date: 03/18/2010 |
| Full Opinion: HTML or PDF | |
| What will be the effective date of legislation that did not carry an emergency clause or specified effective date that was passed during the 87th General Assembly, Fiscal Session, which adjourned sine die on March 4, 2010? RESPONSE: June 3, 2010. (Starting with the first full day after adjournment, and counting ninety full days, acts with no emergency clause or specified effective date become effective on the ninety-first day.) | |
| Opinion number: 2010-025 | |
| Requestor: Phillips, Winford E. Colonel, AR State Police | Release date: 03/17/2010 |
| Full Opinion: HTML or PDF | |
| Section 23-112-606 of the Arkansas Code requires anyone who "engage[s] in business as a used motor vehicle dealer" to obtain a license. Another subsection in that statute exempts secured parties from the licensing requirements when they are selling repossessed, used vehicles. If an online auction company acts as the secured-party's agent, does the secured-party's exemption extend to the agent? RESPONSE: Yes, in my opinion. If the secured party and the online auction company are, in fact, in an agent-principal relationship, then the secured party's exempt status extends to the online company via their agent-principal relationship. | |
| Opinion number: 2010-005 | |
| Requestor: Marks, Teresa Director, AR Dept. of Environmental Qual | Release date: 03/17/2010 |
| Full Opinion: HTML or PDF | |
| Must a regional solid waste management district board ("RSWMDB") solicit bids under state or county procurement laws if it chooses to secure a contract for services to manage waste tires and establish waste tire collection centers? Q2) Is it permissible for a RSWMDB to create a corporation and award a contract to that corporation to process waste tires and establish waste tire collection centers? Q3) Is the White River Regional Management Corporation ("WRRMC") required to report how the funds it receives through the waste tire program have been expended on waste tire projects, the amount of waste tire funds it holds in reserve and any other information required by ADEQ in order to trace how the grant monies given to White River Regional Solid Waste Management District Board ("WRRSWMDB") are used? Q4) Is it permissible for the WRRMC to collect and retain disposal fees for non-fee tires and other District Boards' tires that are disposed or processed at this site, including tires that are accepted "at the door" rather than being collected and transported from other locations? Q5) If so, should the WRRMC pay a tipping fee to the WRRSWMDB? Q6) Must any fees collected by the WRRMC be report to ADEQ? Q7) May ADEQ deny awarding tire grant monies to the WRRSWMDB if the WRRMC has an overage of waste tire funds in reserve? RESPONSE: Q1) Yes, if the contract will exceed $20,000. Under ACA 8-6-704(c), a RSWMDB must adopt and follow county purchasing procedures, ACA 14-22-101 et seq., which require competitive bidding for contracts of the stated size, except contracts for personal services. A contract for waste tire disposal services is not a contract for personal services. Q2) No. As stated in the response to Q1), a RSWMDB may not award such a contract without bidding. In addition, a RSWMDB has no authority to unilaterally create a corporation. Q3)-Q7): I decline to answer these questions because, with respect to these particular parties, I am not in possession of all the relevant facts and, with respect to a hypothetical RSWMDB and an unrelated contractor chosen through competitive bidding, my answers might be misinterpreted to apply to these particular parties. | |
| Opinion number: 2009-203 | |
| Requestor: Whitaker, Ruth R, State Senator | Release date: 03/16/2010 |
| Full Opinion: HTML or MS Word | |
| Are provisions of Fayetteville City Ordinance No. 5280, enacted for the purpose of regulating rock quarrying facilities so the facilities will not become nuisances, enforceable? Q2) Does the ordinance violate the freedom of privacy? RESPONSE: As for the ordinance's enforceability, I take it that you are asking whether (1) the various regulations in the ordinance fall within the city's police powers, and (2) whether those regulations conflict with state law. As explained further below, I believe most of the regulations likely fall within the city's police power and do not conflict with any state statute. But one provision acts as a kind of access-to-information provision, which I believe may be suspect. As for whether the ordinance "violates the freedom of privacy," I take it that you are asking whether any provision in the ordinance violates the right of privacy contained in Arkansas's Constitution. I do not believe the ordinance violates that right. | |
| Opinion number: 2009-200 | |
| Requestor: Gibbons, David L. Pros. Att'y, 5th Judicial District | Release date: 03/16/2010 |
| Full Opinion: HTML or MS Word | |
| Do the provisions of A.C.A. 5-65-108 and 5-4-301(a)(1)(D) effectively preclude persons accused of DWI offenses from being placed in a Pre-Adjudication Drug Court Program created by A.C.A. 16-98-301 et seq.? Q2) Do the provisions of A.C.A. 5-65-108 and 5-4-301(a)(1)(D) effectively preclude persons accused of DWI offenses from being placed in a Post-Adjudication Drug Court Program created by A.C.A. 16-98-301 et seq.? RESPONSE: Q1) No. A.C.A. 5-65-108 prohibits treatment of DWI defendants under the First Offender Act. Drug court programs are not First Offender Act programs. A.C.A. 5-4-301(a)(1)(D) prohibits suspended sentences and probation in DWI cases. Suspension and probation are post-adjudication dispositions. The statute accordingly does not prohibit pre-adjudication drug court placement. Q2) No. Re A.C.A. 5-65-108, see response to question 1. Re A.C.A. 5-4-301(a)(1)(D), drug court does not involve suspension of sentence, and a statutory exception allows supervisory probation of DWI offenders, probably including drug court placement, provided all mandatory penalties are also imposed. OPINION 2009-200A (Released 4/30/2010): The answers given in Opinion 2009-200 are confirmed, but 1) the opinion's citation of A.C.A. 16-98-303(g) was misplaced, that statute does not suggest misdemeanor DWI offenses may be expunged and dismissed, and the opinion should not be interpreted to state any position on the question of expungement and dismissal of DWI offenses; and 2) the opinion states no position, and should not be interpreted as stating a position, on whether A.C.A. 5-65-107(a), or any statute other than the two statutes cited in Q1) above, prevents placement of a DWI case in a drug court. | |
| Opinion number: 2009-198 | |
| Requestor: Watson, Dana Dean Chair, Sex Offender Assessment Comm | Release date: 03/16/2010 |
| Full Opinion: HTML or MS Word | |
| Is the registry information of a juvenile sex offender, who is ordered by the juvenile court to register with the Arkansas Sex Offender Registry pursuant to A.C.A. 9-27-356, subject to disclosure? If so, to who is disclosure authorized? Q2) Is a juvenile adjudicated delinquent of a sex offense in another state and required to register as a sex offender in that state, required to register as a sex offender in Arkansas if the juvenile sex offender is living, working, attending school or other training in Arkansas? RESPONSE: Q1) Probably yes, pending legislative clarification. See A.C.A. 12-12-913 (disclosure provision of Sex Offender Registration Act). Disclosure is to be based on guidelines of the Sex Offender Assessment Committee. Q2) This is unclear under the current statutes. While I suspect that a court faced with the question would conclude that section 9-27-356's registration requirements do not apply to such a juvenile offender, legislative clarification is necessary to definitively resolve the question. | |
| Opinion number: 2009-164 | |
| Requestor: Hopkins, George Ex. Dir., AR Teacher Retirement System | Release date: 03/16/2010 |
| Full Opinion: HTML or MS Word | |
| Does the Board of Trustees of a public higher education institution have the authority to adopt a policy that its part time employees, including student workers, are not benefit eligible and are not required to be enrolled in either ATRS or the employer's alternate retirement plan? Q2) Is a higher education institution employing an active ATRS member part-time concurrently with a mandatory ATRS covered employer required to report salary and pay member/employer contributions to ATRS or, may the Board of Trustees determine that these part-time employees are not benefit eligible? Q3) If a former public school employee is hired by a higher education institution after he/she is drawing benefits from ATRS, is the higher education institution allowed to enroll them in the alternate plan? If the answer to the proceeding question is in the affirmative, is the higher education employer required to pay contributions on the retiree's salary to ATRS? RESPONSE: Please see the opinion for responses. | |
| Opinion number: 2010-024 | |
| Requestor: McGeeney, Ryan Reporter, The Benton County Daily Record | Release date: 03/09/2010 |
| Full Opinion: HTML or PDF | |
| Is the decision of the custodian of records to deny release of records pertaining to the termination and resignations of three former Bentonville School District employees in response to a Freedom of Information Act request consistent with provisions of the FOIA? RESPONSE: My duty under subsection 25-19-105(c)(3)(B)(i) is to state whether the decision of the records custodian is consistent with the FOIA. Not having seen the records in question, I cannot opine about whether any specific record must be released. Instead, I can only set out the legal standards the custodian must apply to determine whether the requested documents must be disclosed in whole or part. As the discussion in the opinion makes clear, I believe the records custodian has probably mischaracterized the nature of the requested records. He needs to apply the appropriate definitions and tests explained in the opinion to determine whether the documents must be released | |
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