Opinions released in September, 2009
Showing records 1 - 10 of 10 results
| Opinion number: 2009-111 | |
| Requestor: Ingram, Keith State Representative | Release date: 09/30/2009 |
| Full Opinion: HTML or PDF | |
| For assessment purposes, is a parcel of land still contiguous if separated by water, a public or private road, a railroad, a power line, or other right of way? RESPONSE: Looking to other jurisdictions and based on what appears to be the general authority in this area, the answer is likely "yes." A right-of-way probably will not defeat contiguity. This assumes that the question is asked in the context of the listing and valuing of land for general property tax purposes. See A.C.A. 26-26-717; 26-26-1202; 26-28-101. However, a number of factors may bear on the determination whether particular taxable real estate is to be assessed as one parcel or as separate parcels. Contiguity may not alone be determinative. | |
| Opinion number: 2009-165 | |
| Requestor: Leflar, Missy Director, Human Resources Division | Release date: 09/29/2009 |
| Full Opinion: HTML or PDF | |
| Is the determination of the custodian of records to withhold release of termination documents in response to a request under the Freedom of Information Act ("FOIA"), citing lack of a compelling public interest, consistent with provisions of the FOIA? RESPONSE: In my opinion, your decision to withhold these documents is not consistent with the FOIA. Further, if you decide to release the documents, I believe the FOIA requires you to make certain redactions. | |
| Opinion number: 2009-157 | |
| Requestor: Kerr, Allen State Representative | Release date: 09/29/2009 |
| Full Opinion: HTML or PDF | |
| Is APERS required, under the Arkansas Freedom of Information Act ("FOIA"), to provide a list of public officials that are drawing retirement benefits from APERS and are serving in an elected position upon request? Q2) Is APERS required, under the FOIA, to disclose a list provided by Legislative Audit of elected or public officials that it found to be drawing retirement benefits from APERS, while also employed by an employer covered by the system? RESPONSE: The answers depend upon whether the lists fall under a specific exception, A.C.A. 24-4-1003. The inquiry focuses on the specific information contained in the lists, with an eye toward the purpose(s) for which such information is kept. However, APERS, not my office, must decide this matter in the first instance, as it is the custodian of the records and the authority on the nature of the material contained within its records. See opinion for discussion of the relevant legal test for the records' disclosure. | |
| Opinion number: 2009-125 | |
| Requestor: Pennartz, Tracy State Representative | Release date: 09/29/2009 |
| Full Opinion: HTML or PDF | |
| (1) If a municipality creates a housing authority pursuant to A.C.A. 14-169-207, what, if any, control does the municipality have over the housing authority? (2) Can a municipality apply its formally adopted Code of Business Conduct to the housing authority and its board members? (3) If so, can such Code of Business Conduct be more stringent than the applicable Arkansas statute? (4) Under applicable Arkansas statutes, is a housing authority required to adopt its own Code of Ethics or Code of Business Conduct? If so, can the housing authority's code be less stringent than the municipality's code? (5) Assume a housing-authority commissioner owns property situated on a site where a proposed housing-authority project may be built. If that commissioner participates in the discussions about whether to approve the proposed project, does that commissioner violate A.C.A. 14-169-209? (6) Assume a housing-authority commissioner owns property situated on a site where a proposed housing-authority project may be built. If that commissioner failed to inform the board of this fact "in writing" would A.C.A. 14-169-209 have been violated? (7) Assume a housing-authority commissioner owns residential property situated across the street from a proposed housing-authority project. Does the ownership of that property constitute a "conflict of interest" pursuant to A.C.A. 14-169-209? RESPONSE: As for your first question, municipalities have limited direct control and limited indirect control over housing authorities. Some of these controls are described in more detail in the opinion. In my opinion, the answer your second question is "no," which renders your third question moot. The answer to your fourth question is "no." The answer to your fifth question is unclear. The answers to your sixth and seventh questions are "yes" and "no," respectively. | |
| Opinion number: 2009-110 | |
| Requestor: Baker, Tommy State Representative | Release date: 09/29/2009 |
| Full Opinion: HTML or PDF | |
| In light of the fact that Harvell v. Blytheville School District, 33 F3d 910 (1994), has been resolved, does the Blytheville School District Board still qualify for exemption status pursuant to A.C.A. 6-13-631(g)(2)? Q2) Can the Blytheville School District Board continue to consist of eight (8) members in violation of provisions of A.C.A. 6-13-635? RESPONSE: Q1) A.C.A. 6-13-631g(2) indeed removes the exemption from the statutory requirement regarding the number of school board members for districts that have resolved litigation. However, various other statutory exemptions exist that may continue to apply. Among these are provisions exempting any district operating under a federal court order enforcing the Voting Rights Act and districts having a zoned board of directors in compliance with the Voting Rights Act. A.C.A. 6-13-631(g)(1)(A) and (C). The question of whether these exemptions apply to validate the numerical composition of the Blytheville School District is one of facts to be determined by a court. Q2) I cannot accept your premise that the membership of the Blytheville School District Board necessarily violates the provisions of A.C.A. 6-13-634, which sets the limits on board membership at five or seven or, in the case of districts having an average daily attendance of 24,000 or more, at nine. As noted, A.C.A. 6-13-631 contains various exemptions crafted to acknowledge the preemptive effect of the federal Voting Rights Act, which requires that minorities be afforded access to proportional representation. The question of whether current demographics require that the district board consist of eight members is one to be resolved by the judiciary as opposed to this executive office. I can only note that the federal courts in the past have approved the eight-member composition of the board as complying with the Voting Rights Act. Any change in this composition may well require court approval. | |
| Opinion number: 2009-099 | |
| Requestor: Glover, Bobby L. State Senator | Release date: 09/29/2009 |
| Full Opinion: HTML or PDF | |
| Does art. 1, sec. 10 of the United States Constitution, which protects against impairment of contracts, apply when a city, by ordinance, awards an exclusive franchise for citywide garbage and recycling service for residential, commercial and industrial customers within the corporate city limits? Q2) Must the City of Cabot honor the private contracts between local businesses and their current providers for garbage collection service until its expiration date regardless of the award of an exclusive franchise? Q3) If the answer to question 2 is "no," then with regard to the private contracts in conflict, can the city execute an exclusionary statement requiring businesses entering contracts after specified dates to utilize the services in accordance with the exclusive franchise ordinance? Q4) Should the proposed contract with Waste Management of Arkansas, Inc., be amended prior to its execution to reflect any date(s), which may be referenced in the answer to question 3? RESPONSE: This office cannot serve as a finder of fact. Moreover, an opinion can construe neither contracts nor municipal ordinances. For these reasons, questions such as these, i.e., contract questions regarding municipalities, must necessarily be left to the city attorney or, in the event of litigation, the courts. However, in an effort to assist you, I can and will set forth the principles of law that a court faced with this issue would apply. | |
| Opinion number: 2009-080 | |
| Requestor: Pyle, Beverly State Representative | Release date: 09/29/2009 |
| Full Opinion: HTML or PDF | |
| (1) Does A.C.A. 5-73-306(a)(16), which prohibits concealed carry licensees from carrying a concealed handgun into a church, violate the Free Exercise of Religion Clause of the First Amendment to the United States Constitution? (2) Does A.C.A. 5-73-306(a)(16), which prohibits concealed carry licensees from carrying a concealed handgun into a church, violate the Establishment of Religion Clause of the First Amendment to the United States Constitution? (3) Does A.C.A. 5-73-306(a)(16), which prohibits concealed carry licensees from carrying a concealed handgun into a church, violate the Religious Land Use and Institutionalized Persons Act ("RLUIPA") (42 U.S.C. 2000cc et seq.)? (4) If your answer is yes to any of the above questions, what effect does that have on the enforcement of A.C.A. 5-73-306(a)(16)? (5) Does enforcement of A.C.A. 5-73-306(a)(16) create a cause of action and potential civil liability for a civil rights violation by the government entity that attempts to enforce the statute? (6) Suppose a landowner or possessor of land permits his or her guests or licensees to carry handguns on the landowner or possessor's land. Does A.C.A. 5-73-120(c)(1) provide a defense to prosecution of such a guest or licensee? RESPONSE: Your first two questions are issues of first impression because no court, in Arkansas or elsewhere, has addressed them. For the reasons indicated in the discussion in the opinion, a comprehensive answer involves analyzing several discreet legal issues, any one of which could, under certain conditions, render the statute unconstitutional. Most of those discreet legal issues involve finding facts. Because I cannot be a fact finder when issuing opinions, I cannot analyze the set of legal issues that require factual determinations. Therefore, this limitation renders my conclusions partial and tentative. With the limited nature of my review in mind, it is my opinion that if a court were to consider the single legal issue I am able to analyze, it would likely uphold A.C.A. 5-73-06(a)(16) (Supp. 2009) under both the Free Exercise Clause and Establishment Clause of the First Amendment to the United States Constitution. As for your third question, in my opinion, as explained more fully in the opinion, a court would probably hold that subsection 5-73-306(a)(16) does not violate the Religious Land Use and Institutionalized Persons Act (RLUIPA) because subsection 5-73-306(a)(16) is not a land-use regulation within RLUIPA's scope. Given my conclusions in response to your first three questions, your fourth and fifth questions are moot. The answer to your sixth question is "no," because the wording of A.C.A. 5-73-120(c)(1) indicates that the defense to prosecution is for possessors themselves, not possessors' guests or licensees. | |
| Opinion number: 2009-161 | |
| Requestor: Thompson, Camille Staff Attorney, City of Bentonville | Release date: 09/15/2009 |
| Full Opinion: HTML or MS Word | |
| Custodian of the records requests an opinion from this office regarding the release of certain documents within a former police officer's personnel file and any other materials compiled to form the basis for her termination and requested law enforcement decertification. RESPONSE: The custodian's decision is not entirely consistent with the FOIA. A number of redactions are required pursuant to the FOIA or other specific law, including the constitutional right to privacy. The custodian is also proposing to release some employee evaluation or job performance records that are not subject to release under the applicable test. Additionally, one record is subject to a separate, specific exemption in the law, and one personnel record is in my opinion exempt from disclosure. See Opinion for detailed discussion. | |
| Opinion number: 2009-094 | |
| Requestor: Faris, Steve State Senator | Release date: 09/09/2009 |
| Full Opinion: HTML or PDF | |
| Does A.C.A. 17-92-102(a) permit duly licensed physicians with prescriptive authority to distribute for a profit pre-packagd pharmaceuticals which they have prescribed to their own patients? Q2) Does A.C.A. 17-92-102(a) permit duly licensed nurse practitioners with prescriptive authority to distribute for a profit pre-packaged pharmaceuticals which have been prescribed to patients? Q3) Does A.C.A. 17-92-102(a) permit duly licensed physician assistants with prescriptive authority to distribute for a profit pre-packaged pharmaceuticals which have been prescribed to patients? Q4) Does A.C.A. 17-92-102(a) permit duly licensed dentists with prescriptive authority to distribute for a profit pre-packaged pharmaceuticals which they have prescribed to their own patients? RESPONSE: Assuming the questions refer to a practice commonly known as "point-of-care dispensing," the answer to Q1) is that A.C.A. 17-92-102(a), standing alone, does not permit any particular activity. Licensed physicians may, however, engage in point of care dispensing pursuant to A.C.A. 17-95-102. Additionally, the authority to engage in such activity for a profit can probably be inferred from the language of that section. Q2) Neither A.C.A. 17-92-102(a) nor any other provision permits nurse practitioners with prescriptive authority (advanced nurse practitioners granted prescriptive authority by the Arkansas State Board of Nursing pursuant to A.C.A. 17-87-310) to distribute pre-packaged pharmaceuticals for a profit, i.e., engage in point-of-care medication dispensing. Q3) Neither A.C.A. 17-92-102(a) nor any other provision permits physician assistants with prescriptive authority (physician assistants who have been properly delegated prescriptive authority by their supervising physician(s) pursuant to A.C.A. 17-105-108) to distribute pre-packaged pharmaceuticals for a profit. Q4) Dentists may engage in point-of-care dispensing pursuant to the rules and regulations of the Board of Dental Examiners. The authority to engage in such activity for a profit can probably be inferred from the language of the regulation. | |
| Opinion number: 2009-156 | |
| Requestor: Witherell, Stacey Labor & Relations, Dept of Human Res | Release date: 09/03/2009 |
| Full Opinion: HTML or PDF | |
| Is the custodian's interpretation of the Freedom of Information Act in responding to a request for pre-employment physical fitness tests for individual police applicants, the list of pre-employment police applicants who were disqualified because of physical test requirements under Chief Thomas' administration, the list of police recruits that were terminated or resigned under Chief Thomas' administration, the list of police officers that were hired under Chief Thomas' administration, and all disciplinary files on Officer Edmond Brooks and Officer Josh Hastings, consistent with provisions of the Freedom of Information Act ("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. Your responses to the individual requested categories seem to indicate that you have decided which legal and factual tests apply to the requested documents. But because you have not included the records you intend to release, I cannot opine about the releasability of any specific document or the need to redact any specific piece of information from an otherwise releasable document. I can only opine about whether your responses are consistent with the FOIA. In that vein, I believe your responses to questions two, three, and five are consistent with the FOIA. Question one is outside the scope of an opinion under subsection 25-19-105(c)(3)(B). Depending on the circumstances, your response about resignation letters in question four may be inconsistent with the FOIA. As explained more fully in the opinion, your responses to question six and the portion of question four pertaining to employee-evaluation records must include a review of all three elements that must be met before such documents can be released. | |
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