Opinions released in November, 2009
Showing records 1 - 10 of 10 results
| Opinion number: 2009-195 | |
| Requestor: Kelloms, James H. Frmr Ark State Trpr, c/o Jean Langford | Release date: 11/17/2009 |
| Full Opinion: HTML or PDF | |
| Is the decision of the custodian of records to release documents in this former officer's personnel file after redacting all non-public information, consistent with provisions of the Arkansas Freedom of Information Act (FOIA)? RESPONSE: Not having seen the personnel file, I cannot opine regarding the release of any specific records. The opinion discusses the legal standards the custodian must apply to determine whether the particular documents contained in the file must be disclosed, focusing on the tests for the release of "personnel" and "evaluation and job performance records." | |
| Opinion number: 2009-122 | |
| Requestor: Abernathy, Richard (Dr.) Chair, ATRS Board of Trustees | Release date: 11/17/2009 |
| Full Opinion: HTML or PDF | |
| Is the Arkansas Teacher Retirement System ("ATRS") policy of not reimbursing employers for contributions made by ATRS employers for an employee working less than thirty (30) days in the fiscal year a lawful policy under the Arkansas Code? Q2) Is the ATRS Board authorized to adopt a policy to reimburse employers' contributions for employees who work less than thirty (30) days in a fiscal year and remain in compliance with the Arkansas Code? RESPONSE: "Yes" and "No," respectively. The ATRS policy is lawful and indeed required, in my opinion, under the Arkansas Code. Accordingly, the Board in my opinion lacks the authority to adopt a policy providing for reimbursement of such contributions. See A.C.A. 24-7-406; 24-7-501; 24-7-711. See Opinion for discussion. | |
| Opinion number: 2009-163 | |
| Requestor: Miller, Paul State Senator | Release date: 11/05/2009 |
| Full Opinion: HTML or PDF | |
| Do provisions of the attached church by-laws, as amended, conflict with and possibly violate provisions of A.C.A. 4-28-212? RESPONSE: You have not provided me with enough information to address your question. Depending on the legal status of the "church," it may or may not be subject to the requirements listed in section 4-28-212. In any event, A.C.A. 25-16-701 prohibits me from engaging or assisting in the private practice of law. Therefore, I cannot opine on whether this church's by-laws are contrary to section 4-28-212. Even assuming, however, that section 4-28-212 does apply to this "church," the statute specifically permits the by-laws of a regulated entity to prohibit voting by proxy: "In all matters . . . a member may vote in person or by proxy, unless the . . . bylaws require such votes to be cast in person...." A.C.A. 4-28-212(c)(1) (Repl. 2001). | |
| Opinion number: 2009-158 | |
| Requestor: Threet, John Pros. Att'y, 4th Judicial District | Release date: 11/05/2009 |
| Full Opinion: HTML or PDF | |
| (Q1) The County JudgeÆs office deals in little or no cash and keeps little on hand. In response to a [FOIA] request, the County Judge required that payment [for copying charges] be tendered by check or cash in the exact amount due. Where these requirements lawful? (Q2) Would your opinion be the same if the request was to another county office that does keep sufficient cash on hand such that it could make change? RESPONSE: I cannot definitively answer either question for two reasons. First, the FOIA is silent on whether custodians must make change for a requester who is paying for copying charges. Second, the most relevant guidance the FOIA provides is very fact-based, and I am not a fact finder when issuing opinions. The FOIA requires custodians provide requestors "reasonable access" and "reasonable comforts." Determining whether a custodian has provided reasonable access and reasonable comforts requires finding facts. Because I am not a fact finder when issuing opinions, I cannot definitively address your questions. | |
| Opinion number: 2009-109 | |
| Requestor: Carroll, Richard L. State Representative | Release date: 11/05/2009 |
| Full Opinion: HTML or PDF | |
| Do the functions and duties of the Department of Human Services State Institutional Systems ("SIS") Board include the functions and duties set forth in A.C.A. 20-47-109? Q2) If the answer to question one is "yes," does A.C.A. 9-20-121(a) prohibit the Director of the Arkansas State Hospital from submitting the results of his/her investigation, as required under A.C.A. 20-47-109(b)(2), to the SIS Board? Q3) If the answer to question two is "no," can the SIS Board lawfully delegate the functions and duties set forth in A.C.A. 20-47-109 to the Arkansas State Hospital Governing Authority? Q4) If the answer to question three is "yes," what procedure must the SIS Board take for the delegation to be lawful? RESPONSE: As for your first question, the general functions and duties of the SIS Board are set out in A.C.A. secs. 25-10-401 to 25-10-403 (Repl. 2002 & Supp. 2009) and certain regulations of the Department of Human Services. The General Assembly appears to have required the SIS Board to review abuse reports pursuant to A.C.A. 20-47-109 (Repl. 2001). In my opinion, the answer to both your second and third question is "no." The answer to your third question renders your fourth question moot. | |
| Opinion number: 2009-159 | |
| Requestor: Chessir, Bryan L. Pros. Att'y, 9th Judicial District West | Release date: 11/04/2009 |
| Full Opinion: HTML or PDF | |
| What is the meaning of the term "must" under A.C.A. 27-21-106, governing when or whether an ATV operator is allowed to travel on public streets or highways to get from one field to another? Q2) What is the meaning of the phrase "farming operation"? Q3) How does A.C.A. 27-21-109, which provide the defense to prosecution under 27-21-106, work in conjunction with that section? Q4) Does hunting operation mean any individual hunting for pleasure, or for-profit ventures with a group of members or club? RESPONSE: Q1) The exception language indicates that a farmer or hunter may drive an ATV on the public roads when he or she is driving the ATV while engaged in a farming or hunting operation AND the route that he or she has to take to get from one field to another necessarily requires him or her to drive on a public road. Q2) This is undefined, but a court might construe it to mean simply an act related to the business of operating a farm. This is a fact question, but raising animals for show probably constitutes farming. Q3) The fact that operation of an ATV outside of city limits is one of the elements of the defense set forth by 27-21-109 does not automatically make operation of an ATV inside of the city limits one of the elements of the offense set forth by 27-21-106. Q4) this might simply mean any process undertaken as the act of a hunter, which presumably would include acts undertaken by individuals hunting for pleasure as well as those undertaken by profit-making enterprises. | |
| Opinion number: 2009-102 | |
| Requestor: Madison, Sue State Senator | Release date: 11/04/2009 |
| Full Opinion: HTML or PDF | |
| Are there any statutory or constitutional provisions that would prohibit the Firemen's Pension and Relief Fund Board from reducing pension benefit amounts, which had been previously raised, as long as such benefits are not reduced below the 50% of ending pay amount established by A.C.A. 24-11-818? Q2) Does A.C.A. 24-11-807(d)(2) provide the Board further statutory authority to decrease benefits to prevent funds depletion? RESPONSE: Q1) There is no express statutory prohibition; but as I suggested in Op. 2009-049, the absence of such a statute may not be determinative of the Board's authority to effect a reduction. As for a possible constitutional prohibition, I believe such a reduction would be suspect under Ark. Const. article 2, section 17 (impairment of contract), but the question may ultimately require judicial resolution. See A.C.A. 24-11-818; 24-11-102. Q2) No. See Op. 2005-041. | |
| Opinion number: 2009-087 | |
| Requestor: Daniels, Charlie Sec'y of State | Release date: 11/04/2009 |
| Full Opinion: HTML or PDF | |
| Request to fix and declare the popular name of HJR 1007, a measure to amend Ark. Const. amend. 82 to establish criteria before authorizing the issuance of bonds for prospective employers planning an economic development project. RESPONSE: Fixed and declared as follows: AN AMENDMENT TO ARKANSAS CONSTITUTION AMENDMENT 82 REMOVING FIXED CRITERIA FOR THE ISSUANCE OF ECONOMIC DEVELOPMENT BONDS BEARING THE FULL FAITH AND CREDIT OF THE STATE OF ARKANSAS AND GIVING THE GENERAL ASSEMBLY THE AUTHORITY TO SET CRITERIA THROUGH LEGISLATION | |
| Opinion number: 2009-086 | |
| Requestor: Daniels, Charlie Sec'y of State | Release date: 11/04/2009 |
| Full Opinion: HTML or PDF | |
| Request to fix and declare the popular name for HJR 1004, a constitutional amendment concerning interest rate limits in Arkansas. RESPONSE: Fixed and declared as follows: AN AMENDMENT CONCERNING INTEREST-RATE LIMITS AND THE ISSUANCE OF GOVERNMENTAL BONDS TO FINANCE ENERGY-EFFICIENCY PROJECTS | |
| Opinion number: 2009-085 | |
| Requestor: Daniels, Charlie Sec'y of State | Release date: 11/04/2009 |
| Full Opinion: HTML or PDF | |
| Request to fix and declare the popular name for SJR 3, a constitutional amendment to create a constitutional right to hunt, fish, trap and harvest wildlife. RESPONSE: Fixed and declared as follows: AN AMENDMENT PROVIDING THAT ARKANSAS CITIZENS HAVE A RIGHT TO HUNT, FISH, TRAP, AND HARVEST WILDLIFE SUBJECT TO REGULATIONS THAT PROMOTE WILDLIFE CONSERVATION AND MANAGEMENT | |
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