April 12, 2013 The Honorable Jonathan Barnett 1980 Highway 412 West Siloam Springs, Arkansas 72761-3805 Dear Representative Barnett: I am writing in response to your request for my opinion on the following questions: RESPONSE 1. Does A.C.A. 14-42-106(d), or any other applicable statute, require a quorum of the council or aldermen to declare an office vacant because the elected or appointed official did not take the oath, or may any member of the council or any individual alderman declare the position vacant without a quorum? 2. Should A.C.A. 14-42-106(d) be interpreted as requiring the oath to be taken in ten days after the first of January, or should it be interpreted as requiring the oath to be taken in either the ten days prior or ten days after the first day of January? With respect to your first question, in my opinion, only a quorum of the council may declare an office vacant based upon the putative occupant s failure to take the oath. Notwithstanding your suggestion to the contrary, I believe any such declaration would lie in the discretion of the council rather than being mandatory. Until he takes the oath, however, any such officer will be acting in a purely de facto capacity. With respect to your second question, the statute does not specify
Page 2 any window for taking the oath for an elective office 1 ; rather, it merely provides that the council may declare an office vacant if the officeholder has not taken the oath within ten days of the January 1 following the election. Given the context of this statute as setting the earliest date by which the council may act, I interpret the statute as exposing an elective officer to a risk that his office will be declared vacant if he does not take the oath by the tenth day after the first post-election January 1. Question 1: Does A.C.A. 14-42-106(d), or any other applicable statute, require a quorum of the council or aldermen to declare an office vacant because the elected or appointed official did not take the oath, or may any member of the council or any individual alderman declare the position vacant without a quorum? The statutory provision recited in your question provides as follows: The council or aldermen shall have the power to declare the office of any elected or appointed person vacant who shall fail to take the oath of office or give the bond required in this section within ten (10) days of the first day of January after his election or within ten (10) days after he has been notified of his appointment. In such case, the council or aldermen shall proceed to appoint as in other cases of vacancy. 2 Before addressing your specific question, I must note that this statute, despite what appears to be your contrary assumption, does not require that the council or aldermen do anything. On its face, this statute authorizes, but does not expressly obligate, the council or aldermen to declare vacant any office whose holder fails to take a required oath within the prescribed time period. If the legislature had intended to impose upon the council or aldermen an obligation to declare an office vacant under the described circumstances, it would not have included in the statute the first phrase I have highlighted above. The effect of this phrase, in my opinion, is to invest a municipality, acting through its council or aldermen, with the discretion to declare an office vacant under the recited circumstances, not to 1 As discussed below, your question is apparently concerned only with elective officers. 2 A.C.A. 14-42-106(d) (Supp. 2011) (emphasis added).
Page 3 mandate that the council exercise that discretion in every such instance. 3 Interpreting the statute as imposing an invariable duty to act would render the highlighted statutory phrase redundant and hence superfluous, thus violating the established rule of statutory construction against reading any provision of a law as mere surplusage. 4 Reinforcing this reading of the statute is a common-sense recognition that the legislature would be unlikely to authorize ousting an official from office simply for failure, for any one of countless possible reasons, to take an oath within a prescribed time-frame. To be sure, given the constitutional requirement that an officer take the oath before undertaking the duties of office, the legislature has quite properly set a date for doing so, following which the council might declare the office vacant. Absent any such declaration, however, the noncomplying officer would serve in a de facto capacity, meaning that his actions would carry official weight despite his not yet having complied with the oath requirement. 5 In my opinion, in investing the council with discretion to declare a vacancy in such circumstances, the legislature allowed for the possibility that a derelict officer might cure the deficiency, thereby avoiding the draconian result of invariably removing a duly appointed or elected official simply for failure to meet a procedural requirement. 3 Having offered this opinion, I must add that the quoted statute s final sentence might be read as qualifying the former in the following manner. The statutory phrase [i]n such case might arguably have either of two referents: (1) a council declaration of vacancy; or (2) a failure timely to take the oath. Under the latter reading, it would appear that the council might be obligated to declare and then to fill a vacancy when an elected or appointed official fails timely to take the oath. I do not believe, however, that this reading of the statute is appropriate. In the first sentence of the recited passage, the dependent clause referring to an officer who shall fail to take the oath is subordinate to the main clause, which deals with the council s power to declare a vacancy for such failure. In light of this fact, it is appropriate to read the later phrase [i]n such case as referring to the circumstance described in the preceding sentence s sole independent clause. 4 See Stephens v. Arkansas School for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000); Central & Southern Companies, Inc. v. Weiss, 339 Ark. 76, 3 S.W.3d 294 (1999); and Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999) (all recognizing that statutory language may not be given a construction that renders it mere surplusage); accord Op. Att y Gen. 2012-020 (noting that reading statutory language as merely redundant if an alternative exists offends this principle of statutory construction). 5 See, e.g., Murphy v. Sheppard, 52 Ark. 356, 358, 12 S.W. 707 (1889) ( An assessor who fails to take the general oath of office required by the law is an officer de facto, and his acts are valid when questioned collaterally. ).
Page 4 Having addressed this preliminary concern, I will turn to your specific question. You have asked whether the power to declare an office vacant may be exercised only by a majority vote of a quorum of the council or whether any individual alderman may on his own authority declare the position vacant. In my opinion, the legislature clearly intended to authorize only the former of these alternatives. It would, in the first place, be absurd to suggest that an individual alderman, without the concurrence of any of his colleagues, could simply declare vacant the seat, say, of a fellow alderman. The courts will not interpret a statute in a way that yields an absurd result. 6 Any such interpretation would further be inconsistent with the plural usage aldermen, which would preclude any individual alderman s acting alone to declare a vacancy in office. 7 Any action to remove an alderman for failure to take an oath must consequently be taken by the council as a body. Question 2: Should A.C.A. 14-42-106(d) be interpreted as requiring the oath to be taken in ten days after the first of January, or should it be interpreted as requiring the oath to be taken in either the ten days prior or ten days after the first day of January? In my opinion, the statute recited in your question does not declare a window during which an elected officer must take the oath of office. Rather, it mandates that an elected officer take the oath within ten days after January 1 or face the risk that his or her office be declared vacant. The Arkansas Code provides that [a]ll municipal officials of the cities and towns of the State of Arkansas shall take office January 1 of the year following their election. 8 The Arkansas Constitution further provides as follows: 6 See, e.g., State v. Owens, 370 Ark. 421, 260 S.W.3d 288 (2007). 7 In my opinion, neither logic nor standard rules of construction support reading the term aldermen to mean any of the aldermen individually. As used in this statute, the phrase council or aldermen, while unfortunately redundant, denotes the city council a point you acknowledge in your question by distinguishing between the council or aldermen, on the one hand, and any member of the council or any individual alderman, on the other. In this regard, the Code expressly declares that the council comprises its member aldermen. A.C.A. 14-42-102 (Repl. 1998). 8 A.C.A. 14-42-201(b) (Supp. 2011). In Op. Att y Gen. 2001-207, one of my predecessors pointed to this statute and A.C.A. 14-42-106(d) as together reflecting a general legislative intent that council positions not remain vacant after an election. I concur in this conclusion.
Page 5 [A]ll... officers,... before entering on the duties of their respective offices, shall take and subscribe to the following oath of affirmation: I,, do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of Arkansas, and that I will faithfully discharge the duties of the office of, upon which I am now about to enter. 9 Subsection (a) of the statute recited in your question further provides: All officers elected or appointed in any municipal corporation shall take the oath or affirmation prescribed for officers by the Arkansas Constitution. As previously noted, subsection (d) of this statute provides that if an elected or appointed person in any municipal corporation fails to take the oath within ten (10) days of the first day of January after his election or within ten (10) days after he has been notified of his appointment, his or her office may be declared vacant. Given that your question focuses on the January 1 date rather than the date of an appointment, I gather that you are concerned only with the timetable for an elected officer to take the oath. The provisions just recited mandate only that an elected officer take office on January 1 and that he take the oath before entering on the duties of his office. Although an individual taking the oath attests that he or is now about to undertake the duties of office, I do not consider this or any other provision of law as precluding an officer from taking the oath at any point following the election and prior to beginning service. The point of the statute is not to define a window during which an elective officer must take the oath. The statute declares only that if the officer has not taken the oath within ten days of January 1, the office might be declared vacant. Under these circumstances, the phrase within ten (10) days of the first day of January after his election clearly refers to the period following January 1. 9 Ark. Const. art. 19, 20 (emphases added).
Page 6 Assistant Attorney General Jack Druff prepared the foregoing opinion, which I hereby approve. Sincerely, DUSTIN McDANIEL Attorney General DM/JHD:cyh