Honorable Lloyd C. McCuiston, Jr. State Representative District 48 P. O. Box 1489 West Memphis, Arkansas 72301
Dear Representative McCuiston:
You have requested the opinion of this Office regarding the meaning of certain language in Ark. Stat. Ann. 17-3610. Your first question states:
(Ark. Stat. Ann. 17-3610(b)) states `upon determination by a quorum court that a condition of vacancy exists in all other causes not governed by failure to be commissioned or finding of judicial proceeding.' Does `upon determination' mean just general knowledge of the quorum court? If no, what constitutes determination?
The words "upon determination" means more than the quorum court having general knowledge of the vacancy. Pursuant to the statute, a "determination' means that the quorum court states in a resolution that a vacancy exists.
Your second question asks:
The law further states `such determination by a quorum court shall be conducted through the process of resolution as prescribed by law; provided, however, that such resolution shall have been published prior to the meeting date in which the resolution is to be considered by the court.' Am I correct to assume that the intent of this law is for the resolution to have been published as provided for in Ark. Stat. Ann. 17-3103 before the quorum court has an opportunity to act as a body on the resolution?
The language you cite from Ark. Stat. Ann. 17-3610 requiring the publication of the resolution dealing with the vacancy prior to the quorum court's meeting to consider the resolution does require that the resolution be published pursuant to Ark. Stat. Ann. 17-3103. That statute requires that:
Unless otherwise specifically provided, when a county government is required to publish, publication shall be by a one (1) time insertion in a newspaper of general circulation in the county. Where no newspaper of general circulation exists in a county, publication may be by posting in three (3) public places which have been designated by ordinance.
Therefore, the resolution making the determination of vacancy should either be published in a newspaper of general circulation in the county or by posting pursuant to Ark. Stat. Ann. 17-3103.
Your last question asks:
. . . (i)s it correct to assume that the publication and the language in the resolution are part of the vancancy [vacancy] search determination?
As the discussion of your previous two questions above indicates, the resolution required by Ark. Stat. Ann. 17-3610 is a part of the vacancy determination.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Tim Humphries.