The Honorable Jack McCoy State Representative 712 McNeil Street Malvern, AR 72104
Dear Representative McCoy:
This is in response to your request for an opinion on the following question:
Is it lawful for a physician who is a member of the State Board of Health to be employed by the Department of Health.
It is my opinion that the answer to this question is "yes." There appears to be no statutory or constitutional prohibition against one person's simultaneous service in these two positions; nor, in my opinion, does the mere holding of both positions create a conflict of interest proscribed under the common law "incompatibility of offices" doctrine. See generally Byrd v.State, 240 Ark. 743, 402 S.W.2d 121 (1966). It is significant to note in this regard that all personnel of the Department of Health are employed by and serve at the pleasure of the Director of the Department of Health. A.C.A. § 25-9-101(c). Each division of the Department is under the direction, control, and supervision of the Director. A.C.A. § 25-9-101(d). It thus appears that the State Board of Health does not exercise supervisory power over Department employees. See generallyTappan v. Helena Federal Savings Loan Assoc., 193 Ark. 1023,104 S.W.2d 458 (1937).
Reference should be made, however, to Article 16, Section 4 of the Arkansas Constitution which states that ". . . no greater salary or fee than that fixed by law shall be paid to any officer, employee, or other person. . . ." See generallyGipson v. Ingram, 215 Ark. 812, 223 S.W.2d 595 (1949). If the employee, in his or her capacity as a member of the State Board of Health, receives the "per diem expense allowance" authorized under A.C.A. § 20-7-104, a determination should be made that this payment does not result in the receipt of an amount exceeding his or her authorized salary. Otherwise, the per diem, if paid with no correlation to actual expense incurred, would probably be subject to challenge under Art. 16, § 4.
The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elisabeth A. Walker.
Sincerely,
WINSTON BRYANT Attorney General
WB:arb