The Honorable David S. Clinger Prosecuting Attorney 10 Northeast "A" Street Bentonville, AR 72712
Dear Mr. Clinger:
This is in response to your request for an opinion on the following question:
Are Prosecuting Attorneys and Deputy Prosecuting Attorneys considered county employees and thus covered by the county's liability insurance policy covering county employees, or are they considered state employees and thus not covered by the county's policy?
You state that you have been informed by counsel for the Association of Arkansas Counties that your office may not have liability protection under Benton County's Risk Management Fund due to the fact that prosecutors and deputy prosecutors might be considered state, rather than county employees. I believe that, as a general matter, it is correct to identify these individuals as officers of the state. There is case law authority to this effect in several specific areas, including constitutional salary requirements and limitations, and dual office holding prohibitions. See Griffin v. Rhoton, 85 Ark. 89, 107 S.W. 380 (1907); Smith v. Pope, 192 Ark. 342, 91 S.W.2d 281 (1936);Martindale v. Honey, 259 Ark. 416, 533 S.W.2d 198 (1976). I cannot conclusively state, however, that these decisions will govern in this instance. My review has not disclosed any case law or statutory authority specifically addressing the status of these officers in the context of a liability insurance policy. This question apparently has not arisen in a dispute context that occasioned review by an appellate court, nor has it been addressed by statute.
I believe, therefore, that it cannot be stated, as a matter of law, that a county policy either would or would not cover these individuals. Rather, this issue will, in all likelihood, be governed by the policy's coverage provisions. I cannot, in the context of an Attorney General opinion, construe the policy. Clarification of the relevant provisions may offer the only satisfactory means of resolving the issue. If the county is questioning whether these officers are covered, and you are unable to obtain clarification through agreement, coverage under a state policy may be advisable due to the uncertainty in this area.
The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elisabeth A. Walker.
Sincerely,
WINSTON BRYANT Attorney General
WB:cyh