The Honorable David R. Malone State Senator — 6th District State of Arkansas P. O. Box 1048 Fayetteville, Arkansas 72701
Dear Senator Malone:
You have requested an opinion regarding the following issues:
1. Whether Act 276 of 1987 repeals Act 262 of 1987, since Act 276 was signed last.
2. Whether Act 657 of 1987, specifically Section 3, is in effect after July 19, 1987, because it contains an emergency clause.
3. Whether, under the Arkansas Civil Service statute, a fire or police chief can promote any candidate in the top three positions of an eligibility list after July 19, 1987.
Paragraph 6 of Section 3 of Act 28 of 1933, Arkansas Statutes Annotated 19-1603 (Repl. 1980) reads as follows:
6th. For certification to the Department Head of the (3) three standing highest on the eligibility list for appointment for that rank of service; and, for said Department Head to select for appointment one (1) of the three (3) certified to him and notify the Commission thereof; and for the promotion or advancement of the one standing highest on the eligibility list for that rank of service.
Act 262 of 1987 states:
SECTION 1. Paragraph 6 of Section 3 of Act 28 of 1933, as amended, the same being Arkansas Statute 19-1603(6th), is hereby amended to read as follows:
"6th. For certification to the Department Head of the (3) three standing highest on the eligibility list for appointment for that rank of service; and, for said Department Head to select for appointment or promotion one (1) of the three (3) certified to him and notify the Commission thereof."
SECTION 2. All laws and parts of laws in conflict with this Act are hereby repealed.
SECTION 3. It is hereby found and determined by the General Assembly that some of the civil service commissions affected by this Act will test police and firefighter candidates in April; that this Act should be in effect prior to the testing; that unless this emergency clause is enacted this Act will not go into effect prior to April. Therefore an emergency is hereby declared to exist and this Act being immediately necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.
Act 276 of 1987 provides in pertinent part:
SECTION 1. Section 3 of Act 28 of 1933, as amended, the same being Arkansas Statutes 19-1603, is hereby amended to read as follows:
"Section 3. The Board of Civil Service Commissioners herein provided shall prescribe, amend and enforce rules and regulations governing the fire and police departments of their respective cities, and said rules and regulations shall have the same force and effect of law. They shall keep a record of its examinations and shall investigate the enforcement and effect of this act and the rules as provided for herein.
These rules shall provide: . . .
6th. For certification to the Department Head of the (3) three standing highest on the eligibility list for appointment for that rank of service; and for said Department Head to select for appointment one (1) of the three (3) certified to him and notify the Commission thereof; and for the promotion or advancement of the one standing highest on the eligibility list for that rank of service. . . .
9th. For establishing eligibility lists for promotion based on open competitive examinations. The exams may include a rating of applicants based on results of written, oral, or practical examinations, length of service, efficiency ratings, and educational or vocational qualifications. Lists shall be created for each rank of service and promotions made therefrom as provided herein. Advancement in rank or increase in salary beyond the limits fixed for the grade by the rules of said commission shall constitute a promotion" (Emphasis added)
Act 657 of 1987 reads as follows:
SECTION 1. Every civil service commission created under Act 652 of 1977, as amended, is hereby abolished.
SECTION 2. Act 952 of 1977 as amended (Ark. Stat. 12-1120 thru 1137) is hereby repealed.
SECTION 3. Paragraph 6 of Section 3 of Act 28 of 1933, as amended by Act 262 and Act 276 of 1987, is hereby amended to read as follows:
"6th. For certification to the Department Head of the three (3) standing highest on the eligibility list for appointment for that rank of service; and, for said Department Head to select for appointment or promotion one (1) of the three (3) certified to him and notify the Commission thereof."
SECTION 4. EMERGENCY. It is hereby found and determined by the General Assembly that Act 952 of 1977, as amended, is unnecessary and that the civil service commissions created under that law are unnecessary; that the Act should be immediately repealed and the commissions immediately abolished, in order to provide for the efficient operation of the offices subject to the same. Therefore, an emergency is hereby declared to exist and this Act, being immediately necessary for the preservation of the public peace, health and safety, shall be in full force and effect from and after its passage and approval.
Paragraph 6 of Section 3 of Act 28 of 1933 essentially reads the same in Act 262 and Act 657, except for the transposition of the written and numerical "three" on the first line. Both acts specifically set out to amend the 6th paragraph. Act 276 does not repeal Act 262 for the following reason. Act 276 repeats the same language found in Arkansas Statutes Annotated 19-1603, except that it amends the 9th paragraph. There is no conflict, therefore, between Act 262, the purpose of which is to amend the 6th paragraph, and Act 276, which amends the 9th paragraph.
And, as discussed, except for the minor technical change, Section 3 of Act 657, approved by the Governor on April 6, 1987, is identical to Section 1 of Act 262, approved by Governor Clinton on March 17, 1987. Thus the answer to your first question is that Section 3 of Act 657 of 1987 controls regarding the precise reading of the 6th paragraph of Section 3 of Act 28 of 1933, but the directive you seek regarding the selection for appointment or promotion of one of the three candidates standing highest on the eligibility list is derived from both Acts 262 and 657 of 1987.
Act 657 amends Section 1 of Act 262, but leaves intact Section 2 and Section 3, the latter being an emergency clause, which provides that Act 262, which amends paragraph 6 of Section 3 of Act 28 of 1933, went into effect immediately. The emergency clause found in Act 657 does not address this issue, but instead Act 657 repeals Act 952 of 1977, and declares an emergency pertaining to Act 952.
Hence, in response to your second inquiry, paragraph 6 of Section 3 of Act 28 of 1933, as amended by Acts 262 and 657, became effective immediately, because the emergency clause found in Act 262 so provided. This being true, and there being no mention in the amendment of choosing the one standing highest on the eligibility list for promotion or advancement, the answer to your third question is that the fire or police chief has the discretion to promote any candidate in the top three positions of the eligibility list from the time the act went into effect, which, in this case, was from and after its passage and approval.
This official opinion, which I hereby approve, was prepared by Assistant Attorney General, Lee Taylor Franke.