dissenting. I believe the majority is further expanding a strict compliance interpretation of the Law Enforcement Standards Act [Ark. Code Ann. §§ 12-9-101 — 404 (1987)] when there are sound and persuasive reasons for taking a less rigid approach. I respectfully disagree.
In Grable v. State, 298 Ark. 489, 769 S.W.2d 9 (1989), the fingerprint search had not been completed at the time of the arrest and in both Grable and Mitchell v. State, 298 Ark. 536, 769 S.W.2d 18 (1989), the psychological examinations had not even been performed. In contrast, here the fingerprint search had been completed without a blemish on Officer Branch’s record and the psychological examination was entirely favorable and the variance in the form of the psychological report was not in the least material. It is obvious that Officer Branch was recommended for employment.
The majority concludes that Branch was hired “in the dark,” but the record tells us nothing as to whether the City of Kensett hired Branch without knowing whether his fingerprint search was favorable. The state police fingerprint report was completed on July 9,1987, and the FBI report on July 27, some six weeks before the arrest, but both were incorrectly filed with the Office of the White County Sheriff at Searcy. Whether Kensett had knowledge one way or the other is not in the record. It is clear the appellant did not argue to the trial court that Branch was hired without knowledge that his prior record was clear, the only argument was that the fingerprint check was not in his file on September 10, 1987, the date of the arrest. Near the close of a hearing the trial court specifically asked counsel if it was the defendant’s position that the arresting officer was not qualified because the fingerprint report was not in his personnel file in Kensett and the answer was “yes.”1
As to the psychological evaluation, the report consisted of a lengthy narrative (see appendix) concluding with the following:
Test Results'.
Results of psychological testing reveal him to be high in poise, self-assurance, maturity, responsibility, and achievement potential. He particularly may be expected to display the following behaviors from time to time: persistent, planful, forceful, enterprising, enthusiastic, persuasive, alert, thorough, industrious, honest, practical, tolerant, helpful, tactful, reliable, and efficient.
Summary and Conclusions:
In summary, Mr. Branch was seen for a psychological evaluation to fulfill requirements of minimum standards and to determine suitability to function as a law enforcement officer. He displays no atypical behavior upon interview and test results indicate that he is high in measures of poise, maturity, responsibility, and achievement potential. He appears to have the capacity to function well as a law enforcement officer. It would be to his advantage to further his education as he is able. [Emphasis supplied.]
That the examiner deemed Officer Branch psychologically well suited for employment cannot be seriously doubted and it is of little consequence that the report was not on form 2-B and omitted a specific recommendation.
In Mitchell and Grable we examined the language of Section 12-9-108(a), which provides that persons who do not meet the standards and qualifications shall not take any official action as a police officer, and “any action taken shall be held as invalid.” We took that wording to mean that strict compliance was required, that substantial compliance would not be consistent with the obvious intent of the General Assembly to improve the quality of law enforcement. Grable v. State, 298 Ark. 489, 769 S.W.2d 9 (1989) at 493.
However, the Grable and Mitchell decisions were soon followed by Act 44, amending “ab initio” Ark. Code Ann. § 12-9-108(a) to read:
Actions taken by law enforcement officers who do not meet all the standards and qualifications set forth in this subchapter or made by the Arkansas Commission on Law Enforcement Standards Training shall not be held invalid merely because of the failure to meet the standards and qualifications.
The majority declines to consider the effect of Act 44 because it was not raised in the trial court. But that disregards the settled rule that we affirm the trial court if it reached the right result irrespective of the reason.
The fundamental rule in construing statutes is to ascertain and give effect to the intention of the legislature. State, ex rel. v. K.C. & M. Ry. & B. Co., 117 Ark. 606, 174 S.W. 248 (1914); Brown v. Nelms, 86 Ark. 368, 112 S.W. 373 (1908). I do not suggest that Act 44 is conclusive as to our earlier interpretation of § 12-9-108(a), but when a former statute is amended or a doubtful meaning clarified by subsequent legislation, the later expression may be considered in determining the legislative intent. 2AN. Singer, Sutherland Statutory Construction § 49.11 (1984). The legislative intent is to be determined by a consideration of all legislation — prior, contemporaneous and subsequent, bearing on the meaning of the subject legislation. Phillips Petroleum v. Heath, 254 Ark. 847, 497 S.W.2d 30 (1973), and while an earlier interpretation of the legislative intent cannot be overriden by subsequent legislation, such expressions are entitled to “significant weight,” particularly when a precise intent of the enacting body is obscure. Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572 (1980).
From that standpoint, I believe the appropriate interpretation of the Law Enforcement Standards Act requires substantial, rather than strict, compliance. That being so, the trial court did not err in holding that the misplacement of a completed fingerprint search evidencing no criminal record, and a clearly favorable psychological evaluation, did not defeat substantial compliance with the act.
Even if this court chooses to adhere to a strict compliance approach, we have recognized that a rigid adherence is not required. Strict compliance is tantamount to a holding that the provisions of a statute are mandatory. See N. Singer, 2A Sutherland Statutory Construction § 57.12 (4th ed. 1984). If, on the other hand, a provision is said to be directory, some deviation is allowed without thwarting the result dictated by the statute. Id. Whether less than absolute compliance with particular provisions is permitted is a matter of statutory construction and the result of interpretation. Id.
According to Sutherland, whether a provision is mandatory or directory is determined as follows:
[The courts] must consider the importance of the literal observance of the provision in question to the object of the litigation. If the provision is essential, it is mandatory. A departure from it is fatal to any proceeding to execute the statute or to obtain the benefit of it. . .
. . .This determination involves a decision of whether the violation is serious enough to invalidate acts or proceedings pursuant to the statute.
In cases where no apparent actual or potential injury results to anyone from the failure to adhere to the provisions of a statute, a directory construction usually prevails in the absence of facts indicating a mandatory construction was intended. Statutory requirements that are the essence of the thing required by statute are mandatory, while those things which are not of the essence are directory. Sutherland, supra, § 57.01; 57.03.
Thus, those things that are of the essence of the thing to be done are mandatory, while those things not of the essence of the thing to be done are directory only. Taggart & Taggart Seed Co. v. City of Augusta, 278 Ark. 570, 647 S.W.2d 458 (1983); Edwards v. Hall, 30 Ark. 31, 37 (1875).
We faced an analogous situation in applying Act 568 of 1969, the new Jury Wheel Act. In Horne v. State, 253 Ark. 1096, 490 S.W.2d 806 (1973), we held the act was mandatory. But as varying issues arose under the act, we recognized that some provisions were more important than others and not all provisions were mandatory. In Huckaby v. State, 262 Ark. 413, 557 S.W.2d 875 (1977), and Harrod v. State, 286 Ark. 277, 691 S.W.2d 172 (1985), we held some provisions were merely directory, and substantial compliance was sufficient.
It seems obvious in this case that the requirement that the officer’s fingerprint checks be maintained in his personnel file is intended to facilitate the implementation and supervision of the Standards Act, and does not affect in any material way the legislative objective of law enforcement officers possessing the minimum prescribed qualifications, nor has the appellant suggested how it could be otherwise. Consequently, a failure to strictly follow the dictates of a supplementary specification dealing with the filing of the fingerprint report, or the form by which the psychological evaluation is submitted, should not come within the purview of § 12-9-108(a), as constituting a failure of the officer to meet the standards and qualifications set forth by the Commission. I would affirm the judgment.
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Record,'pp. 92-93.