The Honorable Bill Walters State Senator P.O. Box 280 Greenwood, Arkansas 72936-0280

Dear Senator Walters:

This is in response to your request for an opinion on the legality of the Hartford City Council hiring the elected City Recorder to perform what is described as the "water clerk" duties. You note that the elected City Recorder receives compensation for that elected position, and that now the City Council has agreed to give her the "water clerk" job. That job is part-time and pays seven dollars an hour. The question presented is whether it is legal for her to have both of these positions.

I have previously, including very recently, addressed similar questions. In Op. Att'y Gen. 95-187 (copy enclosed), I opined that I could find no law prohibiting the holding of a "water bill teller" position by the elected clerk-treasurer. More recently, in the latter part of Op. Att'y Gen. 98-068 (copy enclosed), I opined that the question may depend upon the particular facts, including the extent of the clerk-treasurer's supervisory power over the water bill position. Both opinions are enclosed for your review and should satisfactorily answer your question.

One change in the law since the issuance of those opinions should be mentioned. There was some discussion in Opinions 95-187 and 98-068 as to whether the common law incompatibility of offices doctrine would prohibit the service in question where both of the positions were not "offices" as that term has been judicially construed. On June 11, 1998, the Arkansas Supreme Court decided a case, Thompson v. Roberts (No. 97-1150), which applied the common law doctrine of incompatibility to the positions of mayor and part-time bookkeeper for the city. The latter position obviously does not meet the judicial criteria for an "office." After this decision, I must conclude that the common law doctrine is applicable to the facts you describe, and the question of whether the doctrine has been violated will depend upon the potential conflict of interest in the holding of the two positions. Any inherent exercise on the part of the City Recorder of supervisory power over the "water clerk" position will lead to such conflict.

The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elana C. Wills.

Sincerely,

WINSTON BRYANT Attorney General

WB:ECW/cyh