Thursday, July 31, 2014

Q&A: Senator moves to state job. But is it an 'office'?

Posted By on Thu, Jul 31, 2014 at 6:29 AM

click to enlarge ON THE TEAM: The UA's Walton-financed education unit used this picture to tout Johnny Key's legislative work on school 'choice' legislation they favored. Now he's on their side of the table.
  • ON THE TEAM: The UA's Walton-financed education unit used this picture to tout Johnny Key's legislative work on school 'choice' legislation they favored. Now he's on their side of the table.
I reported yesterday that Sen. Johnny Key, a Mountain Home Republican, had resigned from the state Senate effective today to go to work Friday as a University of Arkansas System lobbyist at $130,000 a year. He'd earlier said he'd serve out his term this year, but in a resignation letter said he and his family had decided now was a good time to make a move.

State senators make $15,362 a year, or $1,280 a month. That would have been worth $6,400 for the last five months of the year. The UA job pays $10,833 a month (plus a nice pension benefit), or $54,132 for five months. The job switch is thus worth a good $48,000 for the rest of this year. The family will be appreciative.

No special sessions are planned that Key will miss. So, fine in terms of not fulfilling the implied contract with voters who elected him. But what about this? A reader inquires about Arkansas Constitution, Article 5, Section 10:

No Senator or Representative shall, during the term for which he shall have been elected, be appointed or elected to any civil office under this State. 

A hurried search turns up an attorney general's opinion that touches on the question. Among others, it cited guidance from the Arkansas Supreme Court on appointment to an "office" (prohibited) and just becoming an "employee" (not prohibited).

… the Arkansas Supreme Court has taken the position that an "office" is indicated by the following characteristics:

(1) The holder of position exercises some part of the State's
sovereign power;

(2) The tenure, compensation, and duties are usually fixed by
law;

(3) The holder of the position takes an oath of office;

(4) The holder of the position receives a formal commission;

(5) The holder of the position gives a bond.

Also from the opinion (relating to a public defender job):

As was stated in Bean v. Humphrey, 223 Ark. 118, 264 S.W.2d 607 (1954), in distinguishing between an officer and an employee:

When a question arises whether a particular position in the public service is an office or an employment merely, recourse must be had to the distinguishing criteria or elements of public office. . . . Briefly stated, a position is a public office when it is created by law, with duties cast on the incumbent which involve some portion of the sovereign power and in the performance of which the public is concerned, and which also are continuing in their nature and not occasional or intermittent; while a public employment, on the other hand, is a position in the public service which lacks sufficient of the foregoing elements or characteristics to make it an office.


Lobbyists write and effect passage of many laws, but that's a practical, not legal, fact about exercise of sovereign power.

Johnny Key is cashing in. The University of Arkansas is hiring a proven insider and member of the legislative majority who's done good deeds, worth money, for higher education. He's also done yeoman work for the Walton billionaires on their school education agenda, which they also promote through subsidizing the UA campus in Fayetteville. That's the story. Money buys influence. Good deeds are rewarded by those with money. That it's permissible under the Arkansas Constitution, perhaps thank to technical readings by the Supreme Court, doesn't cast the narrative in a more favorable light.

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