Opinion No. 2016-132

March 7, 2017

The Honorable Jake Files
State Senator
300 Free Ferry Landing
Fort Smith, AR 72903

Dear Senator Files:

This is in response to your request for an opinion on the following questions concerning school district millage elections:

May a school district employ a ballot that separates, and therefore permits separate votes upon, proposed millages for maintenance and operation on the one hand, and new construction, dedicated maintenance and operation, or debt service, on the other?

May a school district employ a ballot that separates, and therefore permits separate votes upon, proposed millages for new construction of one facility on the one hand, and new construction of another facility on the other?

As background for these questions, you note that a 1995 Arkansas Attorney General Opinion stated that �although considerable doubt remains and there can be no assurance that a court faced with the question would reach the same conclusion,� a school district could employ a ballot that �separates, and therefore permits separate votes upon, proposed millages for maintenance and operation on the one hand, and new construction on the other.�[1] You further note that the laws discussed in Opinion 95-225 have since been amended.

RESPONSE

It is my opinion that the answer to each of your questions is �no,� based on Article 14, Section 3, of the Arkansas Constitution. In my opinion, this constitutional provision does not allow for a ballot that separates, and therefore permits separate votes upon, the component parts of a proposed school millage.

DISCUSSION

Question 1:        May a school district employ a ballot that separates, and therefore permits separate votes upon, proposed millages for maintenance and operation on the one hand, and new construction, dedicated maintenance and operation, or debt service, on the other?

Question 2:        May a school district employ a ballot that separates, and therefore permits separate votes upon, proposed millages for new construction of one facility on the one hand, and new construction of another facility on the other?

I will address your questions together because, in my opinion, each turns on the proper interpretation of Arkansas Constitution, Article 14, Section 3, which states, in relevant part:

In addition to the uniform rate of tax �, school districts are authorized to levy, by a vote of the qualified electors respectively thereof, an annual ad valorem property tax on the assessed value of taxable real, personal, and utility property for the maintenance and operation of schools and the retirement of indebtedness. The Board of Directors of each school district shall prepare, approve, and make public not less than sixty (60) days in advance of the annual school election a proposed budget of expenditures deemed necessary to provide for the foregoing expenses, together with a rate of tax levy sufficient to provide the funds therefor, including the rate under any continuing levy for the retirement of indebtedness. The Board of Directors shall submit the tax at the annual school election or at such other time as may be approved by law. If a majority of the qualified voters in the school district voting in the school election approve the rate of tax proposed by the Board of Directors, then the tax at the rate approved shall be collected as provided by law�.[2]

Constitutional and statutory provisions are interpreted in the same manner.[3] The intent of the people is ordinarily determined by reference to the plain meaning of the words used.[4] When the language of a constitutional provision is plain and unambiguous, each word must be given its obvious and common meaning.[5] Neither rules of construction nor rules of interpretation may be used to defeat the clear and certain meaning of a constitutional provision.[6]

Applying these principles, I note that the above constitutional provision discusses �a rate� of tax and �the tax� in the singular form. It does not refer to multiple individual, separate taxes or rates of tax.[7] The words �the tax� and �a rate� of tax in the singular support the conclusion that the above-quoted language of Article 14, Section 3 contemplates that a school board may only present a single rate of tax on which the electors may vote in a school election.[8] I believe this conclusion follows from the plain language of the Constitution.

It is therefore my opinion that the answer to each of the above questions is �no.� A school district, in my opinion, may not employ a ballot that permits separate votes upon, for example, maintenance and operation on the one hand, and new construction, dedicated maintenance and operation, or debt service on the other.

Ark. Code Ann. � 6-14-114 and Attorney General Opinion 95-225

Your request for my opinion indicates a belief that Ark. Code Ann. � 6-14-114 governs whether a school district may employ separate ballots for distinct school millage issues. This belief appears to stem from a 1995 opinion written by my predecessor.[9]

The referenced 1995 opinion addressed a question nearly identical to your own: �[W]hether or not a school district may employ a ballot that separates, and therefore permits separate votes upon, proposed millages for maintenance and operation on the one hand, and new construction on the other.�[10] My predecessor relied considerably on section 6-14-114 which, in 1995, required election officials to count the results and make returns to the county clerk at the close of each school election showing �the number of votes cast for each millage�:

When the polls of each election are closed, the judges shall immediately proceed to count the votes, ascertain the results, and makes returns thereof to the county clerk showing:

* * *

In case of a division of the millage to be levied as school tax, the number of mills and the number of votes cast for each millage for:

The current operation of the schools;
The erection and equipment of school buildings; [and]
The retirement of existing indebtedness�.[11]

The 1995 opinion concluded that the above statute �clearly contemplate[d] that the people may vote separately on millages for different purposes.�[12] My predecessor cautioned, however, that there was no absolute assurance that separate ballots, and therefore separate votes, were permitted.[13] The 1995 opinion bolstered its cautionary conclusion by referencing Ark. Const. art. 14, � 3, which the opinion noted �consistently refers in the singular to the rate of tax proposed to be levied and approved in the election.�[14]

Two years following this 1995 opinion, section 6-14-114 was amended. The language requiring reporting the �number of votes cast for each millage� was deleted. Section 6-14-114 now requires election officials to count the results and make returns to the county clerk at the close of each election showing �the number of mills for� the different purposes:

When the polls of each election are closed, the judges shall immediately proceed to count the votes, ascertain the results, and makes returns thereof to the county clerk showing:

* * *

The additional mills for maintenance and operation;
The additional mills for maintenance and operation that have been designated dedicated maintenance and operation mills;
The debt service millage; and
The total millage rate levied for all purposes in the school district in excess of the uniform rate of tax �.[15]

Although it is not entirely clear from your correspondence, I gather you may be wondering whether providing for separate votes on the components of a proposed school millage is no longer permissible as a result of this change in statutory language. In my opinion, the statutory change is not determinative. Rather, it is my opinion, as explained above, that Ark. Const. art. 14, � 3 does not allow separate votes on the individual parts of a proposed school millage. [16]

Sincerely,

Leslie Rutledge
Attorney General

[1]Op. Att�y Gen. 95-225.
[2]Ark. Const. art. 14, �3(c)(1) (Repl. 2011) (emphasis added).
[3]Ragland v. Alpha Aviation, Inc., 285 Ark. 182, 686 S.W.2d 391 (1985).
[4]Hercules, Inc. v. Pledger, 319 Ark. 702, 894 S.W.2d 576 (1995).
[5]Gatzke v. Weiss, 375 Ark. 207, 210, 289 S.W.3d 455 (2008).
[6]Bayer CropScience LP v. Schafer, 2011 Ark. 518, 385 S.W.3d 822 (2011).
[7]Ark. Const. art. 14, � 3(c)(1).
[8]It should be emphasized, however, that this does not mean the ballot cannot detail the components of the rate of tax. Indeed, Ark. Code Ann. � 6-14-114(4) (Repl. 2013) plainly contemplates that �[t]he number of mills for� each different purpose must be included in the results reported to the county clerk following the close of each school election.
[9]Op. Att�y Gen. 95-225.
[10]Id.
[11]Ark. Code Ann. � 6-14-114 (4) (Repl. 1993) (emphasis added).
[12]Op. 95-225 at 2. To reinforce the notion that separate ballots were conceivably permissible, my predecessor referred to Johnson v. Gates, 242 Ark. 631, 415 S.W.2d 329 (1967), in which the Arkansas Supreme Court considered whether a school election ballot that combined millages for more than one purpose was permissible. Id. at 2. The Court in Johnson was presented with a ballot in which only one component of the total millage was proposed to be increased. Id. at 632, 330. The Johnson Court, after determining that a single ballot that proposed a change to only one component of the total millage was permissible, noted that, had the ballot raised two or more questions to the voters, the argument for separate ballots would have been strengthened. Id. at 635, 332. Importantly, however, the Johnson Court was not squarely faced with determining the legality of separate ballots so as to allow separate votes on millages for different purposes. This case therefore does not decide the questions you have raised.
[13]Op. 95-225 (noting that separate ballots �would, more likely than not, be found to be permissible.�).
[14]Id.
[15]Ark. Code Ann. �6-14-114 (Repl. 2013). Compare Acts 1935, No. 30, � 11 (This language, existing at the time of the 1995 opinion, required election returns to show �the number of votes cast for each millage�.�), with Acts 1997, No. 1300, � 20 (requiring only the �number of mills� for each category of mill be shown upon the close of each school election).
[16]My predecessor was plainly cautionary in concluding that separate ballots were conceivably permissible in light of section 6-14-114�s language at that time. In my opinion, that caution was most definitely warranted. Indeed, the statute�s amendment a mere two years later to remove reference to �the number of votes cast for each millage� may reflect the legislature�s acknowledgement of the tenuous basis for separate balloting.