Opinion No. 1986-586

Mahlon A. Martin

Attorney General of Arkansas — Opinion
September 21, 1987

STEVE CLARK, Attorney General

Mr. Mahlon A. Martin, Director Department of Finance and Administration P. O. Box 3278 Little Rock, AR 72203

Dear Mr. Martin:

You have requested an opinion as to what your responsibilities are regarding payment of employee moving expenses from monies received by gift, bequest or donation by the Department of Human Services, Division of Disability Development Services. These payments are proposed for (1) newly hired employees, i.e., the Commissioner, administrators and supervisors of DDS and (2) moving expenses for an employee, formerly employed as Commissioner of DDS.

As your opinion request notes, this Office has previously advised the Department of Human Services that bequests, etc. may be expended by DDS for any purpose which “furthers the goal of DDS” and which is not considered part of the “normal operation” of DDS. Ark. Stat. Ann. 59-1113 (Repl. 1971) and 59-1005 (Repl. 1971).

Also, Act 5 of 1975, codified as Ark. Stat. Ann. 13-362 (Repl. 1979) exempts from your agency’s pre-audit procedures bequests, gifts and donations made to a state agency other than for “normal operation(s).”

You further point out that neither the General Accounting Procedures Law nor subsequent amendatory legislation include “moving expenses” in comprehensive lists of items classified as general operation or maintenance expenses.

You have, pursuant to the authority of the General Accounting Procedures Act, promulgated state accounting policies consistent with that statutory authority. In those regulations you prohibit the payment of moving expenses for newly hired employees, presumably because this expense would not be classified as “necessary for the proper and efficient operation of (a) state agency . . .” Ark. Stat. Ann. 13-338(F)(2) (Repl. 1979).

There is no Arkansas case law generally defining “normal operating expenses” for state agencies. Thus, the words must be read given their plain, ordinary meaning. “Normal” indicates within the usual and customary state of affairs.

Certainly, as is reflected in your cited regulations, most state agencies do not pay their employees moving expenses under any circumstances. A few, as you point out in your request, pay such expenses for current employees transferred to another work assignment for the benefit of the agency. But, for newly hired or newly terminating employees, it is not the usual, customary practice for any agency, to our knowledge, to pay moving expenses.

Therefore, it is my opinion that moving expenses for newly hired or terminating employees are not “normal operating expenses.” Thus, bequests, gifts and donations specifically allowed for receipt to DDS (Ark. Stat. Ann. 59-1113 (Repl. 1971)) and for disbursal (Ark. Stat. Ann. 59-1005) may legally be utilized by DDS for moving expenses if that is a purpose “deemed expedient by the (DDS) board.” Section 59-1113 (Repl. 1971).

Also, such cited expenditures are exempt from pre-audit procedures.

The foregoing opinion, which I hereby approve, was prepared by Special Counsel R.B. Friedlander.