The Saline County Library's employees would not be "duly entitled" to certain benefits such as a child care and elder care stipend and student loan reimbursement if these benefits are different from those approved by the Saline County Quorum Court for other county employees, the Arkansas Ethics Commission has concluded.
These additional benefits could be found to have been conferred in contravention of state law, the commission said in an advisory opinion approved 2-1 after a nearly 20-minute discussion Friday.
Commissioners Lori Klein and Ashley Driver Younger voted to approve the opinion, while Commission Chairman Tony Juneau dissented. Commissioners Alice Eastwood and Sybil Jordan Hampton were excused by their colleagues from the meeting.
The commission issued the advisory opinion in response to a request from Saline County civil attorney Clay Ford. Ford could not be reached for comment by telephone on Friday.
Ford asked the commission whether certain employment benefits provided to Saline County Library employees by the Saline County Library Board with the board's approval -- but not approved by the Saline County Quorum Court and not provided to other county employees -- are considered a "gift" and, thus, prohibited under Arkansas Code Annotated 21-8-801, or whether these benefits are considered as "income and benefits from the governmental body to which ... [an employee] is entitled," and thus permitted under that law.
The advisory opinion has been written assuming the benefits in question -- including a child care and elder care stipend, student loan reimbursement, wellness reimbursement, career service recognition and quarterly hour benefits -- exceed $100 in value and do not fit within the exceptions to the definition of a gift under Arkansas Code Annotated 21-8-402 (5), the commission said.
"The facts provided make it clear that these benefits are being provided from the governmental body served by the library employees and that these benefits are given for the performance of the duties and responsibilities of the employee's office or position," the commission said in its opinion.
The commission said the Saline County Library Board was vested with the power to fix, regulate and pay the salaries of library employees under an ordinance approved by the Saline County Quorum Court on Jan. 5, 1978.
But that ordinance did not go as far as to empower the board to provide library employees with additional benefits, the commission said.
"In the absence of such power, it is [the commission's] opinion that the Library Board's decision to provide additional employment benefits to library employees was ultra vires [beyond its power] and, therefore, that library employees are not 'duly entitled' to those benefits within the meaning of Ark. Code Ann. 21-8-801," according to the commission.
To the extent that the Library Board voted to provide these benefits to its employee, the commission said it "is of the opinion that 'good cause' would exist for not imposing a sanction on the library employees in the event a violation of Ark. Code Ann. 21-8-801 (a) (1) was found."
Furthermore, the commission noted that "employee benefits do not appear to be the basic type of illegal gratuities" that Arkansas Code Annotated 21-8-801 (a) (1) was designed to prohibit.
In addition, the commission said that nothing in Arkansas Code Annotated 21-8-801 (a) (1) "would prohibit the Library Board from increasing the salaries of the library employees as an alternative to providing such employees with benefits above and beyond those provided to other county employees."
The Library Board, for example, could raise a library employee's salary by an amount necessary to help pay child care expenses or student loan payments, the commission said.
The commission said its advisory opinion "should not be interpreted to limit in any way traditional compensation and employee benefits received by other county employees and commonly afforded to public servants in Arkansas, such as health insurance benefits, retirement benefit, payroll deduction options or the payment of expenses related to the ability of the employee to carry out their job responsibilities."
The advisory opinion "is intended to provide guidance related to future conduct -- not past events -- and is prospective in its application," and thus the commission "cannot opine regarding the permissibility of a specific past event," according to the commission.
Juneau, who is an in-house attorney at Walmart, said commission attorney Jill Barham Rogers "did a great job of putting this together and drafting" a revised advisory opinion after the commission discussed the initial draft at its meeting last month.
"My concern goes back to public employees throughout the state who may be in this position that when they go sign up, agree to take a job, this is part of their compensation or part of their benefits. ... This opinion would find these public employees are violating the law when they are just getting their normal paycheck for a job," he said.
"I feel as if the statute is trying to preclude the influx of third-party money, third-party gifts," Juneau said. "I didn't feel as though as the statute precludes this kind of stipend or payment from your employer. ... It is hard for me to say that that's a gift to which they are not duly entitled. That's part of their pay, that's part of their contract they made with their employer when they take that job."
He said he would be comfortable with the commission issuing an advisory opinion that the Library Board exceeded its authority in making these payments to its employees.
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