The opinion
The Honorable Mike Kenney State Representative 1005 Raintree Lane Siloam Springs, AR 72761-8268
Dear Representative Kenney:
I am writing in response to your request for my expedited opinion on the following questions:
1. Is a board member for a waste water district formed under ACA 14-250-101 required to reside within the boundaries defined by the court order which formed the district?
2. If the answer to the question above is "no," can non-resident members sitting on the board vote to incur debt for the district, which is guaranteed by the member cities of the district?
RESPONSE
I regret to say that I am unable to answer these questions, which raise issues that are currently the subject of litigation in a case styled City of Tontitown v. Osage Basin Wastewater District et al., Washington County Circuit Court Case No. 05-597-2. Among the issues before the court is the proper composition of the Osage Basin Wastewater District Board of Directors, which your factual recitation reflects lies at the heart of your questions.
This office has long observed a policy of declining to address issues that are the subject of pending litigation — a policy based primarily upon the separation of powers doctrine. See, e.g., Ops. Att'y Gen. Nos. 2003-182 ; 2003-032; 2002-302; 99-389; 97-329; 97-105. Any opinion issued from my office would constitute executive comment on matters that are properly before a judicial body. Accordingly, I must respectfully decline to address your questions at this time.
Assistant Attorney General Jack Druff prepared the foregoing opinion, which I hereby approve.
Sincerely,
MIKE BEEBE Attorney General
MB/JHD:cyh