LR's attorney says panelist is OK to serve

2011 high court ruling cited in settling residency matter

The Little Rock civil service commissioner who claimed residency at his parents' house in Little Rock is eligible and qualified to serve on the commission, according to Little Rock's attorney.

Brett Morgan, who was appointed in 2013 to sit on the seven-person committee responsible for appeals to disciplinary actions on city police and fire employees, can conduct city business after demonstrating that he is a qualified elector in Little Rock by registering at his parents' home even though he claims a Scott "lake house" as his principal residence by state tax law.

City Attorney Tom Carpenter cited the precedent set in a 2011 state Supreme Court ruling that determined because state law does not define the word "reside," a demonstrated presence is all that is needed to be eligible for certain city offices or appointments.

Morgan's eligibility to finish his six-year term on the commission came into question on July 11, when city officials learned that Morgan's Scott home, where his wife resides, was his principal residence because he had claimed it on his homestead exemption under state law.

The eligibility question prompted Carpenter to offer Wednesday's "expedited" legal opinion on the matter and also prompted city officials to ask Morgan not to attend any more meetings until the matter was settled, a request that led the commission to cancel the appeal hearing set for today for former Little Rock police officer Josh Hastings.

To sit on the commission, someone must be a city "resident" for at least three years and continue to be a "qualified elector" of the city during the length of the appointment, according to state statute.

According to Carpenter's findings of state case law, a qualified elector need only prove residence in a political subdivision. Because there is no explicit definition of what "residence" is, it can mean "living there [or] being 'physically present' there," Carpenter said.

The city listed the address of a former employer of Morgan's as his address, but when he applied for the commission, he gave the Duclair Court address owned by his parents.

Morgan also is registered to vote at that address, which demonstrates he is a "qualified elector" of the city and thereby eligible to sit on the commission, according to Carpenter.

Morgan owns several properties throughout the state, according to Carpenter's findings, and spends "a great deal of time" at his parents' Little Rock address and "essentially occupies the top floor of the residence, and that his clothes are kept at that address."

The question about Morgan's eligibility to serve on the commission, according to Carpenter, mirrors the case of a small-town mayor who rented inside the town but owned a home just outside the city limits.

In December 2010, Steve Jernigan won a runoff election to be mayor of Lepanto and, shortly after, the Poinsett County prosecutor sought to prevent him from taking office because Jernigan only rented in the city while claiming to own a home with his wife outside the city limits.

The prosecutor's effort was blocked by the circuit court, and that court's ruling was upheld by the state Supreme Court in 2011.

Although the court found many of the circumstances to be "subterfuge and farce," according to the ruling, the issue of residency, which can determine if someone is a "qualified elector," is ill-defined, Carpenter wrote.

Both Carpenter, and the high court in its 2011 ruling, noted that if the state assembly wanted to require electors to be "domiciled" somewhere instead of merely having a "presence" there, it would have done so.

"Yet, the General Assembly did not include such a restriction," Carpenter wrote. "The fact [Morgan] takes a homestead exemption on a property in [Scott], that he refers to as the lake house, does not defeat his ability to serve the City's commission."

The Civil Service Commission has yet to reschedule Hastings' appeal.

Hastings was fired and charged with manslaughter in the shooting of a 15-year-old car break-in suspect in 2012. Those charges were dropped after two mistrials, and Hastings seeks to regain his job at the Police Department.

Metro on 07/24/2014

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