Ban on legislators accepting newly created state jobs. Does it apply to Kelley Linck’s job?

linckRepresentative Kelley Linck (R) resigned from the House of Representatives to accept a job with the Department of Human Services. Linck became DHS’s “first chief of legislative and governmental affairs.” The newly created position is part of new DHS director, Cindy Gillespie’s plan for revising the agency.  Gillespie became director on March 1.

Does former Representative Kelley Link’s acceptance of the newly created position violate state law?

If Kelley Linck’s job is actually a “newly created” position as reported, how can he accept it without violating the ban on taking newly created jobs?

Under Arkansas Code § 21-1-402(e) A former legislator is banned from taking a state job if it:

(1) Was newly created by legislative action within the twenty-four (24) months prior to the member’s leaving office; or

(2) Had a maximum salary level increase of more than fifteen percent (15%) authorized by legislative action within the twenty-four (24) months prior to the member’s leaving office.

If it is a newly created position and Linck’s acceptance of the positon does not violate the law, then perhaps DHS created the position without needing “legislative action” on the position. The ban applies to positions “newly created by legislative action.” This possibility would be an even bigger issue. Can state agencies create positions without legislative action, either through an appropriation act or legislative committee approval of use of a pool position to create the new position?

If state agencies can create positions without needing legislative approval, then the two-year ban is an empty prohibition.

If so, this is not the first time tortured words have been inserted into legislation to provide a loophole.

On the other hand, if the position of chief of legislative and governmental affairs is not actually  newly created and has been in the agency’s appropriation bill for two years, then DHS certainly bungled the announcement of Linck’s hiring.  We did not find the position listed in previous appropriation bills for DHS.