Can a city council in Arkansas pass an ordinance that limits the mayor's authority to make purchases for the city?

Plain-English summary

Mount Ida is a second-class city in Arkansas. A city official there had questions about how to interpret Ark. Code Ann. § 14-58-303, which gives mayors the "exclusive power and responsibility to make purchases" for the city. State Senator Larry Teague asked the AG whether a city council could pass an ordinance limiting that mayoral authority.

AG Leslie Rutledge concluded the answer was "no" with respect to ordinances that would prevent or restrict the mayor's exercise of the exclusive purchasing authority itself. The mayor's power was conditioned on three things, but those were the council's only levers:

1. Appropriation. The council had to appropriate funds before the mayor could spend them (Ark. Code Ann. § 14-55-204).
2. Revision of appropriations. The council could later alter or revise the budget under § 14-58-203(b), provided that did not divert dedicated tax revenues or prejudice creditors.
3. Procedures. The council could prescribe purchasing procedures by ordinance under § 14-58-303(b)(1), with carve-outs in § 14-58-104.

What the council could not do was second-guess or veto specific purchases the mayor decided to make for public purposes within an appropriation. Three prior AG opinions reached the same conclusion: Op. Att'y Gen. 2010-115 (no prior-approval requirement); 2002-093 (§ 14-58-303 "unequivocally locates" purchasing power in the mayor); 93-332 (no prior approval of § 14-58-303(a) purchases).

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The mayor / council split, in plain terms

The Arkansas municipal scheme as the AG read it in 2017 set up a fairly clean division of labor for cities of the first and second class and incorporated towns:

• Council writes the budget. The council passes appropriations specifying how much the city can spend and on what.
• Council prescribes purchasing procedures. The council can require bids, set thresholds, designate purchasing officers, or otherwise dictate the process the mayor must follow.
• Mayor (or designee) makes the purchases. Within an appropriation and following the procedures, the mayor decides what specific contracts to enter and what specific items to buy.
• Council does not approve individual purchases. No Mount Ida-style ordinance could require council pre-approval of mayoral purchases.

What this opinion does NOT decide

The AG did not address whether the council could refuse to appropriate funds in response to the mayor's spending preferences. That power exists under § 14-55-204 / § 14-58-203 and is the council's primary check. The AG's narrow holding was that ordinance-level restrictions on the mayor's purchasing prerogative inside an existing appropriation were void.

Common questions

Did this apply to first-class cities and towns too?
Yes. Section 14-58-303(a) by its terms applies to cities of the first and second classes and incorporated towns. The opinion limited its analysis to second-class cities (Mount Ida's class) but the statutory language is not class-specific.

What if the city has adopted a city manager form of government?
This opinion did not address that scenario, which involves a different governance framework. Cities that have adopted city manager government should check the specific statutes governing that form before applying this opinion's logic.

Can the council require bids on certain purchases?
Yes. Section 14-58-303(b)(1) expressly authorizes the council to "provide, by ordinance, the procedure for making all purchases." Section 14-58-104 carves out specific commodities cities can purchase without bids and authorizes contract renewals/extensions without rebidding.

What if the mayor refuses to make a purchase the council wants?
Within an appropriation, the choice of specific purchases belongs to the mayor. The council's tool is the appropriation itself, plus annual budget cycles. The council cannot order a specific purchase by ordinance.

What if the mayor wants to spend on something not in the budget?
Then the mayor must get the council to amend the appropriation. The council retains the power under § 14-58-203(b) to alter or revise the budget, with two exceptions: tax revenues dedicated to a specific purpose may not be redirected, and creditors' rights may not be prejudiced.

Background and statutory framework

Arkansas cities are creatures of state law and have only those powers expressly granted, necessarily implied, or indispensable to their objects. Cosgrove v. City of West Memphis, 327 Ark. 324 (1997). Cities can enact provisions on municipal affairs that don't conflict with state law. Ark. Code Ann. §§ 14-42-307, 14-43-601, -602, 14-54-101, 14-55-101.

Section 14-58-303(a) is unusual in giving an exclusive power to the mayor:

[Mayors or their duly authorized representatives] have exclusive power and responsibility to make purchases of all supplies, apparatus, equipment, materials, and other things requisite for public purposes in and for the city and to make all necessary contracts for work or labor to be done or material or other necessary things to be furnished for the benefit of the city, or in carrying out any work or undertaking of a public nature in the city.

The AG read "exclusive" literally, citing MacSteel Division of Quanex v. Arkansas Oklahoma Gas Corp., 363 Ark. 22 (2005), for the rule that statutes are construed by ordinary meaning when the language is plain.

Section 14-58-203(b) is the council's revision power:

[A] city council may later "alter or revise the budget[,] and unpledged funds appropriated by the governing body ... may be subsequently ... appropriated for another purpose," as long as any such reappropriation would not divert tax revenues dedicated for a specific purpose to another purpose or would prejudice any of the city's creditors.

Section 14-58-303(b)(1) is the council's procedural power: ordinances setting "the procedure for making all purchases."

Citations

• Ark. Const. art. 12, § 4 (cities derive legislative powers from state law)
• Ark. Code Ann. § 14-42-307 (city powers not contrary to state law)
• Ark. Code Ann. §§ 14-43-601, -602 (legislative power over municipal affairs)
• Ark. Code Ann. § 14-54-101 (powers not inconsistent with state law)
• Ark. Code Ann. § 14-55-101 (ordinances not inconsistent with state law)
• Ark. Code Ann. § 14-55-204 (council appropriation requirement)
• Ark. Code Ann. § 14-58-104 (commodities purchasable without bids; contract renewals)
• Ark. Code Ann. § 14-58-203(b) (council power to alter or revise appropriations)
• Ark. Code Ann. § 14-58-303(a) (mayor's exclusive purchasing power)
• Ark. Code Ann. § 14-58-303(b)(1) (council's procedural-ordinance power)
• Cosgrove v. City of West Memphis, 327 Ark. 324, 938 S.W.2d 827 (1997)
• MacSteel Div. of Quanex v. Arkansas Okla. Gas Corp., 363 Ark. 22, 210 S.W.3d 878 (2005)
• Op. Att'y Gen. 2010-115; 2002-093; 93-332

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2016-114
February 17, 2017

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

The Honorable Larry R. Teague
State Senator
P.O. Box 903
Nashville, AR 71852

Dear Senator Teague:

This is in response to your request for an opinion concerning the City of Mount Ida. Your correspondence states that a city official has questions on the interpretation of Ark. Code Ann. § 14-58-303 (Supp. 2015). In light of this inquiry, you pose the following question:

Does Arkansas Code Annotated § 14-58-303, or any other Code section, allow a city council to pass an ordinance limiting a mayor's ability to make purchases for public purposes in and for the city?

Mount Ida is a city of the second class. Accordingly, I will limit my answer to the law as it relates strictly to cities of the second class.

RESPONSE

In my opinion, the mayor or his designee has the sole authority to make purchases for public purposes on behalf of the city. The answer to your question is therefore "no" as to an ordinance that would prevent or restrict the mayor's exercise of this exclusive authority to make purchases.

This authority is conditioned, of course, that the city council must first appropriate the funds, and that the expenditures must be for a public purpose. Additionally, the city council has the general power to revise an appropriation, which would limit the mayor's spending power with respect to that appropriation, so long as doing so does not divert tax revenues levied for specific purposes or prejudice the rights of creditors. Finally, although not a strict limitation on the mayor's authority to spend, a city council may provide by ordinance procedures for making purchases.

DISCUSSION

Municipal corporations derive their legislative powers from the general laws of the State. Ark. Const. art. 12, § 4. "Cities have no inherent powers and can exercise only (1) those expressly given them by the state through the constitution or by legislative grant, (2) those necessarily implied for the purposes of, or incident to, these express powers and (3) those indispensable (not merely convenient) to their objects and purposes." Cosgrove v. City of West Memphis, 327 Ark. 324, 326, 938 S.W.2d 827, 828 (1997). Cities are empowered to enact provisions concerning municipal affairs, provided that they do not conflict with state law. See, e.g., Ark. Code Ann. §§ 14-43-601, -602 (Repl. 2013) (cities can exercise legislative power over "municipal affairs"); 14-42-307 (Repl. 2013) (cities can exercise all powers conferred by state law that are "not contrary" to state law); 14-54-101 (Repl. 1998) (cities can exercise powers that are "not inconsistent" with the general laws of the state); 14-55-101 (Repl. 1998) (cities can enact ordinances that are "not inconsistent with the laws of the state").

With respect to fiscal affairs, Ark. Code Ann. § 14-58-303 provides that city and town mayors or their duly authorized representatives

have exclusive power and responsibility to make purchases of all supplies, apparatus, equipment, materials, and other things requisite for public purposes in and for the city and to make all necessary contracts for work or labor to be done or material or other necessary things to be furnished for the benefit of the city, or in carrying out any work or undertaking of a public nature in the city.

Ark. Code Ann. § 14-58-303(a) (Supp. 2015). This statute applies to cities of the first and second classes and to incorporated towns.

The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary meaning and usually accepted meaning in common language. The statute must be construed so that no word is left void, superfluous, or insignificant; and meaning and effect are given to every word in the statute if possible. When the language of the statute is plain and unambiguous, there is no need to resort to rules of statutory construction. MacSteel Div. of Quanex v. Arkansas Okla. Gas Corp., 363 Ark. 22, 210 S.W.3d 878 (2005).

Applying these precepts, I believe the unambiguous language of section 14-58-303(a) allows for only one conclusion, that the mayor or his designee has the sole authority to make purchases for public purposes on behalf of the city. This power cannot be reserved to or otherwise restricted by the city council.

To be sure, the city council must first appropriate funds to finance the purchases. Ark. Code Ann. § 14-55-204 (Repl. 1998). See also Ark. Code Ann. § 14-58-203(b) (Repl. 1998) ("The approval by the municipal governing body of the budget [submitted by the mayor] shall ... amount to an appropriation of funds which are lawfully applicable to the items therein contained."). With respect to such appropriations, a city council may later "alter or revise the budget[,] and unpledged funds appropriated by the governing body ... may be subsequently ... appropriated for another purpose," as long as any such reappropriation would not divert tax revenues dedicated for a specific purpose to another purpose or would prejudice any of the city's creditors. Ark. Code Ann. § 14-58-203(b) (Repl. 1998). Finally, the city council also has the authority to "provide, by ordinance, the procedure for making all purchases[,]" Ark. Code Ann. § 14-58-303(b)(1), with certain exceptions. See Ark. Code Ann. § 14-58-104 (Supp. 2015), which sets out specific commodities that cities and towns may purchase without having to solicit bids. That statute also allows cities and towns to renew or extend existing contracts without soliciting bids.

In my opinion, however, the above legislative powers to appropriate or redirect unspent funds, or to dictate purchasing procedure via ordinance, would not justify an ordinance that would seek to restrict the mayor's exclusive spending prerogative under section 14-58-303(a). Accord Ops. Att'y Gen. 2010-115 (stating that a second-class city could not enact an ordinance requiring the mayor to seek prior approval before spending appropriated funds); 2002-093 (opining that section 14-58-303 "unequivocally locates" in the mayor the "power to determine what contracts the city will execute"); 93-332 (opining that a city council is not empowered to require prior approval of purchases that are described in section 14-58-303(a)).

Sincerely,

LESLIE RUTLEDGE
Attorney General