Can a growing Arkansas city increase the number of commissioners on its housing authority board?

Plain-English summary

Representative Greg Leding asked whether the Fayetteville Housing Authority's Board of Commissioners could be expanded from five members to nine, given the city's substantial population growth since the Authority's 1966 chartering. The Authority's bylaws had last been revised in October 2009. Leding's question gave both possible paths a hearing: a Fayetteville city ordinance, or a Housing Authority bylaw amendment.

The AG concluded neither path was available. Arkansas Code Annotated § 14-169-208(a)(2)(A) mandates that a housing-authority board consist of "five (5) persons as commissioners." Housing authorities are statutory creatures performing state functions under the police power, not "municipal affairs" subject to local legislation. The Arkansas Constitution, Article 12, § 4, prohibits local legislation contrary to the general laws of the state, and § 14-43-601(a)(1)(J) explicitly classifies housing as a state matter. The City of Fort Smith reached the same outcome for that city in 1974, when the Arkansas Supreme Court rejected Fort Smith's attempted ordinance to alter the statutory procedure for filling commissioner vacancies and to increase the size of the Authority's board.

The Authority itself cannot do by bylaw what the City cannot do by ordinance. Section 14-169-211(5) lets a housing authority adopt bylaws "not inconsistent with" the housing-authority statutes. A bylaw that changed the statutory commissioner count would be inconsistent and therefore void.

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.

Why housing authorities are state matters, not municipal affairs

The doctrinal foundation for this opinion is the state-affairs vs. municipal-affairs distinction in Arkansas law. Cities can legislate "in any and all matters ... pertaining to its municipal affairs" under § 14-43-602(a). But Article 12, § 4 of the Arkansas Constitution and § 14-43-601(a)(2)(B) prohibit municipal legislation that conflicts with general state law. The legislature has expressly classified certain matters as "state affairs ... subject to the general laws of the State of Arkansas." Housing falls into that category under § 14-43-601(a)(1)(J).

The Arkansas Supreme Court's analysis in City of Fort Smith v. Housing Authority of City of Fort Smith, 256 Ark. 254 (1974), is directly on point. The Court considered whether Fort Smith could "adopt an ordinance to amend the [statutory] procedure ... for the filling of vacancies on the local Housing Authority Board of Commissioners as well as the right to increase the size of the Board." The Court acknowledged the "intimate ... connection between the city and the authority," and the fact that city officials had appointment power. But the Authority was created to "deal[] with public health standards," squarely within the state's police power. Cities therefore could not "substitute [their] own method of filling vacancies on the Housing Authority Board," and could not (the AG extended the holding) substitute their own number of commissioners.

Fagan Elec. Co. v. Housing Authority of City of Blytheville, 216 Ark. 932 (1950), reinforces the point: a housing authority is "in essence a separate Authority created to cooperate with the city or county," not a creature of municipal law.

Why housing authority bylaws cannot increase the number

Section 14-169-211(5) gives housing authorities the power to "make and from time to time amend and repeal bylaws, rules, and regulations ... to carry into effect the powers and purposes of the authority." But the same statute limits that power to bylaws "not inconsistent with this subchapter." A bylaw that increased the commissioner count from five to nine would directly conflict with § 14-169-208(a)(2)(A)'s requirement of "five (5) persons as commissioners."

The AG also pointed to § 14-169-208(c)(2)(B)(i), which provides that "commissioners shall appoint a successor" as vacancies arise. The vacancy-filling mechanism is itself part of the statutory framework that cannot be varied by bylaw.

The result: the legislature has fixed the number of housing-authority commissioners at five. Only the legislature can change that.

Common questions

Did Arkansas later change the law on housing authority size?
The opinion was issued in 2017. Subsequent legislative changes are possible but were not addressed in this opinion. Practitioners working on housing authority governance should check current statutes for any amendments.

Could a city create a separate advisory board to supplement the housing authority?
The opinion does not address that. Cities and authorities can create advisory committees that work with the statutory housing authority without changing the housing authority's own commissioner count. Those advisory bodies would not be the housing authority's governing board; they would just be advisory groups.

What about removing commissioners?
Section 14-169-210(a) lets a city "remove a commissioner for misconduct" (Op. Att'y Gen. 2009-125 cited this point). That removal authority is statutorily granted and does not change the five-commissioner count.

Can a housing authority operate housing developments inconsistent with city zoning?
Different question. Section 14-169-205(a) makes housing developments themselves subject to "building laws, ordinances, and regulations applicable to the locality in which the housing project is situated." So housing-authority projects have to comply with city zoning even though the authority's governance is state-controlled.

What was the practical impact for Fayetteville?
The Fayetteville Housing Authority remained at five commissioners. If Fayetteville's growth genuinely required more capacity, the path was legislative: ask the General Assembly to amend § 14-169-208 to allow larger boards in larger cities. Op. Att'y Gen. 2007-051 had previously reached a similar conclusion about term limits: a municipality cannot impose term limits on housing commissioners by ordinance because the authority is not a municipal affair.

Why does this matter beyond Fayetteville?
Every Arkansas housing authority operates under § 14-169-208's five-commissioner cap. That includes Little Rock, Fort Smith, Pine Bluff, and dozens of smaller-city authorities. The opinion is broadly applicable.

Background and statutory framework

Arkansas's housing authority law is at Title 14, Chapter 169 of the Arkansas Code. Housing authorities are created on the city's affirmative action under § 14-169-208, but once created they are state political subdivisions performing state functions, not municipal departments. They have appointed commissioners (§ 14-169-208), can adopt limited bylaws (§ 14-169-211), and can be subjected to certain municipal regulations on their housing developments (§ 14-169-205) but not on their governance.

The state-affairs vs. municipal-affairs distinction at § 14-43-601 is a core feature of Arkansas municipal-law analysis. Cities can do most things internally, but anything the legislature has classified as a state matter remains subject to general state law regardless of city size or local preference.

Citations

• Ark. Code Ann. § 14-43-601(a)(1)(J) (housing as state matter)
• Ark. Code Ann. § 14-43-602(a) (city municipal affairs power)
• Ark. Code Ann. § 14-54-101 (city authority subject to general state law)
• Ark. Code Ann. § 14-169-205(a) (housing development subject to local building law)
• Ark. Code Ann. § 14-169-208(a)(2)(A) (five commissioners)
• Ark. Code Ann. § 14-169-208(c)(2)(B)(i) (vacancy filling)
• Ark. Code Ann. § 14-169-210(a) (city removal of commissioner)
• Ark. Code Ann. § 14-169-211(5) (bylaws power, not inconsistent)
• Ark. Const. art. 12, § 4 (no local law contrary to general state law)
• City of Fort Smith v. Housing Authority of City of Fort Smith, 256 Ark. 254, 506 S.W.2d 534 (1974) (city cannot alter Authority governance by ordinance)
• Fagan Elec. Co. v. Housing Authority of City of Blytheville, 216 Ark. 932, 228 S.W.2d 39 (1950) (housing authority as separate state-cooperative entity)
• Op. Att'y Gen. 2007-051 (no term limits by city ordinance)
• Op. Att'y Gen. 2009-125 (city removal of commissioner)

Source

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

Original opinion text

Opinion No. 2017-130
December 18, 2017
The Honorable Greg Leding
State Representative
P. 0. Box 1445
Fayetteville, AR 72702-1445
Dear Representative Leding:
STATE OF ARKANSAS
ATTORN EY GENERAL
LESLI E RUTLEDGE
I am responding to your request for an opinion regarding the Fayetteville Housing
Authority's Board of Commissioners. You explain that Fayetteville's population
has grown significantly since the Board of Commissioners was chartered in 1966.
In light of this growth, you ask whether the number of commissioners serving the
Fayetteville Housing Authority may be increased from five (the current total) to
nine commissioners. You have enclosed with your request the bylaws of the
Fayetteville Housing Authority, which were last revised on October 22, 2009.
RESPONSE
In my opinion, the number of commissioners must remain at five. Housing
authorities are statutory creatures "within the police power of the state,"1 so they
are not generally subject to municipal legislation. And Arkansas statute specifies
that there be "five (5) persons as commissioners."2 Therefore, I do not believe the
City of Fayetteville is authorized to increase the number of commissioners by
ordinance. Likewise, a housing authority can only promulgate b1'laws that are
"not inconsistent with" the statutes governing housing authorities. Because the
1 Ark. Code Ann. § 14-43-60l(a)(l)(J) (Repl. 2013); see also City of Fort Smith v. Housing
Authority of City of Fort Smith, 256 Ark. 254, 506 S.W.2d 534 (1974).
2 Ark. Code Ann. § l 4-l 69-208(a)(2)(A) (Repl. 1998).
3 Ark. Code Ann.§ 14-169-211(5) (Repl. 1998).
323 CENTER STREET. Sum: 200 . LITTLE ROCK. ARKANSAS 7220 I
TELEP HONE (501) 682-2007 · FAX (50 I) 682-8084
ARKANSASAG.GOV The Honorable Greg Leding
State Representative
Opinion No. 2017-130
Page2
applicable statute requires five commissioners, I do not believe a housing authority
can amend its bylaws to increase that number to nine.
DISCUSSION
You ask whether a housing authority's governing board can accommodate nine
commissioners instead of five. I take this question as focusing on the ability of
local entities-the City of Fayetteville, or the Fayetteville Housing Authority
itself-to change aspects of a housing authority's operation. In my opinion,
neither of these entities may increase the number of commissioners serving on a
housing-authority board.
City of Fayetteville
A city is empowered to legislate "in any and all matters . . . pertaining to its
municipal affairs .... "4 But this authority has its limits where municipal legislation
would be "contrary to the general laws of the state."5 Thus, cities cannot (by
ordinance or otherwise) pass legislation in conflict with "state affairs ... subject to
the general laws of the State of Arkansas."6 And a housing authority is "created
for the performance of a state function, separate and apart from the municipality in
which it exists."7
One case is especially instructive as it concerns municipal influence on a housing
authority's governing board. In a dispute between Fort Smith and the Fort Smith
Housing Authority, the Arkansas Supreme Court considered whether the city
could "adopt an ordinance to amend the [statutory] procedure . . . for the filling of
vacancies on the local Housing Authority Board of Commissioners as well as the
right to increase the size of the Board."8 The Court noted that the "power of
appointment" of the housing-authority members had been "vested in city
officials," and it acknowledged the "intimate ... connection between the city and
4 Ark. Code Ann. § 14-43-602(a) (Rep!. 2013).
5 Ark. Const. art. 12, § 4.
6 Ark. Code Ann.§ 14-43-60l(a)(l).
7 City of Fort Smith, 256 Ark. at 259, 506 S.W.2d at 537.
8 Id. at 255, 506 S.W.2d at 535. The Honorable Greg Leding
State Representative
Opinion No. 2017-130
Page 3
the authority .... "9 Even so, the Fort Smith Housing Authority was established to
"deal[] with public health standards," a subject "squarely within the traditional
police powers" of the state.10 The City of Fort Smith therefore could not
"substitute its own method of filling vacancies on the Housing Authority Board,"
which would amount to local legislation conflicting with general state law. 11
It is my opinion that the City of Fayetteville cannot alter the number of
commissioners serving on the Board of Commissioners for the Fayetteville
Housing Authority. A city may legislate with respect to matters properly
considered "municipal affairs," but the Arkansas Constitution prevents local
legislation contrary to the "general laws of the state."12 And Arkansas statute
unequivocally provides for five commissioners per housing-authority board.13
Related statutes afford cities some discretion with respect to housing authorities-
for example, housing developments themselves are subject to the "building laws,
ordinances, and regulations applicable to the locality in which the housing project
is situated."14 However, the number of commissioners is fixed for the life of a
housing authority at five.15 And I interpret this unambiguous body of law "just as
9 Id. at 259, 506 S.W.2d at 537.
'0 Id. at 258, 259, 506 S.W.2d at 536, 537 (stating that a housing authority "is in essence a
separate Authority created to cooperate with the city or county as the case may be."); cf Fagan
Elec. Co. v. Housing Authority of City of Blytheville, 216 Ark. 932, 934, 228 S.W.2d 39, 40
(1950) (noting that for purposes of a competitive-bidding statute, a housing authority is like "any
other corporation as to which the State has done nothing except bring it into existence.").
11 City of Fort Smith, 256 Ark. at 257, 506 S.W.2d at 536; accord Op. Att'y Gen. 2007-051
(opining that "a municipality may not impose term limits on a housing commissioner by
ordinance because the authority is not a municipal affair subject to the powers of the
municipality.").
12 Ark. Const. art. 12, § 4; see also Ark. Code Ann. §§ 14-43-601(a)(2)(B); 14-54-101 (Repl.
1998) (cities can exercise powers that are "not inconsistent" with the general laws of the state).
13 Ark. Code Ann. § 14-169-208(a)(2)(A) ("Upon receiving the notice, the mayor shall appoint
five (5) persons as commissioners of the housing authority created for the city.").
14 Ark. Code Ann. § 14-169-205(a) (Repl. 1998); cf Op. Att'y Gen. 2009-125 (citing Ark. Code
Ann. § 14-169-210(a) (Repl. 1998) for the proposition that a city "may remove a commissioner
for misconduct.").
15 Ark. Code Ann. §§ 14-69-208(a)(2)(A), (c)(2)(B)(i) (stating that "commissioners shall appoint
a successor" as vacancies arise). The Honorable Greg Leding
State Representative
Opinion No. 2017-130
Page 4
it reads."16 Thus, I do not believe the City of Fayetteville may "substitute its
own"17 number of commissioners for the five commissioners set by the legislature.
Fayetteville Housing Authority
In my opinion, the Fayetteville Housing Authority is also unauthorized to increase
the number of its commissioners. The Arkansas Supreme Court classifies housing
authorities as political subdivisions, which are entities "created by the General
Assembly" that have "to some extent ... the power of local government."18 And a
housing authority's commissioners are generally empowered to "make and from
time to time amend and repeal bylaws, rules, and regulations ... to carry into effect
the powers and purposes of the authority." 19
But commissioners' rule-making abilit6' is expressly limited to promulgations "not
inconsistent with th[ e] subchapter"2 pertaining to housing authorities. As
discussed above, the relevant statutes require an initial appointment of five
housing-authority commissioners, to be replaced or reappointed when the "term of
office of a commissioner expires or other vacancy occurs .... "21 According to the
plain language of these statutes, any housing-authority bylaw purporting to
increase the number of commissioners from five to nine would be void as
"inconsistent with this subchapter."22
16 Brock v. Townsell, 2009 Ark. 224 at 9, 309 S.W.3d 179, 185-86.
17 City of Fort Smith, 256 Ark. at 257, 506 S.W.2d at 536.
18 Dermott Special School District v. Johnson, 343 Ark. 90, 95, 32 S.W.3d 477, 480 (2000)
(quoting Muse v. Prescott School District, 233 Ark. 789, 793, 349 S.W.2d 329, 331 (1961)).
19 Ark. Code Ann. § 14-169-211 ( 5) ("Govemmental functions; necessary powers").
20 Id.
21 Ark. Code Ann. §§ 14-169-208(c)(2)(B)(i), (c)(2)(A) (providing that all vacant commissioner
positions "shall be filled for the unexpired term.").
22 Id. at § 14-169-211(5). I cannot opine regarding the particular bylaws enclosed with your
opinion request. See Op. Att'y Gen. 2015-005 ("[T]he Attorney General's office declines to
interpret and apply local ordinances and resolutions . . . because doing so involves significant
questions of fact."). The Honorable Greg Leding
State Representative
Opinion No. 2017-130
Page 5
CONCLUSION
An increase to the number of commissioners serving the Fayetteville Housing
Authority would be improper, in my opinion. Arkansas statute sets the number of
housing-authority commissioners at five. And because housing authorities are
political subdivisions created under the state's general laws, the City of
Fayetteville would not be authorized to pass an ordinance conflicting with the
statute calling for five commissioners. Similarly, the Fayetteville Housing
Authority cannot adopt bylaws inconsistent with housing-authority statutes. In my
opinion, this rule extends to the adoption of any bylaws purporting to raise the
number of commissioners from five to nine.
Sincerely,
~~
Attorney General