Can a city council let its engineer negotiate professional-services contracts and direct the mayor's negotiations on larger contracts?

Plain-English summary

State Representative Dan Sullivan asked whether a proposed Jonesboro ordinance governing professional-services contracts conflicted with state law. The Attorney General said several provisions likely would conflict with the mayor's statutory authority, but the ordinance's meaning was unclear from its face. For contracts between $5,000 and $20,000, it named the city engineer or the engineer's designee to negotiate with one of three providers ranked by a council committee. That could be a procedural role, or it could improperly give the engineer authority to bind the city in place of the mayor. For contracts above $20,000, another provision appeared to let the council reject the mayor's negotiated contract and direct further negotiations. The council has fiscal and appropriation powers, but cannot use them to intrude on the mayor's duty to negotiate contracts. The AG declined to answer Sullivan's question about council members' personal liability because it depended on facts the opinion could not resolve.

Currency note

This opinion was issued in 2019. 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.

Common questions

Q: Did the AG say the whole Jonesboro ordinance was unlawful?
A: No. The AG noted that the ordinance had a severance provision intended to save its remaining parts if one part conflicted with state law. He said that provisions which intruded on the mayor's statutory authority would be inconsistent with state law; he did not construe the ordinance as a whole.

Q: Why couldn't the AG just rule on the ordinance line by line?
A: The AG said construing a local ordinance "necessarily involves a determination of the intent of the city council," as well as other factors that may not appear on its face. His office declined to resolve those matters. He explained which interpretations of the proposed contracting provisions would conflict with state law.

Q: How much purchasing authority did city councils have at the time?
A: A city council could set purchasing procedures for contracts of $20,000 or less, provided those procedures did not conflict with state law. The mayor or an authorized representative retained the statutory authority to make purchases and contracts, and the mayor had the final say on a services contract.

Q: What about council members' personal liability?
A: The AG declined to answer. Whether a member had immunity from suit, and whether particular actions could forfeit it, depended on surrounding facts and circumstances. He directed the question to the city attorney or other local counsel.

Q: Could a city engineer ever sign professional-services contracts?
A: The AG said the engineer could work out details of a professional-services contract as part of the city's procedure. He could not decide from the ordinance's wording whether it went further and gave the engineer authority to bind the city in place of the mayor. That interpretation would usurp the mayor's statutory authority.

Background and statutory framework

Cities in Arkansas are creatures of state law. Under Ark. Const. art. 12, § 4, municipal corporations exercise only the legislative powers granted by the General Assembly. The Arkansas Supreme Court reaffirmed this in Cosgrove v. City of West Memphis, 327 Ark. 324, 326, 938 S.W.2d 827, 828 (1997): cities have "no inherent powers" beyond those expressly granted, necessarily implied, or indispensable to express grants.

Ark. Code Ann. §§ 14-43-601, -602, 14-42-307, 14-54-101, and 14-55-101 condition municipal legislative authority on consistency with state law. Ark. Code Ann. § 14-58-303(a) gave the mayor or an authorized representative exclusive power to make city purchases and contracts. Subsection (b)(1) let the council set purchasing procedures where the contract amount did not exceed $20,000, but the procedures could not conflict with state law.

The AG could not tell whether naming the city engineer to negotiate contracts between $5,000 and $20,000 assigned a procedural role or gave the engineer authority to bind the city. The latter would usurp the mayor's power. He likewise found the provision for contracts above $20,000 unclear on its face, but said the council's fiscal powers could not intrude on the mayor's duty to negotiate city contracts.

Citations

• Ark. Code Ann. § 14-58-303(a), (b)(1)
• Ark. Code Ann. § 14-43-502(b)(1)
• Ark. Code Ann. § 14-55-204
• Ark. Code Ann. § 14-58-203(b)
• Ark. Code Ann. § 21-9-301
• Ark. Const. art. 12, § 4
• Cosgrove v. City of West Memphis, 327 Ark. 324, 938 S.W.2d 827 (1997)

Source

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

Original opinion text

Opinion No. 2019-035
December 20, 2019
The Honorable Dan Sullivan
State Representative
P. O. Box 19406
Jonesboro, AR 72403-2406

Dear Representative Sullivan:

This is in response to your request for an opinion on the following question concerning a proposed Jonesboro City ordinance:

> Does the attached proposed ordinance violate the Arkansas Constitution or state law? Would the ordinance subject the city council members to personal liability in the event litigation was filed related to actions taken by members of the city council that arise out of this ordinance?

RESPONSE

In my opinion, several of the provisions of the proposed ordinance likely would be inconsistent with the power given to the mayor by state law. As to your question regarding the potential for personal liability against individual council members as a result of the ordinance, I am unable to render an opinion. Issues regarding a city council member's statutory immunity and what actions in situations as presented by the ordinance might forfeit that immunity are very fact intensive, and I cannot speculate on facts not presented to me.

DISCUSSION

Before addressing your questions, it will be helpful to provide some background information regarding the ordinance, including some of the concerns that have been raised about it.

The city council for the City of Jonesboro, a city of the first class, passed an ordinance changing how the city government would contract for professional services. The mayor returned the ordinance unsigned. Among the concerns with the ordinance was that it would, in general, remove the mayor's power to negotiate contracts for professional services for the city and in some cases give that power to a city employee. There were also concerns, in other cases, that it would subject the mayor's negotiated contracts to review by the city council, which could reject the negotiated contract and either give the mayor instructions on how to change the negotiated contract or, failing that, direct the mayor to start the negotiation process over again. Finally, there was concern that the ordinance's new, or revised, procurement procedures for professional services would violate state law if the estimated contract amount exceeded $2 million.

With this information in mind, I now turn to your questions.

Question 1: Does the attached proposed ordinance violate the Arkansas Constitution or state law?

State law provides that the mayor or the mayor's designee has the sole authority to negotiate contracts and make purchases on the city's behalf. Thus, to the extent that certain sections of the ordinance are in tension with the mayor's exclusive exercise of this authority, these portions of the ordinance would be inconsistent with state law.

Municipal corporations derive their legislative powers from the general laws of the State. "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." Cities are empowered to enact ordinances concerning municipal affairs, provided that they do not conflict with state law.

With respect to fiscal affairs, state law provides that mayors or their authorized representatives have the exclusive power and responsibility to make purchases requisite for public purposes in and for the city. Furthermore, the mayor has the power and authority to make all necessary contracts for services to be performed 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.

A city council has the authority to set out, by ordinance, the procedures for making purchases for the city where the contracted amount of the goods or services does not exceed $20,000. But those procedures cannot be inconsistent with state law.

With the foregoing in mind, it is unclear whether the ordinance is consistent with state law, specifically Ark. Code Ann. § 14-58-303 relating to municipal purchasing and contracts in general. One part of the ordinance appears on its face to modify the city's procedures for procuring professional service providers where the cost for such services is between $5,000 and $20,000. This part of the ordinance, however, specifically names the city engineer, or the city engineer's designee, as the city's representative to negotiate a contract with one of three providers as ranked by a public works committee of the city council. It is unclear from the four corners of the ordinance whether the city council intended this change to be merely an issue of procedure (nominating the city engineer to work out the details of these professional-services contracts up to $20,000) or a matter of giving the city engineer the authority to bind the city in place of the mayor. If the latter, then this would clearly usurp the mayor's "exclusive power and responsibility" to "make all necessary contracts" for the city. In my opinion, the mayor has the final say whether the city enters into a contract for services.

Another part of the ordinance concerning professional services in cases where the services' estimated cost would exceed $20,000 is similarly unclear from the face of it. This part appears to grant to the city council power to, in essence, direct the negotiations by giving the council the ability to reject the contract the mayor has negotiated and send him back to the negotiating table with instructions or to start negotiations anew with another city council's pre-approved candidate. Certainly, a city council has the statutory authority to manage and control the city's finances. And it has the power of the purse through its appropriation authority. However, this power does not and cannot lawfully intrude upon the mayor's exclusive duty to negotiate contracts for the city.

Question 2: Would the ordinance subject the city council members to personal liability in the event litigation was filed related to actions taken by members of the city council that arise out of this ordinance?

This question is beyond the scope of an opinion from this office. Questions regarding a city council member's immunity from suit and situations where that immunity might be forfeited are highly dependent upon all the surrounding facts and circumstances. I cannot speculate in this regard. This question is better directed to the city attorney or other local counsel to whom the city usually looks for advice.

Sincerely,

LESLIE RUTLEDGE
Attorney General

1 Your question asks if the ordinance violates the constitution or state law, suggesting or implying that the answer would be either a blanket “yes” or “no,” and that if yes, the entire ordinance would be invalid. It should be noted that the ordinance has a severance provision that would attempt to save the remaining parts of the ordinance should some part be deemed contrary to state law. Accordingly, the parts of the ordinance that may offend state law would not necessarily render the entire ordinance unlawful.

Furthermore, to the extent that your request for my opinion requires me to construe the city ordinance, this I must decline to do. This office has long said that the construction of local ordinances necessarily involves a determination of the intent of the city council (or a quorum court), a factor that this office is not well situated to consider and address. It also requires a consideration of other factors that could reflect a particular intent on the part of the local governing body that is not apparent from the face of the ordinance. See, e.g., Ops. Att’y Gen. 2014-081, 2012-084, 98-271.

2 Ark. Const. art. 12, § 4.

3 Cosgrove v. City of West Memphis, 327 Ark. 324, 326, 938 S.W.2d 827, 828 (1997).

4 See, e.g., Ark. Code Ann. §§ 14-43-601, -602 (Repl. 2013) (cities can exercise legislative power over “municipal affairs”); 14-42-307 (cities can exercise all powers conferred by state law that are “not contrary” to state law); 14-54-101 (cities can exercise powers that are “not inconsistent” with the general laws of the state); 14-55-101 (cities can enact ordinances that are “not inconsistent with the laws of the state”).

5 Ark. Code Ann. § 14-58-303(a) (Supp. 2017).

6 Id.

7 Ark. Code Ann. § 14-58-303(b)(1).

8 Id. at § 14-58-303(a).

9 Ark. Code Ann. § 14-43-502(b)(1) (Supp. 2017).

10 See id. at § 14-55-204 (Supp. 2017). See also id. at § 14-58-203(b) (Repl. 2013) (“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.”).

11 See Ark. Code Ann. § 21-9-301 (Repl. 2016).