Can a city council pass an ordinance that takes professional-services contracting away from the mayor and gives it to a city engineer or city council vote?

Plain-English summary

State Representative Dan Sullivan asked whether a proposed Jonesboro ordinance, which would reassign professional-services contracting from the mayor to either the city engineer or a city council committee, conflicted with state law. The Attorney General concluded that several provisions likely did conflict. Arkansas Code § 14-58-303(a) gave the mayor or the mayor's designee "the sole authority to negotiate contracts and make purchases on the city's behalf." The proposed ordinance attempted to (1) name the city engineer as the city's negotiator for contracts between $5,000 and $20,000 and (2) let the city council reject the mayor's negotiated contracts above $20,000 and either redirect the mayor's negotiations or order them to start over. Both arrangements would intrude on the mayor's statutory authority. The AG declined to answer Representative Sullivan's second question about personal liability for council members, calling it too fact-intensive for an opinion and a question better directed to local counsel.

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 the ordinance had a severance clause and said only that specific provisions intruding on the mayor's contracting authority would be inconsistent with state law. Other parts could survive.

Q: Why couldn't the AG just rule on the ordinance line by line?
A: The opinion explained that construing local ordinances "necessarily involves a determination of the intent of the city council," which depends on facts and context the AG's office is not positioned to evaluate. The opinion limited itself to identifying conflicts with state statutes.

Q: How much purchasing authority did city councils have at the time?
A: Under Ark. Code Ann. § 14-58-303(b)(1), city councils could set the procedures for purchases up to $20,000, but only if those procedures did not conflict with state law. The mayor still had to be the one actually negotiating and signing.

Q: What about council members' personal liability?
A: The AG declined that question, saying immunity questions under Ark. Code Ann. § 21-9-301 turn on specific facts and forfeiture theories that an opinion cannot resolve. The Attorney General directed the question to the city attorney.

Q: Could a city engineer ever sign professional-services contracts?
A: The AG distinguished between procedural roles (a city engineer helping select a vendor) and binding authority (signing the contract on the city's behalf). Only the mayor or the mayor's designee could lawfully bind the city.

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 all condition municipal legislative authority on consistency with state law. Ark. Code Ann. § 14-58-303(a) was the controlling statute for procurement: it placed exclusive authority to make purchases and contracts in the mayor or the mayor's authorized representative. Subsection (b)(1) let the council write rules for goods and services contracts under $20,000, but the rules themselves had to stay inside what state law allowed.

The Jonesboro ordinance attempted to insert the city engineer into mid-tier professional-services contracts ($5,000–$20,000) and to subject the mayor's larger contracts to council rejection or renegotiation orders. Both moves, in the AG's view, attempted to relocate authority that state law placed exclusively with the mayor.

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