Did Arkansas's Act 714 of 2021 take away an Arkansas city council's authority to set policies for its police department?

Plain-English summary

Representative Charlene Fite asked whether Act 714 of 2021, which rewrote Ark. Code Ann. § 14-52-101 to require cities of the first class either to establish a police department or to contract for law enforcement services, had quietly stripped city councils of the power to set rules for their police departments. The concern came from the new statute's deletion of language that previously allowed the city council "to prescribe [the police department's] duties and define its powers." If a Lincoln, Arkansas ordinance required council approval of police rules and regulations, was that ordinance still lawful?

The AG answered that Act 714 did not generally remove the council's policy authority. Asked whether a council may dictate or approve internal policies, she answered “generally ‘yes’,” but said a specific policy would be needed for a definitive answer. She identified other statutes and the city's authority over municipal affairs. The council still:

• Sets holiday compensation under § 14-52-105
• Sets sick leave and catastrophic leave under § 14-52-107
• Sets payroll incentives under § 14-52-108
• Directs the number of subordinate police officers under § 14-52-201
• Adopts personnel procedures for officers under § 14-52-301
• Exercises full legislative authority over "municipal affairs" under § 14-43-601(a)(1) and § 14-43-602(a)

Officers and chiefs are also bound to enforce all "laws, ordinances, and regulations" set by the council. Together, these statutes establish the city council as the primary policy-setting authority for the city's police department.

Two caveats. First, if the city has a civil service commission for its police force (Ark. Code Ann. § 14-51-301), the commission's rulemaking power must be considered alongside the council's; the AG noted Lincoln does not have one. Second, council policies cannot conflict with state law, both as a general municipal-corporation rule (§ 14-55-101) and as a constitutional rule (Ark. Const. art. 12, § 4).

The opinion deliberately avoided a definitive answer for hypothetical specific policies. Whether any particular ordinance crosses the line into a state-law conflict has to be analyzed on its own terms.

What this means for you

City councils

Act 714 did not generally take away your authority to set internal police-department policies. Check the authority for each proposed policy and whether it conflicts with state law. The AG did not decide the legality of a particular Lincoln ordinance or any particular policy; she said a definitive answer would require the policy's text. If the city has a police civil service commission, consider its rulemaking authority too.

Mayors and police chiefs

The opinion says the police chief and other officers must enforce the “laws, ordinances, and regulations” set by the council. It does not decide whether a particular proposed internal policy is valid. Refer a disputed policy to the city attorney for a review against the relevant statutes and any civil service rules.

City attorneys

Act 714 requires a first-class city to establish a police department or contract for law enforcement services, and removed earlier “prescribe its duties and define its powers” language from § 14-52-101. The AG found that other statutes still support council policy authority. For a particular proposed policy, compare its terms with state law and, where applicable, the civil service commission's rulemaking authority; the opinion does not give a definitive answer without a specific policy.

Civil service commission members

The AG said that where a city has a police civil service commission, the commission's rulemaking authority “must be considered” when addressing police policy questions. Her answer assumed Lincoln did not have one. Review a proposed policy in light of both bodies' applicable authority.

Common questions

Q: What did Act 714 of 2021 actually change?
A: Act 714 amended Ark. Code Ann. § 14-52-101 to require a first-class city's governing body either to establish a city police department and provide it with proper means and equipment, or to enter into a contract or interlocal agreement for law enforcement services. The amendment removed older language that authorized the city council "to prescribe [the police department's] duties and define its powers."

Q: Did Act 714 strip city councils of police-policy authority?
A: No. The AG concluded that other statutes and the city's general municipal-affairs authority still authorize the council to adopt policies. Act 714 changed the structure of § 14-52-101 but did not amend those other statutes.

Q: What are some examples of policies a council can still set?
A: Holiday pay, sick leave, catastrophic leave, payroll incentives, the number of subordinate officers to be appointed, hiring procedures, and personnel-handling procedures, among others. The opinion lists the statutes that grant each of these powers.

Q: Does this opinion approve a particular use-of-force or hiring policy?
A: No. It does not examine those policies. The AG said a more definitive answer would require reference to the specific policy or policies, and concluded generally that council policies must not be contrary to state law.

Q: What if the city has a civil service commission?
A: Then the commission also has rulemaking authority under § 14-51-301. The AG specifically reminded the requester that policy questions in such a city require considering the commission's role. Lincoln, the city referenced in the opinion, does not have one.

Q: What limit did the AG put on the council's authority?
A: Its internal policies must not be contrary to state law. The opinion's footnote quotes Ark. Const. art. 12, § 4: “[n]o municipal corporation shall be authorized to pass any laws contrary to the general laws of the state.” It does not rule on an example policy.

Q: What does the opinion say about police officers' duties toward council rules?
A: It quotes a statutory duty for the chief and other officers to “diligently and faithfully enforce at all times all laws, ordinances, and regulations” set by the council. Whether a specific internal policy is valid remains a separate question.

Q: Does this opinion bind a court?
A: No. AG opinions are persuasive authority in Arkansas but not binding. A court interpreting Act 714 in a specific case might agree or disagree. The opinion's framework, however, is consistent with prior AG opinions (Op. Att'y Gen. 2012-084 and 2000-283 are cited).

Background and statutory framework

The earlier version of Ark. Code Ann. § 14-52-101 read: "The city council shall have power to establish a city police department, to organize it under the general superintendence of the mayor, and to prescribe its duties and define its powers in such manner as will most effectually preserve the peace of the city, secure the citizens thereof from personal violence, and safeguard their property from fire and unlawful depredations."

Act 714 rewrote the section to focus on the establish-or-contract requirement:

(a) The governing body of a city of the first class shall establish a city police department and provide the city police department with the proper means and equipment to provide law enforcement services for the city and its inhabitants in a manner that will most effectually preserve the peace of the city, secure the citizens from personal violence, and safeguard their property.

(b) In lieu of establishing a city police department under this section, a governing body of a city of the first class may enter into a contract or interlocal agreement for law enforcement services with an existing law enforcement agency.

The deletion of the "prescribe its duties and define its powers" language raised the concern that drove the opinion request. The AG looked to other statutes to confirm that the deletion did not eliminate the council's policymaking authority.

§ 14-43-601(a)(1) defines "municipal affairs" as "all matters and affairs of government germane to, affecting, or concerning the municipality or its government," subject to certain "state affairs" carve-outs. § 14-43-602(a) authorizes the city to "perform any function and exercise full legislative power in any and all matters of whatsoever nature pertaining to its municipal affairs."

§ 14-43-502(a) and § 14-55-101 give city councils broad legislative power over corporate matters, subject to state law. Together, these statutes form the Arkansas home-rule framework that backs up the council's policymaking authority over its police department.

For employee-discipline matters specifically, the AG cited Op. Att'y Gen. 2012-084 (a city council can enact an ordinance that creates a council role respecting officer discipline) and Op. Att'y Gen. 2000-283 (employee discipline in a city without a civil service commission falls within the council's general authority over municipal affairs).

Citations

• Act 714 of 2021 (rewrote Ark. Code Ann. § 14-52-101)
• Ark. Code Ann. § 14-52-101 (current establish-or-contract requirement)
• Ark. Code Ann. § 14-52-105 (holiday compensation)
• Ark. Code Ann. § 14-52-107 (sick leave and catastrophic leave)
• Ark. Code Ann. § 14-52-108 (payroll incentives)
• Ark. Code Ann. § 14-52-201 (number of subordinate officers; officer enforcement duty)
• Ark. Code Ann. § 14-52-301 (personnel procedures for officers)
• Ark. Code Ann. § 14-51-301 (civil service commission rulemaking, where one exists)
• Ark. Code Ann. § 14-43-502(a) and § 14-43-602(a) (council powers and full legislative power)
• Ark. Code Ann. § 14-43-601(a)(1) (definition of municipal affairs)
• Ark. Code Ann. § 14-55-101 (city ordinances must not conflict with state law)
• Ark. Const. art. 12, § 4 (no municipal corporation shall pass laws contrary to general laws of the state)
• Op. Att'y Gen. 2012-084 (council role in police discipline)
• Op. Att'y Gen. 2000-283 (council authority over discipline absent civil service commission)
• Op. Att'y Gen. 94-274 (civil service commission rulemaking authority)

Source

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

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked official source is authoritative.

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2022-012

April 26, 2022

The Honorable Charlene Fite
State Representative
P. O. Box 7300
Van Buren, AR 72956-0262

Dear Representative Fite:

This is in response to your request for my opinion concerning a city council's authority to adopt rules and regulations for its municipal police force. As background for your question, you refer to a proposed Lincoln City Council ordinance that would require the Council's approval of rules and regulations for the Lincoln Police Department. Your specific question is as follows:

> May a city council of a city of the first class dictate or approve internal policies for a municipal police department in light of Act 714 of 2021?

RESPONSE

The answer to your question is generally "yes." Reference to a specific policy or policies would be necessary in order to provide a more definitive answer.

DISCUSSION

The act you have asked about, Act 714 of 2021, amended Ark. Code Ann. § 14-52-101 to require governing bodies of cities of the first class to either establish police departments or contract for law enforcement services:

> (a) The governing body of a city of the first class shall establish a city police department and provide the city police department with the proper means and equipment to provide law enforcement services for the city and its inhabitants in a manner that will most effectually preserve the peace of the city, secure the citizens from personal violence, and safeguard their property.
>
> (b) In lieu of establishing a city police department under this section, a governing body of a city of the first class may enter into a contract or interlocal agreement for law enforcement services with an existing law enforcement agency.

Section 14-52-101 previously stated that a city council "shall have power to establish a city police department, to organize it under the general superintendence of the mayor, and to prescribe its duties and define its powers . . . ." I gather your question is prompted by Act 714's deletion of the language regarding a city council's power to "prescribe [the police department's] duties and define its powers." The concern, presumably, is that a city's governing body cannot establish policies for a police department, absent this language.

That concern is unwarranted. Several other statutes plainly vest the city council with the authority to set certain policies for the city's police department. The council establishes holiday compensation pursuant to Ark. Code Ann. § 14-52-105 (Repl. 2013), sick leave and catastrophic leave pursuant to Ark. Code Ann. § 14-52-107 (Supp. 2021), and payroll incentives pursuant to Ark. Code Ann. § 14-52-108 (Repl. 2013). The city council's policy-making authority with respect to the police department is also apparent under Ark. Code Ann. § 14-52-201 (Repl. 2013), which requires the city's governing body to "direct by general ordinance the number of subordinate police officers to be appointed." The chief of police and all other officers are statutorily required, moreover, to "[d]iligently and faithfully enforce at all times all laws, ordinances, and regulations" set by the council. The city council is also specifically authorized to adopt procedures to guide the handling of personnel issues regarding law enforcement officers.

Additionally, and perhaps most significantly, a city council's general authority to establish policies for the police department derives from the state law authorizing the city to direct "municipal affairs," which are defined as "all matters and affairs of government germane to, affecting, or concerning the municipality or its government," except for certain matters that are "state affairs." A city may "perform any function and exercise full legislative power in any and all matters of whatsoever nature pertaining to its municipal affairs . . . ." This office has previously opined, therefore, that "a city council might, in the exercise of its authority over municipal affairs, . . . enact an ordinance that would create a council role respecting the disciplining of police officers."

The above statutes, taken together, establish the city council as the primary policy-setting authority with respect to the city's police department. These statutes were not amended by Act 714 of 2021. On its face, Act 714 mandates that a first-class city's governing body establish a police department and provide it with the resources to protect citizens and their property. There is nothing on its face to indicate that the act amended any of the foregoing statutes.

In sum, then, a city council of a city of the first class has the authority to dictate or approve internal policies for the city's police department, as long as the policies are not contrary to state law. That authority is unaffected by Act 714 of 2021.

Sincerely,

LESLIE RUTLEDGE
Attorney General

Footnotes:

1. According to my information, the City of Lincoln does not have a civil service commission for its police department. I will address your question with that understanding. If a city has a civil service commission for its police department, the commission's rulemaking authority must be considered when addressing policy-making questions involving the city's police force. See Ark. Code Ann. § 14-51-301 (Supp. 2021); Op. Att'y Gen. 94-274.
2. Ark. Code Ann. § 14-52-101 (Supp. 2021).
3. Id. at § 14-52-101 (Repl. 2013).
4. Id. at § 14-52-201.
5. Id. at § 14-52-301 (Repl. 2013).
6. Ark. Code Ann. § 14-43-601(a)(1) (Repl. 2013).
7. Id. at § 14-43-602(a) (Repl. 2013). See also Ark. Code Ann. § 14-43-502(a) (Supp. 2021) (“The city council shall possess all the legislative powers granted by this subtitle and other corporate powers of the city not prohibited in it or by some ordinance of the city council....”); Ark. Code Ann. § 14-55-101 (Repl. 1998) (“Municipal corporations shall have the power to make and publish from time to time bylaws or ordinances, not inconsistent with the laws of the state, for carrying into effect or discharging the powers or duties conferred by the provisions of this subtitle.”).
8. Op. Att'y Gen. 2012-084. See also Op. Att'y Gen. 2000-283 (opining that matters of employee discipline in a city that does not have a civil service commission fall within the city council's general authority to direct municipal affairs).
9. The Arkansas Constitution expressly provides that “[n]o municipal corporation shall be authorized to pass any laws contrary to the general laws of the state.” Ark. Const. art. 12, § 4. This principle is reiterated in Ark. Code Ann. § 14-55-101, supra n.7 (providing that cities may enact ordinances that are “not inconsistent with the laws of the state....”).