Can a city add two extra members to a five-member utility commission by ordinance?
Plain-English summary
State Senator Kim Hammer asked two questions about a utility commission set up under A.C.A. § 14-201-105: must it have five commissioners, and can a city add two more by ordinance?
The AG answered yes to the first and no to the second.
A utility commission under § 14-201-101 et seq. is a specific creature of state statute that operates a first-class city's municipal waterworks system, electric light plant system, or both. The statute prescribes the structure:
- A.C.A. § 14-201-105(a)(1): the city council enacts an ordinance "creating a commission to be composed of five (5) citizens who are qualified electors of the county and not less than thirty-five (35) years of age...."
- A.C.A. § 14-201-105(a)(2): the ordinance "shall specifically state that the commission is created pursuant to this subchapter."
- A.C.A. § 14-201-105(b): commissioners are appointed by the mayor and confirmed by a two-thirds vote of the city council.
- A.C.A. § 14-201-105(d)(1): "There shall be five (5) positions on the commission."
The "five and no more than five" reading comes from § 14-201-105(d)(1)'s definitive language: "There shall be five (5) positions." Not "at least five." Not "five or more." The statutory composition is fixed.
The city's general legislative power does not override this. A city of the first class may legislate on "municipal affairs" under A.C.A. §§ 14-43-601, 14-43-602, and may enact ordinances that are "not inconsistent with the laws of the state" under A.C.A. § 14-55-101. But Ark. Const. art. 12, § 4 prevents local legislation from contradicting general state law. § 14-201-105's five-member rule is unambiguous; a local ordinance enlarging the commission to seven would be inconsistent and therefore beyond municipal authority.
The AG cited two contrasting statutes that DO allow flexibility: A.C.A. § 14-234-303(a) sets up "a waterworks commission to be composed of no less than three (3) nor more than seven (7) citizens," and A.C.A. § 14-141-105 authorizes a city with an auditorium commission to "increase the membership of the commission by two (2) members in addition to the [five] members thereof provided by § 14-141-104." The General Assembly knows how to write flexibility when it wants to. § 14-201-105's silence on enlargement, combined with the "five (5) positions" mandate, is meaningful.
The takeaway: a city that wants more than five commissioners on a utility commission must either (a) seek statutory amendment from the General Assembly, or (b) consider whether a different statutory framework (such as the waterworks commission under § 14-234-303(a)) better fits its needs.
What this means for you
City councils in cities of the first class
Three operational implications:
-
If you are setting up a new utility commission under § 14-201-105, your ordinance must specify five members. The required language: appointed by the mayor, confirmed by two-thirds of the council, qualified electors of the county, age 35 or older.
-
If you have an existing utility commission and you want a different structure (different size, different appointment process), the path is amendment of state law, not ordinance. Or consider migrating the function to a different statutory framework.
-
If you operate both waterworks and electric light plants, the same five-member commission can run both, or you can split into separate commissions. The statute does not require either approach.
City attorneys advising on utility commission setup
Walk through the statutory checklist:
- Population threshold (city of the first class)
- Statutory citation in the ordinance ("created pursuant to § 14-201-105 et seq.")
- Five members
- Mayor's appointment
- Two-thirds council confirmation
- Member qualifications (electors of the county, age 35+)
If the city wants flexibility on size, evaluate whether § 14-234-303 (waterworks commission, 3-7 members) is a viable alternative. The function differs (water-only, not water-and-electric), so the choice is structural.
Municipal utility commission members
If you serve on a five-member commission, that's the number permitted under state law. Proposals to expand the body should be evaluated against the statutory limit. If the council attempts to seat a sixth or seventh member by ordinance, the additional members may face challenge to their authority.
Municipal law practitioners
Use this opinion as a clean illustration of the limits of municipal authority over state-statute-created bodies. The municipal-affairs doctrine has constraints (Ark. Const. art. 12, § 4 plus A.C.A. § 14-55-101) that prevent local override of unambiguous state mandates.
For clients considering municipal commission structures generally, the lesson is to look at the specific statute. Some authorize a fixed number; some authorize a range; some authorize expansion by ordinance. The treatment varies.
State legislators considering municipal commission reform
If you want to give cities flexibility on utility commission size, the path is amendment of § 14-201-105. Possible drafting templates:
- Adopt the § 14-234-303(a) "no less than X nor more than Y" approach.
- Adopt the § 14-141-105 "increase by two by ordinance" approach.
- Authorize broader municipal flexibility with notice and hearing requirements.
The current rigid five-member rule is unusual; many similar municipal bodies have built-in flexibility.
Citizens and interested electors
If you are interested in serving on a city utility commission, the qualifications are: county elector, age 35+, mayoral appointment, two-thirds council confirmation. Vacancies are filled by the same process. The five-member rule means turnover creates real opportunities.
Common questions
Why does the statute fix the size at five?
The General Assembly's reasoning is not fully spelled out. The five-member design dates to the original utility commission framework. Five members is a common size for governance bodies (odd number prevents tie votes, manageable for deliberation). Other municipal bodies have different sizes for different reasons.
Can the city create a parallel advisory body?
A city could create an advisory board with as many members as it wants, but an advisory board is not the utility commission and would not have the commission's statutory authority. Be careful to keep advisory roles distinct from the commission's actual decision-making authority.
What is a "city of the first class"?
A.C.A. § 14-37-104 categorizes cities with population over 2,500 as cities of the first class. Smaller cities are second class or incorporated towns. § 14-201-105 applies only to cities of the first class.
What's the difference between a § 14-201-105 utility commission and a § 14-234-303 waterworks commission?
§ 14-201-105 covers waterworks and/or electric light plants jointly or separately, with a fixed five-member size. § 14-234-303 is a waterworks-only commission with a flexible 3-7 member size. The choice depends on what utilities the city operates and how much size flexibility it wants.
Can the mayor appoint, then unappoint, members?
Removal is a separate question not directly addressed in this opinion. The statute is silent on removal procedures. Local counsel should consult § 14-201-105 in detail and any case law on commission member removal.
Are there term-limit rules?
The statute may include term provisions; this opinion does not address them. Consult § 14-201-105 in full and the Arkansas Code's general provisions on commissioner terms.
Could the city sue to enlarge the commission?
A challenge to § 14-201-105 on home-rule grounds would face the constitutional principle that municipal legislation cannot contradict general state law. The challenge would be weak.
Background and statutory framework
Statutory framework:
- A.C.A. § 14-201-101 et seq.: utility commission framework for first-class cities.
- A.C.A. § 14-201-105(a)(1): five members, qualified electors, age 35+.
- A.C.A. § 14-201-105(a)(2): ordinance must specify creation under this subchapter.
- A.C.A. § 14-201-105(b): mayor's appointment, two-thirds council confirmation.
- A.C.A. § 14-201-105(d)(1): "five (5) positions on the commission."
Municipal authority framework:
- Ark. Const. art. 12, § 4: prevents local legislation contrary to general state laws.
- A.C.A. § 14-55-101: cities may enact ordinances "not inconsistent with the laws of the state."
- A.C.A. §§ 14-43-601, 14-43-602: municipal affairs authority.
Comparison statutes (with built-in flexibility):
- A.C.A. § 14-234-303(a): waterworks commission, "no less than three (3) nor more than seven (7) citizens."
- A.C.A. §§ 14-141-104, 14-141-105: auditorium commission, basic five members + ordinance authority to add two.
Citations
- A.C.A. § 14-201-101 et seq. (utility commission framework)
- A.C.A. § 14-201-105 (composition, appointment, confirmation)
- A.C.A. §§ 14-43-601, 14-43-602 (municipal affairs)
- A.C.A. § 14-55-101 (ordinances not inconsistent with state law)
- A.C.A. § 14-234-303(a) (waterworks commission flexibility)
- A.C.A. §§ 14-141-104, 14-141-105 (auditorium commission flexibility)
- Ark. Const. art. 12, § 4 (local law cannot contradict state law)
Source
Original opinion text
Opinion No. 2022-041
December 15, 2022
The Honorable Kim D. Hammer
State Senator
1201 Military Road PMB #285
Benton, AR 72015
Dear Senator Hammer:
This is in response to your request for an opinion concerning a "utility commission" under Ark. Code Ann. § 14-201-105. As background for your questions, you state:
Arkansas Code Annotated § 14-201-105 states that any city of the first class in which it is desired to establish such a utility commission, by majority vote of the city council, shall enact an ordinance creating a commission to be composed of five citizens who are qualified electors of the county and not less than 35 years of age. The commissioners shall be appointed by the mayor and confirmed by a two-thirds vote of the city council.
Your questions in this regard are as follows:
1) Does the utility commission have to be [composed] of five commissioners?
2) Can a city, by ordinance, add two additional members to the utility commission for a total of seven commissioners?
RESPONSE
I gather from your citation to Ark. Code Ann. § 14-201-105 that your questions involve a utility commission created under that Code section to operate a city's waterworks and/or electric light plant systems pursuant to Ark. Code Ann. § 14-201-101 et seq. (Repl. 1998 and Supp. 2021). With that understanding, the answer to your first question is "yes," such a commission must have five, and no more than five, commissioners. Accordingly, the answer to your second question is "no."
DISCUSSION
The statute you have asked about, Ark. Code Ann. § 14-201-105, is part of a body of law that authorizes the creation of a "utility commission" in cities of the first class to operate municipal waterworks systems or electric light plant systems, or both. The statute calls for the mayor's appointment of a five-member commission, with appointments to be confirmed by a two-thirds vote of the city council:
Any city of the first class in which it is desired to establish such a utility commission, by a majority vote of the city council, shall enact an ordinance creating a commission to be composed of five (5) citizens who are qualified electors of the county and not less than thirty-five (35) years of age....
The commissioners shall be appointed by the mayor and confirmed by a two-thirds vote of the city council.
The statute directs that the ordinance creating the utility commission "shall specifically state that the commission is created pursuant to this subchapter." It further mandates that "[t]here shall be five (5) positions on the commission."
A city is not authorized to alter the number of commissioners serving on a utility commission created pursuant to section 14-201-105. 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."
And section 14-201-105 unequivocally sets the number of utility commissioners at five. Therefore, I do not believe a city is authorized to increase the number of commissioners by ordinance.
Sincerely,
LESLIE RUTLEDGE
Attorney General