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.

The opinion concerns a commission created under Ark. Code Ann. § 14-201-105 to operate a first-class city's waterworks system, electric light plant system, or both. That section calls for five commissioners appointed by the mayor and confirmed by a two-thirds vote of the city council. It also says, "There shall be five (5) positions on the commission." The AG read this as requiring five, and no more than five, commissioners.

The AG acknowledged that a city may legislate on municipal affairs, but cited the Arkansas Constitution's bar on local legislation contrary to general state law. Because § 14-201-105 unequivocally sets the number at five, the AG concluded that the city cannot increase it by ordinance. A footnote compares other statutes that expressly allow a range of three to seven waterworks commissioners or an increase of two auditorium commissioners. The opinion does not decide whether either kind of commission is an alternative for this city's utility system.

What this means for you

First-class city councils and city attorneys

For a utility commission created under § 14-201-105, the opinion reads the five-position requirement as fixed. The cited statute calls for an ordinance creating the commission, mayoral appointment, and confirmation by a two-thirds vote of the council. The ordinance must state that the commission is created under that subchapter. The AG concluded that an ordinance adding two positions would conflict with the state statute.

Utility commissioners and prospective members

The opinion says this commission has five positions. It quotes the statute's qualifications: commissioners must be county electors and at least 35 years old. It does not address terms, vacancies, removal, or the status of anyone appointed to an extra position.

Common questions

Can a first-class city expand this utility commission from five members to seven?
No. The AG concluded that § 14-201-105 requires five commissioners and does not authorize the city to add two by ordinance.

Does the five-member answer apply to every kind of city commission?
The opinion's answer is limited to a utility commission created under § 14-201-105. Its final footnote points to separate waterworks and auditorium commission statutes with different membership language.

Who appoints and confirms the five utility commissioners?
The opinion quotes § 14-201-105: the mayor appoints them, and a two-thirds vote of the city council confirms them.

Background and statutory framework

The opinion relies on § 14-201-105's direction that there be five positions on a commission created under that section. It also cites Ark. Const. art. 12, § 4 and Ark. Code Ann. § 14-55-101 for the limit on local ordinances contrary to state law. Footnote 7 compares § 14-201-105 with two statutes that expressly allow different membership numbers: § 14-234-303(a) for a waterworks commission and § 14-141-105 for an auditorium commission.

Citations

• Ark. Code Ann. § 14-201-101 et seq. (utility commission framework)
• Ark. Code Ann. § 14-201-105 (composition, appointment, confirmation)
• Ark. Code Ann. §§ 14-43-601, -602 (municipal affairs)
• Ark. Code Ann. § 14-55-101 (ordinances not inconsistent with state law)
• Ark. Code Ann. §§ 14-234-303(a) (waterworks commission membership range, cited in footnote 7)
• Ark. Code Ann. § 14-141-105 (auditorium commission membership increase, cited in footnote 7)
• Ark. Const. art. 12, § 4 (local law cannot contradict state law)

Source

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

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

1 Ark. Code Ann. § 14-201-105(a)(1) (Supp. 2021).

2 Id. at § 14-201-105(a)(1) and (b).

3 Id. at § 14-201-105(a)(2).

4 Id. at § 14-201-105(d)(1).

5 Ark. Code Ann. §§ 14-43-601, -602 (Repl. 2013).

6 Ark. Const. art. 12, § 4. This principle is reiterated in Ark. Code Ann. § 14-55-101 (Repl. 1998) (stating that cities may enact ordinances that are “not inconsistent with the laws of the state....”).

7 Compare Ark. Code Ann. § 14-201-105 with Ark. Code Ann. §§ 14-234-303(a) (Supp. 2021) (providing for “a waterworks commission to be composed of no less than three (3) nor more than seven (7) citizens....”) and 14-141-105 (Repl. 1998) (authorizing 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....”).