In a city-administrator form of Arkansas government, can the mayor veto a motion that already failed?
Plain-English summary
This is a follow-up opinion. In Op. 2023-047, the AG had answered Representative Hope Duke that mayors in a city-administrator form of government cannot veto a board action that failed for lack of a majority vote. After that opinion was issued, someone advanced a more developed argument: A.C.A. § 14-48-111(b)(1) gives such mayors veto power over "all decisions made by the board." The argument went: when the board votes on a motion and the motion fails, the board has "decided" not to adopt the motion. Therefore the mayor can veto that decision and force the motion through.
The AG rejected this "failed-action argument" for four independent reasons.
1. The argument ignores when the board has actually made a decision. A.C.A. § 14-48-120(a)(2) requires "an affirmative vote of four (4) or more members" to constitute board action. If only three of seven board members vote yes, no decision has been made; the three voters made individual decisions, not a board decision. Robert's Rules of Order and Arkansas's general municipal-vote rules treat majority approval as the definition of a "decision," not the absence of one.
The AG's example: at a meeting where two of seven members are absent, a motion fails 3-2. Has the board "decided"? The two no votes can be said to have decided against, the three yes votes can be said to have decided for, but neither constitutes "a decision made by the board" because neither side hit the four-vote threshold.
2. The argument ignores what the board has decided. Even if a failure to pass somehow counted as a decision, the question is what the decision was. Under standard parliamentary procedure, a motion proposes that the board's decision be x; if it passes, the decision is x; if it fails, there is no decision. The "failed-action argument" treats failure as a decision for not-x, which would require cities to track all failed motions as binding "laws" enacted by minority votes. The AG calls this "chaotic and unworkable."
3. The argument violates statutory interpretation rules. Three canons:
- Supremacy of the text (Cherokee Nation Businesses (2021)): the statute's words mean what they say. The text says "decisions made by the board," not "outcomes of votes."
- Ordinary meaning (Parker v. State (2023)): "veto" means to prevent something from becoming law (American Heritage Dictionary, Black's Law Dictionary). Vetoing something that did not become law is not within the ordinary meaning of veto.
- Harmonious reading (Weiss v. Maples (2007)): § 14-48-120(e) and (g) describe how the mayor receives "ordinances, resolutions, and motions adopted by the board" for signature or veto. Adopted, not failed. The failed-action reading would conflict with this scheme.
4. The argument conflicts with the structure of city-administrator government. Among Arkansas's city-government forms, the city-administrator form gives the mayor the LEAST power over legislation. The mayor cannot vote on motions, resolutions, or ordinances at all (A.C.A. § 14-48-111(a)(3)). By contrast:
- Mayor-council mayors can vote to break a tie (§ 14-43-501(b)(1)(B)).
- City-manager mayors can vote in case of a tie (§ 14-47-140(a)(1)(A)(ii)(b)).
The failed-action argument would give the city-administrator mayor not just a vote, but enough effective votes to pass any motion, more legislative power than any other Arkansas mayor. The AG would expect any such "extraordinary power" to be spelled out plainly in statute. It is not.
The AG concluded the original answer (in Op. 2023-047) is correct: failed motions cannot be vetoed; only adopted decisions can.
What this means for you
Mayors in city-administrator form of government
Your veto power applies only to motions, resolutions, and ordinances the board has adopted. If a motion fails on the floor, you have no veto authority over it; the mayor's role in the city-administrator form does not include forcing a failed motion to pass.
The right way to influence policy is what the statutory framework intended: present items to the board (often through your administrator), advocate publicly, and use your office's persuasive role with directors. Direct override of a failed vote is not in your toolkit.
Cities considering or operating under the city-administrator form
This opinion confirms that the city-administrator form is the most constrained mayoral form in Arkansas. The mayor's role is largely ceremonial-plus-veto, not legislative. If you want a mayor with stronger legislative reach, the mayor-council form is the alternative under Arkansas law.
Board of directors members
Your majority vote is the operative legal standard for board action. A motion that fails to get four votes (in a seven-member board) has no legal effect, and the mayor cannot rescue it. Conduct meetings under that framework.
Municipal attorneys
When the mayor or a director asks whether the failed-action argument has any traction, this opinion is direct authority that it does not. Cite Op. 2023-047 (the original answer) plus this opinion (the developed reasoning). Both rely on the same statutory text and structure.
If a city is litigating a dispute about whether a mayor's "veto" of a failed motion is valid, the answer under this AG opinion is no. A court could disagree (an AG opinion is persuasive, not binding), but the analysis here is thorough.
Parliamentarians
The opinion is a useful illustration of how statutory text can interact with parliamentary procedure. The "decision" of a deliberative body is not the bare absence of a passed motion; it is what the body has affirmatively adopted. Robert's Rules and similar manuals reflect that consistently.
State legislators
If you want city-administrator mayors to have the kind of override power the failed-action argument imagined, statutory amendment would be required. The current text of § 14-48-111(b)(1) does not support that reading, and the opinion's interpretation forecloses it absent legislative change.
Common questions
My city operates under city-administrator form. The mayor sent the council a "veto" of a motion that failed. What's the legal effect?
None, under this AG opinion. A failed motion is not a "decision made by the board," and the veto power runs only to decisions. Treat the mayor's letter as informational, not as creating any legal obligation.
What if the mayor uses the failed-action veto and the council ignores it?
The council is acting consistently with the AG opinion. If the mayor sues to enforce the "veto," the suit is unlikely to succeed under this analysis.
What CAN the mayor in a city-administrator form do?
- Veto adopted motions, resolutions, and ordinances (subject to override under § 14-48-120).
- Recommend agenda items.
- Sign or refuse to sign adopted measures.
- Serve as ceremonial head of the city.
- Whatever the city's specific organizational documents add.
But the mayor cannot vote and cannot override a failed motion.
Does this opinion apply to mayor-council form mayors?
Not directly. Mayor-council mayors have a different statutory framework (§ 14-43-501(b)(1)(B)) and can vote in some circumstances. The failed-action argument is specifically about city-administrator mayors and would have similar problems for any other form.
Can the board override the mayor's veto on adopted motions?
Yes. Section 14-48-120 details the veto and override procedure. Vetoes can be overridden by a supermajority of the board.
The AG already answered this in Op. 2023-047. Why did this opinion come out?
The AG explained that someone made a more developed argument after the original opinion, and the AG wanted to address it head-on. This opinion is a reasoned augmentation, not a reversal.
Background and statutory framework
Arkansas has three primary forms of city government: mayor-council, city-manager, and city-administrator. The relevant statutes:
- Mayor-council: A.C.A. § 14-43-501(b)(1)(B). Mayor votes to establish a quorum and breaks ties on ordinances, bylaws, resolutions, orders, or motions.
- City-manager: A.C.A. § 14-47-140(a)(1)(A)(ii)(b). Mayor votes only to break ties; presence counts toward quorum.
- City-administrator: A.C.A. § 14-48-111(a)(3). Mayor "shall not have a vote on any matter coming before the board."
City-administrator board action requires a majority of the seven-member board, defined statutorily as four affirmative votes (§ 14-48-120(a)(2)).
The mayor's role in the legislation cycle: § 14-48-120(e) and (g) describe how "ordinances, resolutions, and motions adopted by the board" are presented to the mayor. The phrase "adopted by the board" is what makes the failed-action argument fail, because failed motions are not adopted.
The Arkansas Supreme Court's interpretive canons:
- Cherokee Nation Businesses, LLC v. Gulfside Casino P'ship, 2021 Ark. 183, 632 S.W.3d 284 (2021): supremacy of text canon. (Quotes Scalia and Garner's Reading Law.)
- Parker v. State, 2023 Ark. 41, 660 S.W.3d 815 (2023): ordinary-meaning canon.
- Weiss v. Maples, 369 Ark. 282, 253 S.W.3d 907 (2007): harmonious-reading canon.
All Arkansas Supreme Court (Ark. + S.W.3d).
The dictionary definitions of "veto" the AG cites: American Heritage Dictionary 1928 (5th ed. 2011) ("To prevent or delay (a legislative bill) from becoming law"); Black's Law Dictionary 1875 (11th ed. 2019) ("[a] power of one governmental branch to prohibit an action by another branch; esp., a chief executive's refusal to sign into law a bill passed by the legislature"). Both definitions point to preventing something from becoming law, which a failed motion is not.
Citations
- A.C.A. § 14-43-501(b)(1)(B) (mayor-council mayor's tie-breaking vote)
- A.C.A. § 14-47-140(a)(1)(A)(ii)(b) (city-manager mayor's tie-breaking vote)
- A.C.A. § 14-48-111(a)(3) (city-administrator mayor cannot vote)
- A.C.A. § 14-48-111(b)(1) (city-administrator mayor's veto over board decisions)
- A.C.A. § 14-48-120 (veto procedures)
- A.C.A. § 14-48-120(a)(2) (four-vote majority)
- A.C.A. § 14-48-120(e), (e)(1) (mayor's role with adopted measures)
- A.C.A. § 14-48-120(g) (presentment for signature or veto)
- A.C.A. § 14-55-203(b) (general majority-vote rule)
- Cherokee Nation Businesses, LLC v. Gulfside Casino P'ship, 2021 Ark. 183, 12, 632 S.W.3d 284, 291 (2021)
- Parker v. State, 2023 Ark. 41, 16, 660 S.W.3d 815, 826 (2023)
- Weiss v. Maples, 369 Ark. 282, 286–87, 253 S.W.3d 907, 912 (2007)
- Robert's Rules of Order, 1–2 (11th ed.)
- The American Heritage Dictionary of the English Language 1928 (5th ed. 2011)
- Black's Law Dictionary 1875 (11th ed. 2019)
- Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, 56 (2012)
- Ark. Att'y Gen. Op. 2023-047 (original answer)
Source
Original opinion text
Opinion No. 2023-090
September 29, 2023
The Honorable Hope Duke
State Representative
18172 West Highway 72
Gravette, Arkansas 72736
Dear Representative Duke:
You recently requested my opinion on whether a mayor in a city administrator form of
government may veto a motion that failed for lack of a majority vote and thereby "reverse
and overturn the board of directors' failed action." In Opinion No. 2023-047, I responded
to your request saying that mayors lack the authority to veto a failed action. Since that
opinion was issued, I have become aware of additional information that was part of the
background for your request, and I write this opinion as a follow up to address that
additional information and provide further reasoning in support of my earlier conclusion.
I now understand that your question was prompted, at least in part, by an argument that the
General Assembly has given the mayor in a city administrator form of government an
extraordinary and unique veto power. Under A.C.A. § 14-48-111(b)(1), such mayors "have
the power of veto over all decisions made by the board [of directors] except matters relative
to city personnel." Someone has claimed that, by using the phrase "all decisions," the
legislature has authorized mayors to veto motions that fail to pass because that failure
reflects a "decision" of the city's board of directors. I will refer to this argument as the
"failed-action argument."
I write here to address this novel legal argument, which is mistaken for at least four
independent reasons: it (1) ignores the rules that tell us whether the board has made a
decision; (2) ignores the rules that tell us what decision the board has made; (3) conflicts
with the rules that govern how to interpret statutes; and (4) conflicts with the function a
mayor has in a city administrator form of government.
1. The failed-action argument ignores the rules that govern whether a deliberative
body has made a decision. This argument misunderstands what it means for a deliberative
body to make "decisions." Under A.C.A. § 14-48-111(b)(1), the mayor's veto power
extends to "all decisions made by the board…." Under A.C.A. § 14-48-120(a)(2), any
action, any decision of the board, requires "an affirmative vote of four (4) or more
members…." In order for the board to make any kind of decision that could be subject to
a veto, that decision would require "an affirmative vote" of at least four board members.
As Robert's Rules makes clear, the requirement of a majority vote is standard
parliamentary procedure: "In any decision made [by a deliberative assembly], the opinion
of each member present has equal weight as expressed by vote, through which the voting
member joins in assuming direct personal responsibility for the decision, should his or her
vote be on the prevailing side." This is also the standard practice in all forms of city
governance in Arkansas.
This rule is necessary because a motion, resolution, or ordinance might fail for many
different reasons, some of which do not reflect the will of the board at all. Consider this
example. Suppose a board meeting has been called, but two of the seven board members
are absent. At the meeting, a motion is made and seconded, but it fails to pass because it
receives only three votes in favor and two against. What "decision" has the board made?
While the two people who voted against can be said to have "decided" against the motion,
their decisions can hardly be said to be a "decision made by the board." The vote against
the motion is their individual decision. The same goes for the three who voted in favor of
the motion. The board cannot be said to "decide" anything unless at least four board
members vote in favor of a motion.
But the failed-action argument ignores these facts and, instead, shifts the focus from the
statutory majority-vote requirement to the opinions of a minority of board members. This
improper focus is contrary to general parliamentary procedure, and directly contrary both
to § 14-48-111(b)(1)'s focus on "decisions made by the board" and to § 14-48-120(a)(2)'s
majority-vote requirement.
2. The failed-action argument ignores the rules that govern what the board has
decided. In addition to ignoring the rules that govern whether the board has made a
decision, the failed-action argument also ignores the rules that govern what that decision
is. Nearly every deliberative body uses some form of parliamentary procedure to (1)
conduct its meetings, (2) propose items for consideration and decision, and (3) determine
which items are appropriate to vote on at any given time. To achieve these ends, many
deliberative bodies adopt some form of Robert's Rules of Order. Under Robert's Rules,
and nearly any bylaws or policies that adopt similar rules, deliberative bodies use motions
to arrive at decisions. The motion process puts something before the deliberative body,
i.e., a motion, resolution, or ordinance, to discuss and decide. If the board decides to adopt
the motion, resolution, or ordinance, then its contents reflect the board's decision. If the
motion, resolution, or ordinance proposes that the board's decision be x, and it passes, then
the board's decision is x.
But the failed-action argument ignores this in favor of a chaotic and unworkable standard.
Under that argument, if the motion, resolution, or ordinance proposed that the board's
decision be x, and it failed for lack of a majority vote, then the board's "decision" is not-x.
When followed to its logical conclusion, this result requires the city to carefully track and
record all failed motions, resolutions, and ordinances because their contradictories would
now be just as binding as if they had received a majority vote. And every such "law" would
have been "enacted" by only a minority of the board. This chaotic and unworkable scenario
is the direct result of the failed-action argument ignoring the rules governing how one
identifies what the board has decided.
3. The failed-action argument conflicts with the rules that govern the interpretation
of statutes. The failed-action argument conflicts with three foundational rules that govern
how statutes are read. One such rule is the "supremacy of the text" canon, which states:
"The words of a governing text are of paramount concern, and what they convey, in their
context, is what the text means." When carefully studying a statute's text, the
ordinary-meaning canon requires one to give words "their ordinary and usually accepted
meaning in common language." And under the harmonious-reading canon, when two or
more statutes regulate the same subject matter, one is required to read those statutes
harmoniously if their texts allow it.
The failed-action argument conflicts with these standards.
First, the argument mistakenly gives the word "veto" a meaning that is beyond its ordinary
and accepted meaning. Under § 14-48-111(b)(1), the mayor has "the power of veto over
all decisions made by the board." (Emphasis added.) The use of the definite article here
indicates that the statute is using the word "veto" in its ordinary way. When used in
common parlance as a verb, as it is in § 14-48-111(b)(1), "veto" means "[t]o prevent or
delay (a legislative bill) from becoming law." The legal meaning of "veto" is no different:
"[Latin: 'I forbid']…[a] power of one governmental branch to prohibit an action by another
branch; esp., a chief executive's refusal to sign into law a bill passed by the legislature."
Both definitions indicate that the veto is a power to stop something from becoming law.
The failed-action argument, however, conflicts with this common meaning of "veto" by
claiming that the mayor can veto a motion that will never become law. This interpretation
of veto is inconsistent with the ordinary-meaning canon.
Second, the failed-action argument gives the word "decision" a meaning that violates the
requirements that we (1) read words in context and (2) read statutes on the same subject
matter harmoniously. As used in context, the "decisions" that may be vetoed are decisions
"of the board." As noted above in sections 1 and 2, this phrase necessitates that the
decisions represent the opinions of a majority on the board, not a minority. Since the
failed-action argument allows a minority opinion of the board to be considered a "decision"
of the board, the argument takes the term "decisions" out of context and violates the rules
of interpretation.
That interpretation of "decision" also violates the harmonious-reading canon because it
fails to take account of A.C.A. § 14-48-120, which also addresses the veto. Section
14-48-120 explains the mayor's involvement in the board's decision making. Under
§ 14-48-120(e), the mayor has no role in the board's legislation until the board has
"adopted" something. Section 14-48-120(g) details how "ordinances, resolutions, and
motions adopted by the board" are presented to the mayor for signature or veto.
(Emphasis added.) There is no provision anywhere in this statute that contemplates the
board arriving at a decision due to a failed vote. The failed-action argument presents a view
of board decision making that conflicts with the procedures established elsewhere in
§ 14-48-120. Therefore, the argument is inconsistent with the harmonious-reading canon.
4. The failed-action argument conflicts with mayoral power in a city administrator
form of government. The foregoing three sets of arguments are bolstered by the mayor's
role in a city administrator form of government. Among all the forms of city government
available in Arkansas, the city administrator form vests the mayor with the least power
over legislation. This is because, unlike the mayor in a city council form of government or
a city manager form of government, the mayor in a city administrator form of government
cannot vote on motions, resolutions, or ordinances. But the failed-action argument reads
the veto power as if it gave the mayor not just one vote, but a sufficient number of votes to
cause any motion to pass. This gives the mayor in a city administrator form of government
more power than any mayor in any other form of government. This type of action is so
unprecedented, one would expect the statute to clearly spell out the extraordinary power.
But it does not. The failed-action argument is inconsistent with the entire structure of a city
administrator form of government.
5. Conclusion. At its core the failed-action argument errs by taking the phrase "all
decisions" out of context and giving the term "veto" a meaning that I have not been able to
find anywhere in American law. While I continue to stand by the reasoning and conclusions
in my prior opinion, I wanted to augment it based on new information.
Deputy Attorney General Ryan Owsley prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General