Do voters in Arkansas city-manager cities still have to approve compensation for the board of directors before the board can set its own salaries?

Plain-English summary

Representative Les Warren asked whether two statutes conflict on compensation for directors in an Arkansas city with the city-manager form of government. A.C.A. § 14-61-110 says city directors and mayors may not receive compensation for their services "unless authorized by the voters." If voters approve it, the board sets the compensation by ordinance. A later law, A.C.A. § 14-47-114(a), says a city-manager board "may provide by ordinance" for board-member compensation and does not repeat the voter-approval condition.

The AG found no irreconcilable conflict. The board's power to set compensation by ordinance operates after voters authorize compensation. Both statutes therefore have effect. Because the texts can be read together, the AG did not apply the rules for resolving conflicting general and specific statutes or for implied repeal. The later act's general-repealer clause did not remove the earlier voter-approval requirement.

What this means for you

City directors, mayors, and city attorneys

Before a city-manager board sets compensation under § 14-47-114(a), check whether voters authorized compensation as § 14-61-110 requires. The opinion treats voter authorization as the first step and a board ordinance setting compensation as the second. It does not prescribe an election procedure, decide whether any city's past authorization remains effective, or address a particular ordinance.

City residents

The voter-approval requirement discussed here comes from A.C.A. § 14-61-110. The AG does not describe it as a constitutional voter right or decide what legal challenge a resident could bring against a compensation ordinance. He concludes that the board may set compensation only after voter authorization.

Legislators and municipal staff

The AG reconciled the 1989 statute with a 1991 amendment that lets a board provide compensation by ordinance. He notes that before the amendment, § 14-47-114(a) had barred director compensation and likely conflicted with the 1989 statute. The current permission to set pay and the earlier voter condition can operate together.

Common questions

Can the board authorize its own compensation without a prior vote? Not under the AG's reading of these statutes. A.C.A. § 14-61-110 requires voters to authorize compensation first. The board then sets the compensation by ordinance.

Did the 1991 amendment repeal voter approval?
No. Although the 1991 act had a clause repealing laws in conflict with it, the AG says these two current provisions are not irreconcilable. The board's ordinance authority and prior voter authorization can both be given effect.

Does the opinion say how much the board can be paid?
No. It answers the sequence of authorization and ordinance setting. A.C.A. § 14-61-110 says the board sets compensation by ordinance "pursuant to the provisions of Arkansas Constitution Amendment 56," but the opinion does not set an amount.

Does this resolve the per-diem rule in § 14-47-114(b)?
No. The opinion notes that subsection in a footnote but addresses the apparent conflict between § 14-61-110 and subsection (a).

Legal basis in the opinion

The AG quotes the 1989 law's condition that directors and mayors may not "receiv[e] any compensation for [their] services unless authorized by the voters." He quotes the later law's permission for a city-manager board to "provide by ordinance for the compensation of board members." Reading them together, he says the board may do so "only if the voters have first authorized this compensation."

Source

• Official Arkansas Attorney General opinion search: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/ (Opinion No. 2024-058, July 30, 2024; official four-page PDF, including footnotes)

Original opinion text

Opinion No. 2024-058

July 30, 2024

The Honorable Les A. Warren
State Representative
Post Office Box 22900
Hot Springs, Arkansas 71903

Dear Representative Warren:

I am writing in response to your request for my opinion about how compensation may be set for city directors in a city-manager form of municipal government.

In 1989, the General Assembly enacted A.C.A. § 14-61-110, prohibiting city directors and mayors from “receiv[ing] any compensation for [their] services unless authorized by the voters.” If the voters approved compensation, the “board of directors, by ordinance, shall set such compensation.”1

But two years later, in 1991, the General Assembly amended another statute—A.C.A.
§ 14-47-114(a)—authorizing the “board of directors of any city with the city manager form of government [to] provide by ordinance for the compensation of board members.” Section 14-47-114 does not indicate that authorization by the voters is required before a compensation-setting ordinance may be passed. Further, the General Assembly expressly provided that “[a]ll laws and parts of laws in conflict with [§ 14-47-114(a)] are hereby repealed.”2

You ask whether an irreconcilable conflict exists between these two statutes.3

1
A.C.A. § 14-61-110.
2
Act 1012 of 1991.
3
In your opinion request, you ask three questions, which I have paraphrased: (1) “does Act 1012 of 1991 (A.C.A. § 14-47-114(a)) expressly repeal any provision of A.C.A. § 14-61-110 in conflict therewith?”; (2) “[i]f not expressly repealed by Section 4 of Act 1012 of 1991, has A.C.A. § 14-61-110 been repealed under the doctrine of ‘repeal by implication’”; and (3) “[h]ow can A.C.A. § 14-47-114(a) and A.C.A. § 14-61-110 be reconciled?” The Honorable Les A. Warren State Representative Opinion No. 2024-058 Page 2

RESPONSE

In my opinion, the two statutes do not irreconcilably conflict. While the “board of directors…may provide by ordinance for the compensation of board members,” the voters must first authorize this compensation before the board sets the compensation by ordinance. In other words, § 14-47-114 does not preclude voter approval.

DISCUSSION

1. A.C.A. § 14-61-110. Since 1989, this statute has prohibited city directors and mayors
   from “receiv[ing] any compensation for…services unless authorized by the voters of the city.”4 After voter confirmation, “the board of directors, by ordinance, shall set such compensation pursuant to the provisions of Arkansas Constitution Amendment 56.”5

2. A.C.A. § 14-47-114. Since 1991, § 14-47-114(a) has authorized the “board of directors
   of any city with the city manager form of government [to] provide by ordinance for the compensation of board members.”6 Before a 1991 amendment, this statute prohibited city directors from receiving “any compensation for his or her services,”7 which likely conflicted with § 14-61-110.

3. Statutory construction. Statutes that concern the same subject must be construed,
   interpreted, or read harmoniously, if possible.8 Before resorting to a conflict analysis, a court would first reconcile any seemingly conflicting statutory language without voiding or invaliding those statutes.9

   3.1 General versus specific. “A statute of a general nature does not repeal a more
   

   specific statute unless there is a plain, irreconcilable conflict between the two.”10 So neither statute typically repeals or nullifies the other, but the specific one typically becomes an

4
A.C.A. § 14-61-110.
5
Id.
6
Id. § 14-47-114(b) authorizes “Directors of a city having a population” between 4,000 and 4,500 “and located in a county having a population of” at least 100,000 to “receive a per diem to be fixed by ordinance of the board not to exceed one hundred dollars…for attending designated meetings of the board.” 7 Id. § 14-47-114(a) (amended 1991).
8
Thomas v. State, 349 Ark. 447, 454, 79 S.W.3d 347, 351 (2002).
9
Regardless of whether statutes are on the same subject, courts have a judicial duty to, where possible, harmonize all acts or statutes that appear to conflict with one another. See Slusser v. Farm Serv., Inc., 359 Ark. 392, 396, 198 S.W.3d 106, 109 (2004). Thus, the Arkansas Supreme Court takes “pains to harmonize statutes that are seemingly in conflict.” Harkuf v. Marony, 2022 Ark. 55, 4, 639 S.W.3d 872, 874–75. 10 Doe v. Baum, 348 Ark. 259, 274–75, 72 S.W.3d 476, 484 (2002).
The Honorable Les A. Warren
State Representative
Opinion No. 2024-058
Page 3

exception to the general one, “rather than rejection of the statute having broad application.”11 Only if the two statutes concerning the same subject are “irreconcilable”12 does the later statute control.13

3.2 Repeal by implication.14 A statute may be “repealed by implication” in two circumstances. First, if two statutes are in “irreconcilable conflict” with one another,15 “there is an implied repeal by the latter one, which governs.”16 Second, a statute can be repealed by implication if the “the General Assembly takes up the whole subject anew, covering the entire subject matter of the earlier statute and adding provisions clearly showing that it was intended as a substitute for the former provision.”17 But both methods of repealing by implication are “not favored” and “never allowed” unless “there is such an invincible repugnancy between the provisions that both cannot stand.”18 Otherwise, as discussed above, even statutes that appear to conflict must be read harmoniously, if possible.19

4. Application. Both A.C.A. § 14-61-110 and A.C.A. § 14-47-114(a) concern the same
   type of city government and subject matter: compensation of board of directors,20 cities of

11
Michael W. Mullane, Statutory Interpretation in Arkansas: How Arkansas Courts Interpret Statutes. A Rational Approach, 2005 Ark. L. Notes 73, 96 (2005). 12 Black’s Law Dictionary 993 (11th ed. 2019).
13
Uilkie v. State, 309 Ark. 48, 52–53, 827 S.W.2d 131, 133–34 (1992); see also Ark. Att’y Gen. Op. 82-048 (“Where two legislative acts are repugnant to, or in conflict with, each other the one last passed, being the latest expression of the legislative will,…govern[s], control[s] and prevail[s] so as to super[s]ede and impliedly repeal an earlier act to the extent of the repugnancy.”). 14 “[T]he treatment of a general repealer clause does not differ from the rules applicable to a repeal by implication.” McMickle v. Griffin, 369 Ark. 318, 324–25, 254 S.W.3d 729, 737 (2007). 15 Hurt-Hoover Invs., LLC v. Fulmer, 2014 Ark. 461, 6, 448 S.W.3d 696, 700.
16
Brock v. Townsell, 2009 Ark. 224, 16, 309 S.W.3d 179, 189.
17
Fulmer, 2014 Ark. at 6, 448 S.W.3d at 700.
18
Wright v. Centerpoint Energy Res. Corp., 372 Ark. 330, 333, 276 S.W.3d 253, 256 (2008). This “repugnancy…must be abundantly clear.” Id. 19 Id.
20
A.C.A. §§ 14-61-110, 14-47-114(a).
The Honorable Les A. Warren
State Representative
Opinion No. 2024-058
Page 4

the first class,21 and the city-manager or management form of municipal government.22 So the two statutes should be read harmoniously, if possible.

In my opinion, the two statutes can be read harmoniously. Reading § 14-47-114(a) and
§ 14-61-110 together: the “board of directors of any city with the city manager form of government may provide by ordinance for the compensation of board members” only if the voters have first authorized this compensation. Thus, the text of both can be given full meaning. Because the two statutes can be read together in harmony, one does not resort to a statutory conflict analysis like the canons of general versus specific statutes or repeal by implication.

Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General

21
See id. §§ 14-61-102 (applying to “all cities of the first class”), 14-47-101 (applying to “[a]ny city” that has “a population of two thousand five hundred (2,500) or more,” which is the population threshold for a city of the first class under §14-37-104). 22 See id. §§ 14-61-101 to -120 (“The City Manager Enabling Act of 1989”), 14-47-101 to -140 (providing cities of the first those requirements for the city manager form of municipal government).