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
State Representative Les Warren asked whether two Arkansas statutes are in conflict on city-director compensation:
- 1989 statute, A.C.A. § 14-61-110: city directors and mayors cannot "receiv[e] any compensation for [their] services unless authorized by the voters." If voters approve, the board sets the amount by ordinance.
- 1991 amendment, A.C.A. § 14-47-114(a): the "board of directors of any city with the city manager form of government may provide by ordinance for the compensation of board members." No mention of voter approval. The 1991 act also included a general repealer for "[a]ll laws and parts of laws in conflict with [§ 14-47-114(a)]."
Attorney General Tim Griffin concluded the two statutes can be read harmoniously and so do not conflict. The 1991 statute permits the board to set compensation by ordinance, but only after voters first authorize compensation under the 1989 statute. Read together, the 1991 amendment did not silently abolish voter approval; it simply moved the second-step ordinance authority into the city-manager-government chapter of the code.
Because the statutes can be reconciled, no conflict analysis is needed. The general-versus-specific canon and repeal-by-implication doctrine are not triggered.
What this means for you
If you are a city attorney advising a city-manager-form city
Two-step process. Step one: get voters to authorize compensation, ordinarily through a referendum or initiated measure under Amendment 56 of the Arkansas Constitution. Step two: pass the ordinance setting the actual amount. Without step one, the ordinance is invalid no matter how thorough the procedure.
If your city has been compensating board members for years without a clear voter authorization in the record, this opinion is a flag. Find the voter-approval record. If it does not exist, the board's compensation may be vulnerable to challenge. Get it cleaned up with a referendum.
If you are a city director, mayor, or board member
You cannot vote yourselves a salary on your own. Your municipality has to take it to the voters first. After a yes vote, your board can pass an ordinance specifying the actual figure. The voter-approval step is not optional.
If you are a city resident or activist
You have a constitutionally protected role in approving how much your city's directors and mayor get paid. If your council passes a compensation ordinance without a prior voter authorization, you have grounds to challenge it under § 14-61-110.
If you are a state legislator considering changes
If the legislature wanted to give city-manager cities the same flexibility that other municipal forms have (board-set compensation without voter referendum), it would need to do so explicitly. The 1991 general-repealer clause was not enough. Drafting a clean repeal of § 14-61-110 or a clear "notwithstanding" provision in § 14-47-114 would be the way.
If you are studying statutory construction
This opinion is a clean illustration of how Arkansas applies the harmony principle. The Arkansas Supreme Court in Slusser v. Farm Service and Harkuf v. Marony directs courts to "tak[e] pains" to harmonize statutes that appear to conflict. The general-repealer clause does not change that analysis. McMickle v. Griffin says general-repealer treatment "does not differ from the rules applicable to a repeal by implication," which means courts must find an "invincible repugnancy" before treating an earlier statute as repealed.
Common questions
Q: Can my city's board of directors give itself a raise without a vote of the people?
A: No, not in a city with the city-manager form of government. Section 14-61-110 requires voter authorization for any compensation, and § 14-47-114(a) only authorizes the board to set the amount by ordinance after voters say yes.
Q: What if my city has been paying its directors for years without a clear voter approval?
A: Find the original voter-approval record. If voters approved compensation in the past, that approval likely still controls (subject to any caps or sunset clauses they imposed). If there is no record, the city should get one through a referendum.
Q: Can voters set the actual dollar amount, or do they just authorize "compensation in some amount"?
A: Voter approval can be structured either way. The statute requires authorization but does not require voters to set the figure. The board sets the figure by ordinance "pursuant to the provisions of Arkansas Constitution Amendment 56." Many cities ask voters to approve compensation in general and let the ordinance specify the amount.
Q: Does this apply to city forms other than city-manager?
A: Section 14-47-114 applies specifically to cities with the city-manager form of government. Other forms (mayor-aldermanic, city-administrator, etc.) have their own compensation statutes with their own rules.
Q: What about a per-diem allowance under § 14-47-114(b)?
A: For cities with populations between 4,000 and 4,500 located in counties with at least 100,000 people, § 14-47-114(b) authorizes a per-diem allowance not exceeding $100 per board meeting. The opinion does not address whether that per-diem authority is independent of voter approval; the question only addressed the conflict between subsection (a) and § 14-61-110.
Q: Was the 1991 general-repealer clause meaningful at all?
A: Yes, but only for actual conflicts. Before 1991, the prior version of § 14-47-114 prohibited city directors from receiving any compensation, which directly conflicted with § 14-61-110. The 1991 amendment changed § 14-47-114 to permit board-set compensation by ordinance, eliminating that prior conflict. The general-repealer clause cleared away the older prohibition. The voter-approval requirement in § 14-61-110 was not in conflict with the new § 14-47-114 (the two can be read together) and so was not affected.
Background and statutory framework
A.C.A. § 14-61-110 sits in the City Manager Enabling Act of 1989 (A.C.A. §§ 14-61-101 to -120). It applies to "cities of the first class," meaning cities with populations of 2,500 or more under § 14-37-104. The provision implements the general policy that municipal compensation in Arkansas is subject to voter control under Amendment 56 of the Arkansas Constitution.
A.C.A. § 14-47-114 sits in a different chapter (cities of the first class with the city-manager form of government, A.C.A. §§ 14-47-101 to -140). The 1991 amendment to subsection (a) was Act 1012 of 1991. Before 1991, subsection (a) actually prohibited city directors from receiving any compensation, which created a conflict with § 14-61-110's voter-approved compensation. The 1991 amendment replaced the prohibition with permissive ordinance authority and tacked on a general-repealer clause.
The AG's harmonization analysis follows long-settled Arkansas Supreme Court doctrine:
- Harmonize first. Courts have a "judicial duty to, where possible, harmonize all acts or statutes that appear to conflict with one another." Slusser v. Farm Service, Inc., 359 Ark. 392 (2004); Harkuf v. Marony, 2022 Ark. 55.
- Same-subject statutes go together. Statutes on the same subject are construed together. Thomas v. State, 349 Ark. 447 (2002).
- Specific over general. "A statute of a general nature does not repeal a more specific statute unless there is a plain, irreconcilable conflict between the two." Doe v. Baum, 348 Ark. 259 (2002).
- Repeal by implication is disfavored. Repeal by implication is "never allowed" unless "there is such an invincible repugnancy between the provisions that both cannot stand." Wright v. Centerpoint Energy Resources Corp., 372 Ark. 330 (2008). The repugnancy must be "abundantly clear."
- General-repealer clauses follow the implication rule. General-repealer clauses are treated the same as repeal by implication. McMickle v. Griffin, 369 Ark. 318 (2007).
Applying this framework, the AG concluded that § 14-47-114(a) (board may set compensation by ordinance) and § 14-61-110 (voter approval first) are not in irreconcilable conflict. Reading them together: the board "may provide by ordinance for the compensation of board members" only if voters have first authorized that compensation. Each statute keeps its full meaning.
Citations and references
Statutes:
- A.C.A. § 14-61-110 (compensation requires voter authorization)
- A.C.A. § 14-47-114(a) (board may set compensation by ordinance)
- A.C.A. § 14-47-114(b) (per diem allowance for certain populations)
- A.C.A. §§ 14-61-101 to -120 (City Manager Enabling Act of 1989)
- A.C.A. §§ 14-47-101 to -140 (city manager form of municipal government)
- Arkansas Constitution Amendment 56 (compensation of municipal officers)
- Act 1012 of 1991 (general repealer)
Cases:
- Slusser v. Farm Service, Inc., 359 Ark. 392, 198 S.W.3d 106 (Ark. 2004) (harmonize statutes that appear to conflict)
- Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (Ark. 2002) (statutes on same subject construed together)
- Doe v. Baum, 348 Ark. 259, 72 S.W.3d 476 (Ark. 2002) (general statute does not repeal specific statute absent plain conflict)
- Wright v. Centerpoint Energy Resources Corp., 372 Ark. 330, 276 S.W.3d 253 (Ark. 2008) (invincible repugnancy required for implied repeal)
- McMickle v. Griffin, 369 Ark. 318, 254 S.W.3d 729 (Ark. 2007) (general repealer clauses follow implication rules)
- Harkuf v. Marony, 2022 Ark. 55, 639 S.W.3d 872 (court takes pains to harmonize statutes)
- Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179 (latter governs in irreconcilable conflict)
- Hurt-Hoover Investments, LLC v. Fulmer, 2014 Ark. 461, 448 S.W.3d 696 (two methods of repeal by implication)
Source
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."
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."
You ask whether an irreconcilable conflict exists between these two statutes.
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." After voter confirmation, "the board of directors, by ordinance, shall set such compensation pursuant to the provisions of Arkansas Constitution Amendment 56."
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." Before a 1991 amendment, this statute prohibited city directors from receiving "any compensation for his or her services," 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. Before resorting to a conflict analysis, a court would first reconcile any seemingly conflicting statutory language without voiding or invaliding those statutes.
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." So neither statute typically repeals or nullifies the other, but the specific one typically becomes an exception to the general one, "rather than rejection of the statute having broad application." Only if the two statutes concerning the same subject are "irreconcilable" does the later statute control.
3.2 Repeal by implication. A statute may be "repealed by implication" in two circumstances. First, if two statutes are in "irreconcilable conflict" with one another, "there is an implied repeal by the latter one, which governs." Second, a statute can be repealed by implication if "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." 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." Otherwise, as discussed above, even statutes that appear to conflict must be read harmoniously, if possible.
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, cities of the first class, and the city-manager or management form of municipal government. 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