Can an Arkansas city council member legally attend meetings and vote remotely (Zoom or phone) when the Governor hasn't declared an emergency, and can the city pass its own ordinance authorizing that?

Subject

Whether Arkansas city council members can attend and vote at public meetings electronically without a Governor-declared emergency, and whether a city can pass its own ordinance authorizing and capping remote attendance, all as of April 2025 (before Act 505 of 2025 takes effect).

Plain-English summary

Senator Clint Penzo asked the AG three questions about electronic city council meetings. The opinion answers them as of April 14, 2025, and warns that Act 505 of 2025 (then signed but not yet effective) will rewrite the analysis once it takes effect. The Act expands the FOIA's definition of "public meeting" in A.C.A. § 25-19-103(6) to include any "formal gathering together, in a special or regular gathering, of a governing body, whether in person or remotely" of certain public entities. The opinion analyzes the law then in effect; it does not decide the effect of Act 505 after it becomes effective.

Question 1: Without a declared emergency, can council members attend electronically and vote?

The AG says "possibly" because two canons of statutory construction point in opposite directions.

Before 2020, the FOIA did not address whether public meetings had to be in-person. The Arkansas Supreme Court (in Rehab Hosp. Servs. Corp. v. Delta-Hills Health Sys. Agency, Inc., 285 Ark. 397) had held that telephone-poll meetings could qualify as public meetings if conducted with proper notice and public access. So the law allowed electronic meetings before COVID, with three FOIA procedural requirements: sufficient notice, public ability to hear or see the meeting, and public ability to hear or see how each member voted.

Act 2 of 2020 (during the COVID emergency) and Act 56 of 2021 (which made Act 2's framework permanent) added subsection (e) to A.C.A. § 25-19-106. Subsection (e) explicitly authorizes electronic public meetings when the Governor declares a disaster emergency, and requires additional notice (the method by which the public can attend electronically).

Two canons collide:

• Negative-implication canon. Saying "if the Governor declares an emergency, a city may hold an electronic public meeting" arguably implies that without an emergency, electronic meetings are not authorized.
• Presumption against implied repeal. The Court's pre-2020 interpretation of A.C.A. § 25-19-106 (electronic meetings allowed with proper FOIA procedures) became part of the statute itself. The General Assembly is presumed to know that interpretation. To repeal it by implication, there must be "invincible repugnancy" between the new and old provisions; if the two can be read harmoniously, they should be.

The AG concluded that the implied-repeal canon is "slightly more persuasive" because Acts 2 of 2020 and 56 of 2021 added subsection (e) without amending or removing the rest of § 25-19-106. The pre-2020 rule (electronic meetings allowed if FOIA procedures are followed) coexists with subsection (e) (electronic meetings during a Governor-declared emergency get additional notice and electronic-attendance requirements). Read this way, both provisions have effect.

The AG said the reading that permits electronic meetings without an emergency may be “slightly more persuasive.” His brief answer was still “Possibly,” because the competing canons made it difficult to predict a court ruling. He cautioned that Act 505 would supersede this analysis once effective.

Question 2: Can a city pass an ordinance authorizing electronic attendance?

Yes. Public meetings are explicitly a "state affair" under A.C.A. § 14-43-601(a)(1)(A), not a "municipal affair." But § 14-43-601(a)(2)(B) lets cities legislate on state affairs "if not in conflict with state law." A.C.A. § 14-43-501(a)(2)(C)(iii) gives city governing bodies authority to determine the rules of their proceedings, including how meetings are conducted.

The AG also walks through the three preemption analyses (express preemption, field preemption, conflict preemption) and concludes that neither the FOIA generally nor § 25-19-106(e) specifically preempts cities from enacting ordinances allowing electronic attendance, so long as the ordinance does not conflict with FOIA's open-meeting procedural requirements.

Question 3: Can the city cap how often a council member can use remote attendance?

Yes. Same legal authority as Question 2. The state has not preempted municipal ordinances on this topic, so cities can set their own caps (one remote attendance per quarter, two per year, etc.) at their discretion.

What this means for you

If you serve on or advise a city council

Treat the April 2025 opinion as an uncertain answer to whether a member may attend and vote electronically without a Governor-declared emergency. The AG thought the interpretation permitting that practice might be slightly stronger, but expressly could not predict a court ruling. His answer about city ordinance authority was firmer: a city could authorize electronic meetings and limit remote attendance if its ordinance complied with FOIA's open-meeting requirements.

Check the currently effective statute before setting a meeting procedure. The AG said Act 505 of 2025 would substantively change the facts and analysis after it took effect, and this opinion did not analyze the resulting rule.

If you draft a city ordinance

The AG answered that, under the law he analyzed, cities could legislate on electronic city meetings so long as the ordinance did not conflict with FOIA requirements. He also said cities could limit the number of times a council member uses remote attendance. These answers do not turn his uncertain answer to Question 1 into a court ruling.

If you give public meeting notice

The opinion describes notice, an opportunity for the public to hear or see the meeting, and an opportunity to hear or see each member's vote as the ordinary open-meeting requirements under the law it analyzed. It distinguishes the extra requirement during a Governor-declared emergency to announce the method for electronic public attendance. Review the currently effective FOIA text before issuing notice.

Common questions

Did the AG say a council member definitely could vote remotely without an emergency?

No. His brief response was “Possibly.” He found the reading that allowed electronic meetings “slightly more persuasive,” but said it was difficult to know how a court would rule.

Could a city pass an ordinance authorizing electronic attendance?

Under the law considered in the opinion, yes, if the ordinance complied with FOIA's open-meeting requirements. The AG separately said a city could limit the number of times a council member attended remotely.

Did Act 505 settle the no-emergency question in favor of remote attendance?

The AG did not say that. He quoted Act 505's revised definition of “public meeting,” including certain remote gatherings, and said the Act would “substantively change both the facts presented and the analysis contained in this opinion” once effective. He did not decide the legal answer under the amended law.

What notice and access rules did the opinion discuss?

For the law then in effect, it described sufficient notice, public access to hear or see the meeting, and public access to hear or see how each member voted. It said an electronic meeting during a Governor-declared emergency required additional notice of the method for electronic public attendance and an electronic way for the public to attend.

Does the city-ordinance answer eliminate uncertainty about attendance without an emergency?

No. The AG's answers address different questions. He answered “Possibly” on attendance and voting without an emergency and “Yes” on city authority to enact a compliant ordinance under the law then in effect.

Background and statutory framework

A.C.A. § 25-19-106(a) is the open-meeting rule: governing bodies of municipalities, counties, townships, boards, bureaus, commissions, and state organizations must hold all meetings in public except as otherwise specifically provided by law. The phrase "governing body" means a body with decision-making authority (Ark. Att'y Gen. Ops. 2014-124, 2011-062, 2006-059, 2003-170, 99-407).

Before 2020, § 25-19-106 did not address whether meetings could be held electronically. The Arkansas Supreme Court filled the gap in Rehab Hosp. Servs. Corp. v. Delta-Hills Health Sys. Agency, Inc., 285 Ark. 397, 687 S.W.2d 840 (1985), holding that telephone-conducted meetings can be acceptable open meetings if proper notice is given and the telephones are available to the public and press. Depoyster v. Cole, 298 Ark. 203, 766 S.W.2d 606 (1989), added the requirement that the public must be able to see how each member voted (the case was overruled on other grounds by Harris v. City of Fort Smith, 366 Ark. 277, 234 S.W.3d 875 (2006), but its electronic-meeting holding survived).

Act 2 of 2020 (a fiscal-session enactment) added a temporary subsection (e) authorizing electronic meetings during a Governor-declared emergency. The act expired December 31, 2020. Act 56 of 2021 made the framework permanent.

The presumption-against-implied-repeal canon comes from Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179 ("a repeal by implication is not favored and is never allowed except when there is such an invincible repugnancy between the provisions that both cannot stand"), and Wright v. Centerpoint Energy Res. Corp., 372 Ark. 330, 276 S.W.3d 253 (2008) ("repugnancy ... must be abundantly clear"). The harmonization principle is from Slusser v. Farm Serv., Inc., 359 Ark. 392, 198 S.W.3d 106 (2004), and Harkuf v. Marony, 2022 Ark. 55, 639 S.W.3d 872. The doctrine of legislative ratification of judicial interpretation is from Harris v. Crawford Cnty. Bd. of Election Comm'rs, 2022 Ark. 160, 651 S.W.3d 703 (the Court's interpretation of a statute "subsequently becomes a part of the statute itself"), and Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002).

For municipal authority and preemption: Ark. Const. art. 12, § 4 is cited in the opinion when describing municipalities as creatures of the legislature. A.C.A. § 14-43-602(a) authorizes cities to "perform any function and exercise full legislative power in any and all matters of whatsoever nature pertaining to its municipal affairs," subject to state law. A.C.A. § 14-43-601(a)(1)(A) classifies "Public information and open meetings" as "state affairs" rather than "municipal affairs," but § 14-43-601(a)(2)(B) allows cities to legislate on state affairs as long as the legislation does not conflict with state law. Phillips v. Town of Oak Grove, 333 Ark. 183, 968 S.W.2d 600 (1998), confirms that cities are creatures of the legislature with delegated powers. The three preemption modes (express, field, conflict) trace back to Kollmeyer v. Greer, 267 Ark. 632, 593 S.W.2d 29 (1980), which described the doctrine as "comparable to the federal doctrine of pre-emption."

At the opinion date, the pending change was Act 505 of 2025, which amends § 25-19-103(6) to define "public meeting" to expressly include remote gatherings. The act lacks an emergency clause and was not yet effective when this opinion issued.

Citations

• A.C.A. § 25-19-103(6) (definition of public meeting; amended by Act 505 of 2025)
• A.C.A. § 25-19-106(a)–(e)
• A.C.A. § 14-43-501(a)(2)(C)(iii) (city governing body authority to determine rules of proceedings)
• A.C.A. § 14-43-601(a)(1)(A), (a)(2)(B) (state vs. municipal affairs)
• A.C.A. § 14-43-602 (home rule)
• A.C.A. § 14-55-102 (police power delegation)
• Ark. Const. art. 12, § 4 (home rule)
• Act 2 of 2020 (temporary COVID electronic-meeting authority)
• Act 56 of 2021 (made Act 2's framework permanent; added § 25-19-106(e))
• Act 505 of 2025 (expands "public meeting" definition; not yet effective)
• Rehab Hosp. Servs. Corp. v. Delta-Hills Health Sys. Agency, Inc., 285 Ark. 397, 687 S.W.2d 840 (1985)
• Depoyster v. Cole, 298 Ark. 203, 766 S.W.2d 606 (1989)
• Harris v. City of Fort Smith, 366 Ark. 277, 234 S.W.3d 875 (2006)
• Harris v. Crawford Cnty. Bd. of Election Comm'rs, 2022 Ark. 160, 651 S.W.3d 703
• Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002)
• Hurt-Hoover Investments, LLC v. Fulmer, 2014 Ark. 461, 448 S.W.3d 696
• Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179
• Wright v. Centerpoint Energy Res. Corp., 372 Ark. 330, 276 S.W.3d 253 (2008)
• Slusser v. Farm Serv., Inc., 359 Ark. 392, 198 S.W.3d 106 (2004)
• Harkuf v. Marony, 2022 Ark. 55, 639 S.W.3d 872
• Metzner v. State, 2015 Ark. 222, 462 S.W.3d 650
• Phillips v. Town of Oak Grove, 333 Ark. 183, 968 S.W.2d 600 (1998)
• Geurin v. City of Little Rock, 203 Ark. 103, 155 S.W.2d 719 (1941)
• Tompos v. City of Fayetteville, 280 Ark. 435, 658 S.W.2d 404 (1983)
• Kollmeyer v. Greer, 267 Ark. 632, 593 S.W.2d 29 (1980)
• Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968)
• Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012) (negative-implication canon)
• Eugene McQuillin, The Law of Municipal Corporations (3d ed. 2024)
• John J. Watkins et al., The Arkansas Freedom of Information Act (6th ed. 2017)
• Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power (7th ed. 1903)
• Prior AG opinions cited: Ops. 2021-048, 2018-017, 2015-088, 2014-124, 2012-051, 2011-062, 2006-059, 2005-129, 2003-170, 99-407, 98-033, 93-325, 92-245, 92-124, 91-197, 86-086

Source

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

Original opinion text

Opinion No. 2025-009
April 14, 2025
The Honorable Clint Penzo
State Senator
Post Office Box 7988
Springdale, Arkansas 72766
Dear Senator Penzo:
I am writing in response to your request for my opinion on public meetings “through electronic means” during “an emergency … declared by the governor” under A.C.A. § 25-19-106(e). As of the date of this opinion’s publication, the Governor has signed Act 505 of 2025. Act 505 amends the FOIA’s definition of “public meeting” under A.C.A. § 25-19-103(6) to include a “formal gathering together, in a special or regular gathering, of a governing body, whether in person or remotely” of certain public entities.1 Once in effect, the Act will substantively change both the facts presented and the analysis contained in this opinion. You specifically ask three questions:

1. If no emergency has been declared by the Governor, are council members allowed to attend
   city council meetings electronically and vote on matters?
   Brief response: Possibly. The canons of construction point different ways, so I cannot definitively opine on how a court may rule.
2. Can a city pass an ordinance to allow a council member to attend meetings
   [electronically]?2
   Brief response: Yes. Cities have the authority to enact ordinances that authorize their public bodies to hold public meetings electronically and that dictate how often a council member can utilize remote attendance. 1 See Act 505 of 2025, 95th Gen. Assemb., Reg. Sess. (Ark. 2025). 2 Based on all of the questions provided, I assume for purposes of this opinion that you are asking about the ability of council members to attend meetings electronically and not simply in-person. The Honorable Clint Penzo State Senator Opinion No. 2025-009 Page 2
3. If the answer to question 2 is yes, is there a limit to how many times yearly the council
   member can utilize remote attendance?
   Brief response: No. Cities have the authority to enact ordinances that dictate how often a council member can utilize remote attendance. DISCUSSION Question 1: If no emergency has been declared by the Governor, are council members allowed to attend city council meetings electronically and vote on matters? Under A.C.A. 25-19-106(a), the “governing bodies” of “all municipalities, counties, townships … boards, bureaus, commissions, or organizations of the State” must hold all their meetings in public,3 “[e]xcept as otherwise specifically provided by law.”4
4. Interpretation of A.C.A. 25-19-106 before Act 2 of 2020 and Act 56 of 2021. Before 2020,
   the FOIA did not explicitly address whether “public meetings” under the FOIA required the members of a governing body to physically attend and participate at such a meeting, or whether members could instead attend and participate electronically by phone or video call.5 Thus, the Arkansas Supreme Court and the Attorney General had long concluded that meetings of governing bodies did not have to be held in person if the FOIA’s procedural requirements were also met:6 (1) the governing body gives sufficient notice;7 (2) the public has the opportunity to hear or see the meeting;8 and (3) the public can hear or see how each member of the governing body voted.9 The rationale underpinning the Court’s FOIA decisions concerning electronic 3 The phrase “governing body” means a body that has decision-making authority. See, e.g., Ark. Att’y Gen. Ops. 2014- 124, 2011-062, 2006-059, 2003-170, 99-407. 4 While the FOIA itself contains several exemptions to A.C.A. § 25-19-106(a)’s open-meeting requirements—for example, § 25-19-106(c)(1), (5)–(7)—it also incorporates other statutes outside of the FOIA that authorize or require closed meetings. See A.C.A. § 25-19-106(a) (providing that meetings must be open to the public “[e]xcept as otherwise specifically provided by law”); Laman v. McCord, 245 Ark. 401, 405–06, 432 S.W.2d 753, 755–56 (1968). 5 See, e.g., Watkins et al., The Arkansas Freedom of Information Act 343 (6th ed. 2017). 6 See Rehab Hosp. Servs. Corp. v. Delta-Hills Health Sys. Agency, Inc., 285 Ark. 397, 401, 687 S.W.2d 840, 842 (1985) (stating that a “telephone poll, if conducted with proper notice, and if conducted with telephones available to the public and press, could have been an acceptable type of open meeting”); Ark. Att’y Gen. Op. 2018-017. 7 See A.C.A. § 25-19-106(b)(1)–(2); Ark. Att’y Gen. Op. 98-033. 8 See A.C.A. § 25-19-106(a) (providing that “all meetings” must be “public”); Ark. Att’y Gen. Ops. 2021-048, 2018-017. 9 See Depoyster v. Cole, 298 Ark. 203, 206–08, 766 S.W.2d 606, 607–09 (1989), overruled on other grounds by Harris v. City of Fort Smith, 366 Ark. 277, 234 S.W.3d 875 (2006); Ark. Att’y Gen. Ops. 92-124. The Honorable Clint Penzo State Senator Opinion No. 2025-009 Page 3 communications would also naturally apply to such “modern means of electronic communications” as video conferencing and “virtual” meetings.10 The Arkansas Supreme Court’s “interpretation of a statute subsequently becomes a part of the statute itself.”11 When enacting law, the General Assembly is “presumed” to know the Court’s interpretation of a statute and, if the General Assembly “disagrees with that interpretation, it can amend the statute.”12 “Without such amendments” the Court’s interpretation of the statute “remain[s] the law.”13 The Court’s interpretation of A.C.A. § 25-19-106—that meetings under the FOIA did not need to be in-person and could be held electronically—was the law before 2020.
5. Act 2 of 2020 and Act 56 of 2021. During the 2020 Fiscal Session, the General Assembly
   enacted Act 2, which temporarily amended the FOIA, related to the ability of “a public entity” to “assemble, gather, meet, and conduct an open public meeting through electronic means,” including by phone or video, during an emergency declared by the Governor. And under Act 2, if the Governor had declared an emergency, a public entity needed to also include with the typical notice of an open meeting notice of “the method the public may attend the open public meeting.”14 Thus, under Act 2 of 2020, if the Governor declares an emergency, a public entity could hold a public meeting under the FOIA, but it would have to provide additional notice.15 This Act expired on December 31, 2020.16 During the 2021 Regular Session, the General Assembly enacted Act 56, which made permanent Act 2 of 2020.
6. Negative implication. The expression, “[i]f the Governor declares a disaster emergency, a city
   “may assemble, gather, meet, and conduct an open public meeting through electronic means,” invites the “negative implication” that a public entity is not authorized to have a “public meeting through electronic means” in the absence of the Governor declaring an emergency. But this negative-implication canon—that “[t]he expression of one thing implies the exclusion of 10 See Watkins et al., supra note 5, at 344–45. 11 See Harris v. Crawford Cnty. Bd. of Election Comm’rs, 2022 Ark. 160, 7, 651 S.W.3d 703, 707. 12 Id. 13 Pifer v. Single Source Transp., 347 Ark. 851, 857, 69 S.W.3d 1, 4 (2002). 14 Act 2 of 2020, § 42. 15 Id. 16 In the “do not codify” portion of Act 2 of 2020, § 43, the General Assembly provided that the FOIA amendments were “cumulative of existing laws” and that those amendments were “temporary and expires on the date that the Governor determines that the” COVID-19 emergency has ended or, if the Governor “has not determined by December 31, 2020” that the emergency has ended, then the act expired on “December 31, 2020.” The Honorable Clint Penzo State Senator Opinion No. 2025-009 Page 4 others”17—depends on context,18 and the thing specified must “reasonably be thought to be an expression of all that share in the grant or prohibition involved.”19 To determine a statute’s meaning, courts will interpret the statute “just as it reads, giving the words their ordinary and usually accepted meaning.”20 Applying the negative-implication canon here suggests that cities may hold public meetings electronically only when the Governor has declared an emergency.
7. Repeal by implication. But another canon of construction—the presumption against implied
   repeal—cuts the other way.
   As explained above, A.C.A. § 25-19-106 (as interpreted by the Arkansas Supreme Court before 2020) allowed electronic meetings under the FOIA in circumstances other than declared emergencies. Statutes may be repealed, wholly or in part, either expressly or by implication.21 The General Assembly did not expressly repeal the law because Act 56 does not specifically mention “repeal” nor does it contain a “general repealer clause,” such as “all other laws and parts of laws in conflict are hereby repealed.”22 But a statute or part of a statute may be “repealed by implication” in two circumstances. First, if two statutory provisions are in “irreconcilable conflict” with one another,23 “there is an implied repeal by the latter one, which governs.”24 For example, if a statutory provision prohibits what an earlier statute permitted, “the earlier statute is (no doubt about it) implicitly repealed.”25 Second, a statutory provision 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.”26 17 See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 107 (2012) (negative- implication canon). 18 Id. 19 Id. 20 Metzner v. State, 2015 Ark. 222, at 9, 462 S.W.3d 650, 656; see Scalia & Garner, supra note 18, at 56–58 (“The words of a governing text … and what they convey, in their context, is what the text means.”). 21 See 1A Sutherland Statutory Construction § 23:7 (7th ed. 2024). 22 See, e.g., id. (noting that an “express repeal” “generally leaves no uncertainty whether the statues or parts of statues designated have been repealed”); Ark. Att’y Gen. Ops. 93-325, 91-197. 23 Hurt-Hoover Invs., LLC v. Fulmer, 2014 Ark. 461, 6, 448 S.W.3d 696, 700. 24 Brock v. Townsell, 2009 Ark. 224, 16, 309 S.W.3d 179, 189. 25 See Scalia & Garner, supra note 18, at 327. 26 Fulmer, 2014 Ark. at 6, 448 S.W.3d at 700. The Honorable Clint Penzo State Senator Opinion No. 2025-009 Page 5 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.”27 Otherwise, even statutes or parts of statutes that appear to conflict must be read harmoniously, if possible.28 Because the General Assembly did not “take up the whole subject anew” enacting Act 56—it added language to a pre-existing FOIA statute—the second type of repeal does not apply. Act 56 simply added subsection (e) to A.C.A. § 25-19-106 without explicitly amending the remainder of the statute. Thus, the Arkansas Supreme Court’s interpretation of the statute, which the General Assembly is presumed to have known, remains the law unless adding subsection (e) created a conflict or an “invincible repugnancy” between both that cannot harmonized.29 The interpretation that public meetings can be held electronically under the FOIA concerns the same subject matter of Act 56 of 2021. So the two statutory provisions should be read harmoniously, if possible. In my opinion, it is possible to read the two harmoniously. After 2020 and without considering Act 505 of 2025, public bodies can still meet electronically without a Governor-declared emergency if they follow the normal procedural requirements.30 For example, when there is no emergency, the public notices of the meetings must include “[t]he time and place of each regular meeting” and “the time, place, and date of” emergency or special meetings.31 This changes “[i]f the Governor declares a disaster emergency under the Arkansas Emergency Services Act of 1973.”32 When there is an emergency and an electronic meeting is held, the notices must also specify “the method the public may attend the open public meeting.”33 Similarly, when there is no emergency, the public body is not required to provide the public with a way to attend the meeting electronically, as opposed to requiring the public to physically attend in the location where a physical meeting would have occurred.34 But if there is an emergency and 27 Wright v. Centerpoint Energy Res. Corp., 372 Ark. 330, 333, 276 S.W.3d 253, 256 (2008). This “repugnancy … must be abundantly clear.” Id.; Ark. Att’y Gen. Op. 92-245. 28 Wright, 372 Ark. at 333, 276 S.W.3d at 256; Ark. Att’y Gen. Op. 92-245. 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. 29 Wright, 372 Ark. at 333, 276 S.W.3d at 256. 30 See Rehab Hosp. Servs., 285 Ark. at 401, 687 S.W.2d at 842. 31 A.C.A. § 25-19-106(b). 32 Id. § 25-19-106(d)(1). 33 Id. § 25-19-106(e)(2)(B). 34 Compare id. § 25-19-106(a)–(d) (not requiring availability of electronic attendance), with id. § 25-19-106(e)(2)(A) (requiring availability of electronic attendance). The Honorable Clint Penzo State Senator Opinion No. 2025-009 Page 6 an electronic meeting is held, the public body must provide the public with an “electronic means” of attending the meeting.35 Thus, under this canon of construction, the law as it was before Act 56 remains unchanged, except during an emergency declared by the Governor. Not only does this reading satisfy the presumption against implied repeal for the reasons discussed above,36 it also gives effect to “every word and every provision.”37

In my opinion, the interpretation of Act 56 using the repeal by implication canon may be slightly more persuasive than using the negative-implication canon. But because of these competing canons, it is difficult to determine how a court would rule. And I again caution that the reasoning above applies only to the currently effective text of the FOIA. The amended language, enacted by the General Assembly in Act 505 of 2025, will supersede the analysis here. Question 2: Can a city pass an ordinance to allow a council member to attend meetings
[electronically]?
For the reasons discussed below, and without considering Act 505 of 2025, a city can pass an ordinance to allow an electronic meeting, so long as that ordinance complies with the FOIA’s open-meetings procedural requirements.
1. Municipal authority. Cities, towns, and other municipalities “are creatures of the legislature”
and only have powers as delegated to them by the General Assembly.38 This expressly delegated authority includes both the broad “police power” and statutory “Home Rule,” which is the general power to act concerning “municipal affairs.”39 35 A.C.A. § 25-19-106(e)(2)(A). 36 See Scalia & Garner, supra note 18, at 327 (“Repeals by implication are disfavored …. But a provision that flatly contradicts an earlier-enacted provision repeals it.”). 37 See Scalia & Garner, supra note 18, at 174–79 (surplusage canon). 38 Ark. Const. art. 12, § 4; Phillips v. Town of Oak Grove, 333 Ark. 183, 189, 968 S.W.2d 600, 603 (1998). 39 A.C.A. § 14-43-602 (allowing municipalities to “perform any function and exercise full legislative power in any and all matters of whatsoever nature pertaining to its municipal affairs”); see also Ark. Att’y Gen. Op. 2012-051 (surveying the applicable statutes and case law). The Honorable Clint Penzo State Senator Opinion No. 2025-009 Page 7 1.1. Police power. The police power is the power inherent in state sovereignty and is not a grant derived from any constitution.40 Although municipalities do not inherently have this power,41 the General Assembly has expressly delegated it to them. The “police power” delegated to municipalities is the power to “make and publish bylaws and ordinances, not inconsistent with the laws of this state, which, as to them, shall seem necessary to provide for the safety, preserve the health, promote the prosperity, and improve the morals, order, comfort, and convenience of such corporations and the inhabitants thereof.”42 1.2. “Municipal affairs” vs. “state affairs.” Under A.C.A. § 14-43-602(a), cities, towns, and other municipalities are also “authorized to perform any function and exercise full legislative power in any and all matters of whatsoever nature pertaining to its municipal affairs,” if the legislation is not “contrary to the general laws of the state.”43 Under A.C.A.
§ 14-43-501(a)(2)(C)(iii), a city’s “governing body” must “determine the rules of its proceedings,” including how it files ordinances and conducts its meetings. But both “[p]ublic information and open meetings” are expressly “state affairs” and not “municipal affairs.”44 A city, however, “may legislate upon” such “state affairs … if not in conflict with state law.”45 This Office has opined that, if consistent with State laws, a city may adopt rules of procedure that authorize meeting “virtually rather than physically.”46 40 Geurin v. City of Little Rock, 203 Ark. 103, 155 S.W.2d 719, 721 (1941); see also Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the State of the American Union 831–32 (7th ed. 1903) (“In the American constitutional system, the power to establish the ordinary regulation of police has been left with the individual States, and it cannot be taken from them, either wholly or in part, and exercised under legislation of Congress,” and the “national government” cannot assume any supervision of the police regulations of the States.”). 41 Eugene McQuillin, The Law of Municipal Corporations § 24:6 (3d ed. 2024). 42 A.C.A. § 14-55-102 (emphasis added). 43 Ark. Const. art. 12, § 4. 44 See A.C.A. 14-43-601(a)(1)(A); Ark. Att’y Gen. Op. 2001-052. 45 A.C.A. § 14-43-601(a)(2)(B). 46 See Ark. Att’y Gen. Ops. 2021-048, 2018-017. The Honorable Clint Penzo State Senator Opinion No. 2025-009 Page 8
2. State preemption. State statutes can preempt municipal ordinances in three ways:47 (1) express
preemption;48 (2) field preemption;49 and (3) conflict preemption.50 First express preemption occurs when the text of a statute expressly forecloses local legislation on the topic. Second, field preemption occurs when the breadth of State regulation indicates that the General Assembly intends to “hold the field” of a particular area of law, or regulate “an area completely so as to not leave reasonable room for local regulation.”51 “The General Assembly should be clear when it intends to pre-empt a field that otherwise could be validly regulated by … ordinance.”52 This clarity is necessary because Arkansas’s Home Rule Act grants municipalities broad authority to regulate unless the regulation is “in conflict with state law.”53 Last, conflict preemption occurs when an ordinance is contrary to or irreconcilable with state statutes,54 or when it less restrictive than state statutes.55
3. Conclusion. In my opinion, neither the FOIA generally nor A.C.A. § 25-19-106(e) specifically
preempts cities from enacting ordinances allowing members of public bodies to attend meetings electronically if those ordinances do not conflict with the requirements of the FOIA. Question 3: If the answer to question 2 is yes, is there a limit to how many times yearly the council member can utilize remote attendance? As discussed above, and without considering Act 505 of 2025, a city has authority to regulate related to electronic public meetings. Thus, it has the authority to pass an ordinance limiting the number of times that a council member may utilize remote attendance. 47 Preemption for state laws largely mirrors the doctrine of federal preemption. See, e.g., Kollmeyer v. Greer, 267 Ark. 632, 636, 593 S.W.2d 29, 31 (1980) (noting that a situation concerning a State statute and a local ordinance was “comparable to the federal doctrine of pre-emption that is utilized in reconciling federal law with any state law that seeks to regulate the same subject matter”). 48 See, e.g., McNeill, 120 S.W.3d at 608–09; Kollmeyer, 267 Ark. at 636–37, 593 S.W.2d at 30–32; Ark. Att’y Gen. Op. 2015-088. 49 See, e.g., Ark. Att’y Gen. Ops. 2015-088 (reviewing a state statute that “prohibits localities from regulating in th[e] field” of “antidiscrimination law”), 2005-129 (“The State may preempt any local legislative authority by regulating an area completely so as not to leave reasonable room for local regulation.”). 50 Kollmeyer, 267 Ark. at 637, 593 S.W.2d at 31 (holding that certain local ordinances were “inconsistent [with] and in conflict with” certain state statutes). 51 E.g., Ark. Att’y Gen. Ops. 2015-088, 2005-129. 52 Kollmeyer, 267 Ark. at 637, 593 S.W.2d at 31. 53 A.C.A. § 14-43-601(a)(2)(B). 54 E.g., Tompos v. City of Fayetteville, 280 Ark. 435, 437–38, 658 S.W.2d 404, 406 (1983). 55 E.g., Ark. Att’y Gen. Op. 86-086. The Honorable Clint Penzo State Senator Opinion No. 2025-009 Page 9 Assistant Attorney William R. Olson prepared this opinion, which I hereby approve. Sincerely, TIM GRIFFIN Attorney General