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 post-Act-505 analysis is much cleaner; the pre-Act-505 analysis is what the opinion has to wrestle with.
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. v. Delta-Hills, 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.
So the AG's tentative answer to Question 1 is "yes, electronic meetings are authorized even without a declared emergency, provided the FOIA procedural requirements are met." But because both canons have force, the AG cannot definitively predict how a court would rule. And Act 505 of 2025 will moot the question once it takes effect.
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
City council members and mayors
You probably can attend remotely without an emergency, but two things are true:
- The legal answer is unsettled. The AG's analysis tilts toward allowing it, but a court could go the other way using the negative-implication canon.
- Act 505 of 2025, when effective, will resolve the question in favor of permitting remote attendance with appropriate notice and access. Watch for the act's effective date and check whether your city's procedures comply with the post-Act-505 framework.
In the meantime, the safest path is to (a) follow all FOIA procedural requirements (notice, public access to view or hear the meeting, public ability to see how each member votes), and (b) pass an ordinance that explicitly authorizes electronic attendance under FOIA-compliant procedures. The ordinance gives you cleaner cover than relying on the AG's split-canon analysis.
If you do attend remotely:
- Make sure the public has a way to attend the meeting (in person or electronically).
- Make sure your vote is visible or audible to the public.
- Make sure the public notice for the meeting includes any electronic attendance information.
City attorneys
Three drafting recommendations for an electronic-meeting ordinance:
- Default rule. State that public meetings may be held electronically with FOIA-compliant procedures.
- Cap. Specify how many times per year a council member may attend remotely (no state cap exists, so the city sets its own).
- Procedural requirements. Cross-reference A.C.A. § 25-19-106 and require notice that includes the method by which the public can attend electronically, plus a way for the public to hear and see how each member votes.
Once Act 505 of 2025 is effective, audit the ordinance against the new statutory text. The "formal gathering together ... whether in person or remotely" definition will likely simplify the analysis, but it may also impose new requirements not addressed here.
Quorum court members and school board members
The opinion is framed around city councils but the logic applies to other public bodies in Arkansas. The Court's pre-2020 interpretation of FOIA was about "governing bodies" generally; the Act 505 expansion of the "public meeting" definition will sweep in counties, school districts, and other public entities. The legal framework is the same: FOIA-compliant procedures plus, where applicable, a local ordinance or rule.
Municipal clerks and FOIA compliance officers
Update meeting notice templates to include the method by which the public can attend electronically, even when there's no Governor-declared emergency, if your governing body holds an electronic meeting. The notice requirement reduces FOIA exposure regardless of which canon a court ultimately applies.
Common questions
Q: Right now (April 2025), can my city council legally hold a Zoom meeting?
The AG's answer is "possibly yes," with the analysis tilting toward yes. Pass an ordinance authorizing electronic meetings, follow the FOIA notice requirements, ensure public access, and ensure votes are visible. That's the safest posture. Wait for Act 505 of 2025 to take effect for a clean affirmative answer.
Q: How will Act 505 of 2025 change this?
Act 505 expands the FOIA definition of "public meeting" to explicitly include remote gatherings. Once effective, the statutory text will not need to be reconciled across canons; remote meetings will fit squarely within the FOIA framework if the procedural requirements are followed. The AG opinion does not analyze Act 505 in detail because it was not yet in effect as of April 14, 2025.
Q: Can the city require the council member to be physically present in city limits to vote?
The AG opinion says yes; cities can pass ordinances regulating how often or under what circumstances council members may attend remotely. A "must be physically present" rule would be more restrictive than the FOIA's electronic-meeting allowance, but Arkansas's preemption framework allows cities to be more restrictive than state law on procedural matters.
Q: What about a council member who is sick or out of state?
That's a factual scenario the opinion doesn't directly address. If your city ordinance allows remote attendance, the council member can attend remotely whether they're sick, traveling, or just preferring not to commute. If your ordinance limits remote attendance to specific circumstances (illness, military service, weather), those limitations apply.
Q: Does an executive session count as a "public meeting" for these purposes?
The opinion does not directly address executive sessions. The FOIA treats executive sessions as a closed-portion exception to the open-meeting rule (per § 25-19-106(c)), but the meeting itself is still a public meeting requiring proper notice. The electronic-attendance analysis would apply, but a council member attending an executive session remotely would need to comply with the executive-session confidentiality requirements.
Q: What are the FOIA procedural requirements I keep seeing referenced?
Three: (1) sufficient public notice of the meeting (under § 25-19-106(b)); (2) public ability to hear or see the meeting; (3) public ability to hear or see how each member of the governing body voted. These come from Rehab Hosp. Servs. v. Delta-Hills (1985), Depoyster v. Cole (1989), and the surrounding AG opinions.
Q: What's "preemption" in this context?
The state can preempt a city ordinance in three ways. Express preemption: the state law explicitly forbids local regulation. Field preemption: the state law's breadth indicates the General Assembly intends to occupy the field. Conflict preemption: the local ordinance is irreconcilable with state law or less restrictive than state law. The AG concluded none of these preempt city ordinances on electronic attendance.
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 Resources 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: Arkansas Constitution Article 12, § 4 establishes home rule. 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."
The pending change is 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 Hospital Services Corp. v. Delta-Hills Health System 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 County Board of Election Commissioners, 2022 Ark. 160, 651 S.W.3d 703
- Pifer v. Single Source Transportation, 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 Resources Corp., 372 Ark. 330, 276 S.W.3d 253 (2008)
- Slusser v. Farm Service, 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
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
1. 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.
2. 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.
3. 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.
4. 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