Can a city council in Arkansas pass an ordinance the council had no legal power to pass, and if so, must the mayor still sign (authenticate) it? Can the council strip the mayor of authority to fire department heads?
Subject
Six questions from Senator John Payton on Arkansas municipal authority: when a city council acts beyond its legal power (ultra vires), what happens; what the mayor's authentication duty under A.C.A. § 14-55-205 means; whether the mayor can refuse to authenticate based on substantive disagreement; what happens if the mayor refuses or omits the signature; and whether a council can use an ordinance to strip the mayor of statutory department-head appointment and removal power.
Plain-English summary
Senator Payton's questions started from a foundational tension in municipal law: cities only have power that the legislature gives them (Ark. Const. art. 12, § 4; A.C.A. § 14-55-102 limits ordinances to those "not inconsistent with the laws of this state"). So can a city council technically pass an ordinance it had no legal power to pass, and if it does, what happens? AG Tim Griffin walked through six related questions and gave a practitioner-grade answer.
Question 1: Can a city pass an ordinance beyond its power, and is it void? The AG drew a careful distinction between two ways an ordinance can be defective. First, "irregular ultra vires": the city had the underlying power but failed to follow procedure. Examples: a missing meeting notice, a contract entered without proper authorization. These can usually be cured by holding the meeting or passing a corrective ordinance, or ratified by the city's subsequent conduct (Day v. City of Malvern; Dell Special School District v. Johnson). Second, "true ultra vires": the city had no power to do the thing at all, regardless of procedure. Examples: long-term contracts to pay another government's debts (Barnhart v. City of Fayetteville); minority school board members hiring lawyers to fight the majority (Blount v. Baker); contracts divesting a city of police power, eminent domain, or taxing power (Lamar Bath House v. City of Hot Springs). True ultra vires acts are void ab initio, and the city cannot ratify them later because the city never had the power.
But the AG also distinguished between de facto and de jure existence. A "de facto" ordinance is one that meets the procedural box-checking for passage but is substantively beyond the council's power: "in actual fact" passed, but not "by right" passed. Until a court declares it void, the ordinance has effect. So in a practical sense, a council can pass an ultra vires ordinance; it just may be vulnerable to a court challenge.
Questions 2 through 5: the mayor's authentication duty. A.C.A. § 14-55-205 requires that "All bylaws or ordinances after their passage shall be recorded in a book kept for that purpose and shall be authenticated by the signature of the presiding officer of the governing body and the clerk or recorder." Senator Payton asked whether the mayor could refuse to sign an ordinance the mayor believed was ultra vires.
The AG said no. The authentication signature is not a substantive approval; it is purely administrative record-keeping. It serves "to provide a dispositive test for assessing whether a given bylaw or ordinance is the one passed by the city council" (Lewis v. Forrest City SID, 1923). Authentication and the mayor's veto power are distinct: veto is legislative, discretionary, and can prevent a law from taking effect; authentication is administrative, mandatory, and does not depend on agreement with the substance.
So the mayor must authenticate any ordinance that has been "passed" (de facto), regardless of whether the mayor thinks it is ultra vires. The substantive question of de jure validity is for a court to decide; it is not the mayor's call at the authentication stage.
When must the mayor authenticate? As soon as the ordinance is de facto enacted, within a reasonable time (Op. 2003-066). A "reasonable time" is what a person of ordinary diligence would do under the circumstances (Alphin v. Matthews, 1928).
Does failure to authenticate invalidate the ordinance? No. The AG explicitly disagreed with a prior AG opinion (Op. 2003-066) on this point. The Arkansas Supreme Court held in 1923 that the mayor's signature is not required for an ordinance to take effect (Lewis v. Forrest City SID). The signature is "merely for the purposes of making a record," and "the failure to sign does not defeat an ordinance which has been duly passed." Authentication is mandatory record-keeping, but its omission does not render the ordinance invalid.
If the mayor vetoes and is overridden, must the mayor authenticate again? Yes. The veto and authentication powers are independent. Authentication does not signal approval, so authenticating after a successful veto override is not contradictory.
Question 6: Can the council strip the mayor of department-head appointment/removal power? Generally no. A.C.A. § 14-42-110(a)(1) gives the mayor authority to appoint and remove department heads, subject to a two-thirds council override of specific actions. The only exception is that A.C.A. § 14-42-110(a)(2) lets a city with a civil service commission delegate, by ordinance, appointment and removal of police and fire chiefs to the civil service commission. The statute does not authorize delegation to the city treasurer or any other official. § 14-42-110(c) also notes that the section does not apply to department heads not under the city governing body's control or to cities with a city-administrator form of government, where the governing statutes for that form would control.
What this means for you
If you are a mayor facing an ordinance you think is ultra vires
Authenticate it. Then either (a) veto it (a separate legislative-process power) and let the council override or sustain, or (b) if vetoing is not on the table or you have been overridden, file a declaratory judgment action asking a court to declare the ordinance void ab initio. Refusing to authenticate is not an option. The authentication signature is administrative record-keeping, not approval. Refusing creates a record problem (downstream questions about whether the ordinance was actually passed) without resolving the substantive issue.
If you are a city attorney advising on a contested ordinance
Walk the mayor through the analytical sequence: (1) is the ordinance "irregular ultra vires" (procedural defect that can be cured) or "true ultra vires" (city never had the power at all)? (2) If true ultra vires, the ordinance is void ab initio when a court so declares; until then, it has de facto effect. (3) The mayor's authentication duty is independent of substantive validity; recommend authentication. (4) The veto power is the mayor's substantive check; if not yet exercised and within the deadline, recommend veto with a written statement explaining the legal infirmity. (5) If veto is overridden, declaratory judgment action in circuit court is the substantive remedy.
If you are a city council member
You can pass an ordinance the city has no power to pass, and it will have de facto effect until challenged. But "de facto" is not a stable legal posture. A future plaintiff (taxpayer, mayor, affected party) can sue and have it declared void ab initio, with knock-on consequences for any contracts or actions taken under it. Before voting, get an opinion from the city attorney on whether the ordinance is within the city's lawful authority. The cost of an attorney opinion is much less than the cost of having the ordinance struck down after implementation.
If you are a city council considering reorganizing department-head appointment authority
The default rule under A.C.A. § 14-42-110(a)(1) is mayor appoints and removes, council can override with two-thirds. The only way to delegate that power by ordinance is to a civil service commission, and only for police and fire chief positions in cities that have such a commission. Delegating to the city treasurer, the city clerk, or a non-civil-service body is not authorized and would be ultra vires. Different cities (city-administrator form, city-manager form) operate under different statutes and may have different rules; consult the governing statutes for your form of government.
If you are a municipal clerk or recorder
The authentication record is your bookkeeping responsibility (you co-sign with the mayor). Maintain the ordinance book carefully. If the mayor delays signing past a reasonable time, document the requests for signature and the reasons for delay; this protects you and the city from later disputes about whether and when the ordinance was authenticated. If the mayor refuses to sign at all, the ordinance is still legally effective if duly passed (Lewis v. Forrest City SID), but the record gap creates evidentiary problems that should be flagged in writing to the city attorney.
If you are a department head whose appointing authority is being changed
A council ordinance moving your appointing authority from the mayor to the city treasurer (or another non-civil-service official) is most likely ultra vires under A.C.A. § 14-42-110. If you are removed under such an ordinance, you may have a basis to challenge the removal as void because the ordinance giving the treasurer appointing authority was beyond the council's power. Talk to an employment attorney with municipal-law experience.
Common questions
Q: What's the difference between de facto and de jure?
A: De facto means "in actual fact," existing or operative, even if not formally legitimate. De jure means "by right," existing under the law. A de facto ordinance has been procedurally passed but may be substantively beyond the council's power; until a court strikes it down, it has effect.
Q: What's "ultra vires"?
A: Latin for "beyond the powers (of)." An act of a corporation (including a municipal corporation) that exceeds the powers granted to it. Two flavors in Arkansas: irregular ultra vires (had the power, used it improperly) versus true ultra vires (never had the power at all).
Q: What does "void ab initio" mean?
A: Void from the beginning. A true-ultra-vires ordinance is treated as if it never existed legally. Acts taken under it (contracts signed, money paid out, jobs filled) may be unwound on equitable grounds, depending on facts and reliance.
Q: Can the city ratify an ultra vires ordinance after the fact?
A: Sometimes. Irregular ultra vires acts can be ratified by the city, holding the missing meeting, passing the corrective resolution, or by conduct that signals subsequent approval (Day v. City of Malvern; Dell School District v. Johnson). True ultra vires acts cannot be ratified because the city never had the power to do them in the first place (Blount v. Baker).
Q: Why is authentication "purely administrative"?
A: Because the signature confirms only that the document is the one the council actually passed. It is a record-keeping function (Lewis v. Forrest City SID, 1923), not a substantive approval. The mayor's substantive say comes through the veto power, which is separate and discretionary.
Q: If the mayor never authenticates, is there ever a record-keeping consequence?
A: A practical one. Without the mayor's signature, downstream parties (courts, contractors, citizens) may have a harder time confirming that the ordinance the city is enforcing is the one the council actually passed. The substance of the ordinance is unaffected, but the evidentiary chain is weaker.
Q: How long is "reasonable time" for authentication?
A: The Arkansas Supreme Court calls it "such a period of time as suffices for performance, if the one whose duty it is to perform uses such diligence as a person of ordinary diligence and prudence would use under like circumstances" (Alphin v. Matthews). For a routine ordinance, days, not weeks.
Q: Why can a city with a civil service commission delegate police and fire chief appointing authority but no other delegation is allowed?
A: A.C.A. § 14-42-110(a)(2) explicitly authorizes that one delegation. Statutes are read narrowly here: delegations of mayoral appointment power are not allowed except where the legislature has expressly said so. The legislature said yes for police/fire chiefs to civil service commissions; everything else is no.
Background and statutory framework
A.C.A. § 14-55-102 grants municipalities police power to "make and publish bylaws and ordinances, not inconsistent with the laws of this state." Ordinances passed beyond that authority are ultra vires. The Arkansas Supreme Court in Barnhart v. City of Fayetteville (1995) recognized two kinds of ultra vires acts: those that were merely "exercised irregularly" and could be ratified, versus those "wholly outside the authority of the municipality, under any circumstances," which are void ab initio.
A.C.A. § 14-55-205 requires authentication: "All bylaws or ordinances after their passage shall be recorded in a book kept for that purpose and shall be authenticated by the signature of the presiding officer of the governing body and the clerk or recorder." A.C.A. § 14-55-402(a) makes printed copies of authenticated ordinances admissible in evidence "with as much effect" as the originals.
The mayor's veto power varies by city form: A.C.A. §§ 14-43-504(d) (first-class cities), 14-44-107(b) (second-class cities), 14-45-105(b) (incorporated towns), 14-47-140(b) (city manager form), 14-48-111(a)(1)(A) (city administrator form). Veto is "completely discretionary" (City of Helena-West Helena v. Williams, 2024).
Lewis v. Forrest City Special Improvement District (1923) established that the authentication signature is administrative record-keeping, separate from the veto power, and that omission of the signature does not invalidate a duly-passed ordinance. The opinion explicitly disagrees with prior Op. 2003-066 to the extent it suggested otherwise.
A.C.A. § 14-42-110 governs department-head appointment and removal. Section (a)(1) reserves the power to the mayor, with a two-thirds council override possible. Section (a)(2) creates the only delegation exception: civil service commissions may receive appointment/removal authority for police and fire chiefs in first-class cities by ordinance. Section (c) carves out cities with city-administrator form (separate governing statutes apply) and department heads not under the governing body's control.
Citations and references
Constitutional and statutory provisions:
- Ark. Const. art. 12, § 4 (city authority limited to legislative grant)
- A.C.A. § 14-55-205 (authentication of ordinances)
- A.C.A. § 14-55-102 (municipal police power)
- A.C.A. § 14-55-402 (printed ordinances as evidence)
- A.C.A. § 14-42-110 (department head appointment)
- A.C.A. §§ 14-43-504(d), 14-44-107(b), 14-45-105(b), 14-47-140(b), 14-48-111(a)(1)(A) (veto power by city form)
Cases:
- Barnhart v. City of Fayetteville, 321 Ark. 197, 900 S.W.2d 539 (1995) (two kinds of ultra vires)
- Lewis v. Forrest City SID, 156 Ark. 356, 246 S.W. 867 (1923) (authentication is administrative; signature not required for effectiveness)
- Lamar Bath House Co. v. City of Hot Springs, 229 Ark. 214, 315 S.W.2d 884 (1958) (cannot contract away police power)
- Day v. City of Malvern, 195 Ark. 804, 114 S.W.2d 459 (1938) (ratification of irregular acts)
- Blount v. Baker, 177 Ark. 1162, 9 S.W.2d 802 (1928) (cannot ratify true ultra vires)
- Hospital & Benevolent Association v. Arkansas Baptist State Convention, 176 Ark. 946, 4 S.W.2d 933 (1928)
- Dell Special School District No. 23 v. Johnson, 129 Ark. 211, 195 S.W. 373 (1917)
- City of Helena-West Helena v. Williams, 2024 Ark. 102, 689 S.W.3d 62
- Arkansas Power & Light v. City of Paragould, 146 Ark. 1, 225 S.W. 435 (1920)
- Alphin v. Matthews, 175 Ark. 1020, 1 S.W.2d 79 (1928) (reasonable time)
- Adamson v. Adamson, 9 Ark. 26 (1848) (clerk-and-seal presumption)
- Fryar v. Roberts, 346 Ark. 432, 57 S.W.3d 727 (2001) (de facto/de jure example)
Prior AG opinions:
- Op. 2003-066 (authentication within reasonable time, but partially disagreed with on invalidation point)
- Op. 2011-148, 2011-130, 1991-289 (city can ratify what it could lawfully authorize)
- Op. 2011-147 (de facto corporations)
- Op. 2023-090, 2023-047 (failure to veto has no effect on underlying law)
Source
Original opinion text
BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
Opinion No. 2025-102
February 13, 2026
The Honorable John Payton
State Senator
Post Office Box 181
Wilburn, Arkansas 72179
Dear Senator Payton:
Arkansas law establishes several requirements for municipalities' "bylaws and ordinances" after they are passed by a municipality's governing body. One of those requirements, found in A.C.A. § 14-55-205, is that such bylaws and ordinances "shall be recorded in a book" and "shall be authenticated by the signature of the presiding officer of the governing body and the clerk or recorder."
You ask six questions: two about the power of a city council in general and four about the authentication requirement in particular:
1. Because municipal corporations only possess the power to make and publish bylaws and ordinances that are consistent with state law, is it possible for a municipal corporation to act in excess of its power and pass a bylaw or ordinance that is inconsistent with state law? If the answer to the first part of this question is technically yes, would such government action be considered void ab initio?
Brief response: A municipality can enact a bylaw or ordinance in two ways: de facto and de jure. The former means the law is effective but illegitimate and usually requires court intervention to settle whether it is illegitimate. A de facto law that is beyond the council's power is void from the beginning. But as discussed below, a few such laws can be remedied.
2. May a mayor refuse to authenticate bylaws and ordinances that are patently inconsistent with state law given that the presiding officer's authentication responsibility is only triggered by the "passage" of a bylaw or ordinance, the satisfaction of which is inherently beyond a city council's power to achieve?
Brief response: The authentication requirement is triggered by a law's passage, regardless of whether that passage is de facto.
3. When must a mayor authenticate the passage of a bylaw or ordinance?
Brief response: The authentication obligation arises as soon as the law passes and must be exercised within a reasonable time.
4. What is the consequence of failing to authenticate the passage of a bylaw or ordinance? More specifically, can an ordinance or bylaw be effective if its passage has not been authenticated?
Brief response: The mayor's authenticating signature is not required in order for the ordinance or bylaw to become effective.
5. If a mayor vetoes a bylaw or ordinance after initially authenticating its passage, must the mayor authenticate its passage a second time upon a successful veto override?
Brief response: Yes, the authentication power must be used. The veto power and the authentication power do not depend on each other. The mayor's authentication does not indicate agreement with the law.
6. Is it lawful under any set of circumstances for a city council to enact an ordinance stripping the mayor's power to appoint or remove department heads and subsequently delegating that power to the city's treasurer?
Brief response: Generally, no. A city council may not, by ordinance, strip the mayor of the statutory power to appoint or remove department heads and reassign that power to the city treasurer.
DISCUSSION
Question 1. A municipality can enact a bylaw or ordinance in two ways: de facto and de jure. The former means the law is effective but illegitimate and usually requires court intervention to make the declaration that it is illegitimate. A de facto law that is beyond the council's power is void from the beginning. But as discussed below, a few ultra vires laws can be remedied.
Acts outside of a municipality's authority are known as "ultra vires." The Arkansas Supreme Court has explained that a municipality acts ultra vires in two ways. First, a municipality acts ultra vires when it exercises its authority "irregularly." In this situation, the municipality has the power to do what it is attempting to do but fails to follow proper procedures. Often, the municipality can cure the irregularity, e.g., by holding a meeting or enacting an ordinance. Other times, a court may find that the municipality's subsequent actions ratified the irregular act.
The second type of ultra vires act occurs when the act "is wholly outside the authority of the municipality, under any circumstances." Examples include (1) a contract to pay long-term obligations of a separate governmental entity without receiving any services; (2) a contract by minority school board members and taxpayers to employ attorneys to resist board action; and (3) a contract that divests a municipality of its general police power, eminent domain authority, or taxing power. With this type of ultra vires act, a court will find the act void ab initio because the municipality never had the authority to complete the act.
Questions 2-5: Authentication.
Arkansas law vests mayors with several powers, two of which are critical to resolving your questions: the veto power and the authentication power. These two powers differ in several ways:
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In their nature. The veto power is legislative in nature because it encroaches on the council's legislative functions. In contrast, the authentication power is not legislative in nature but is administrative or a matter of record keeping that establishes the definitive test to ascertain whether a given bylaw or ordinance is genuine (i.e., whether the bylaw or ordinance is truly the same one the city council passed).
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In their discretion. The mayor has complete discretion over whether to exercise the veto power. In contrast, the authentication power is ministerial and nondiscretionary: "All bylaws or ordinances after their passage shall be recorded in a book kept for that purpose and shall be authenticated by the signature of the presiding officer of the governing body and the clerk or recorder."
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In their purpose. The purpose of the veto power is to act as an executive-branch check on the legislative power. In contrast, the authentication power is in no sense connected to checks-and-balances. Rather, its purpose is to provide a dispositive test for assessing whether a given bylaw or ordinance is the one passed by the city council.
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In their effects. When the veto is used, it has the effect of preventing a duly passed law from becoming law. The decision not to exercise the veto has no effect on the underlying law or attempt to pass a law. In contrast, the effect of the authentication power is to settle whether a given document was actually passed by the city council. The exercise of the authentication power is dispositive. The failure to authenticate a document does not render the document no longer the law. Rather, if there are independent reasons to consider the document to be the one passed by the city council, then the omission only raises doubt and perhaps slows some processes, but the omission does not render the law invalid.
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In their subjects. The veto power is vested in the chief executive and is not shared with anyone else. In contrast, the authentication requirement is shared between the "presiding officer of the governing body" and the "clerk or recorder."
Question 2. Your second question asks whether the mayor has authority to "refuse to authenticate bylaws and ordinances that are patently inconsistent with state law." The answer is no because, as noted above, the authentication is purely an administrative, record-keeping function and is not directed at or affected by the law's content or substantive validity.
The question also makes clear that it is based on the following reasoning: The presiding officer's authentication responsibility is only triggered by the 'passage' of a bylaw or ordinance; and, since an ultra vires bylaw or ordinance cannot be passed (because the city council, by definition, lacks the power to enact it), the presiding officer's authentication responsibility is not triggered for ultra vires laws.
The main problem with this reasoning is that it conflates two senses in which a law can be considered "passed" or "enacted." A general principle of law, applicable in multiple contexts, is that something can be the case de facto but not de jure. "De facto" simply means "in actual fact" or "having effect though not formally or legally recognized; [i]llegitmate but in effect." Its opposite is "de jure," which means "rightfully" or "[e]xisting by rule or according to law." An ordinance can meet the procedural requirements for passage but, in substance, it can be beyond the council's power. That would make the ordinance passed de facto passed but not de jure. If that distinction were not applicable, then it could be impossible for a court to declare an ordinance unconstitutional because there would be nothing, in fact, for the court to assess and pronounce a judgment on. There would be nothing, in fact, that "conflicted" with the constitution.
Therefore, an ordinance is passed de jure when it meets all the procedural requirements necessary for ordinances to be enacted and the substance of the ordinance is within the city council's power. In contrast, an ordinance is passed de facto when the law is "illegitimate but in effect." That can occur, for example, when the law meets the procedural requirements to be considered a law but is ultra vires, precisely the situation your question contemplates. The authentication obligation is triggered when a law is passed at all, whether de facto or de jure. This is because, as noted above, the authentication is simply about whether the law reflects what was actually passed by the city council. Whether this law is passed de jure, and therefore can be effective, is a separate question that usually requires a court's intervention to settle. But the mayor's view of whether the law is de jure passed cannot be the basis for a refusal to authenticate.
Question 3. Your third question asks when the mayor must authenticate the bylaw or ordinance. If you are asking when the obligation arises, the answer is that it arises as soon as the bylaw or ordinance is de facto enacted. If you are asking about the obligation's deadline, then the answer is that the authentication must occur within a reasonable time. While the statute does not specify a timeframe, this Office has previously opined that a mayor must authenticate a bylaw or ordinance within a reasonable time. The Arkansas Supreme Court has explained that a reasonable time is "such a period of time as suffices for their performance, if the one whose duty it is to perform uses such diligence in the performance as a person of ordinary diligence and prudence would use under like circumstances."
Question 4. Your fourth question asks whether a bylaw or ordinance that is passed can be effective without the authentication. The answer is yes because the authentication is about the law's genuineness, not its validity. A prior opinion from this Office concluded that "a complete failure to have the ordinance [or bylaw] authenticated as required by A.C.A. § 14-55-205 will render the ordinance [or bylaw] invalid." But I respectfully disagree. Contrary to my predecessor's suggestion that appellate courts have not interpreted this statute, the Arkansas Supreme Court addressed this question in 1923, holding that a prior version of the statute did not require a mayor's signature for an ordinance or bylaw to take effect. The court explained that, because the mayor possesses a separate veto power, "[t]he signature of the presiding officer, is merely for the purposes of making a record," and "the failure to sign does not defeat an ordinance [or bylaw] which has been duly passed." While authentication is a mandatory record-keeping requirement, the lack of a mayoral signature does not, by itself, invalidate an ordinance or bylaw that has otherwise been duly enacted.
Question 5. Your fifth question asks whether the mayor must authenticate a bylaw or ordinance a second time if the mayor's veto is overridden. The answer is yes because the veto power and the authentication power do not depend on each other. The mayor's authentication does not indicate agreement with the law.
Question 6. Generally, no. A city council may not, by ordinance, strip the mayor of the statutory power to appoint or remove department heads and reassign that power to the city treasurer. Under A.C.A. § 14-42-110(a)(1), the mayor holds the authority to appoint and remove department heads, subject to a two-thirds council override of a specific action. The sole exception in § 14-42-110 allows the governing body of a city with a civil service commission to delegate, by ordinance, appointment and removal of the police and fire chiefs to the civil service commission. Section 14-42-110 does not apply to department heads not under the control of the governing body of the city or to cities with a city-administrator form of government. Reallocation of appointment or removal authority in those settings will depend on the governing statutes. Local counsel is best positioned to advise city officials on whether any particular department head falls under the city council's authority.
Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General