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Now is a good time to review city council procedures and matters such as just when the mayor can vote and can't vote.
By David Schoen, Legal Counsel, Arkansas Municipal League
QWhat is the difference between an ordinance and a resolution? AAn ordinance is a permanent law. A resolution is temporary in nature, and for that reason, it is more appropriately used when a city wants to make known its intent on certain matters. Kruzich v. West Memphis Util. Comm'n., 257 Ark. 187, 189, 515 S.W.2d 71, 72 (1974). Proper subjects of an ordinance would include zoning, animal control, building codes, the setting of salaries and juvenile curfews, just to name a few. Resolutions are commonly used to approve specific expenditures and contracts or to recognize an employee or citizen for distinguished service to the city.
QMust an ordinance be read three times if it is not of a "general or permanent" nature? AArk. Code Ann. § 14-55-202 requires ordinances of a general or permanent nature to be read on three different days unless two-thirds of the council votes to dispense with the rule. "The ordinances of a general or permanent nature which must be adopted according to the formalities of section [14-55-202] ... refer to those regulations and acts of the council which prescribe a permanent rule of government for the municipality." City of Batesville v. Ball, 100 Ark. 496, 140 S.W. 712, 716 (1911). In the Batesville case, the court ruled that an ordinance referring the question of an annexation to the voters was not general or permanent. The Arkansas Supreme Court has also ruled that an ordinance to enter a contract such as a utility franchise is not of a "general or permanent nature" and thus need not be read three times. Barnett v. Mays, 153 Ark. 1, 239 S.W. 379 (1922). The fact that a franchise runs for a long period of time does not make it "general or permanent." El Dorado v. Citizens' Light and Power Co., 158 Ark. 550, 250 S.W. 882 (1923).
QHow many subjects may an ordinance cover? AArk. Code Ann. § 14-55-201 provides that "no bylaw or ordinance shall contain more than one (1) subject, which shall be clearly expressed in its title." However, an ordinance may contain subcategories that pertain to a single, overall subject. See, for example, Craft v. City of Fort Smith, 335 Ark. 417, 984 S.W.2d 22 (1998), in which the court held that an ordinance dealing with street design was valid even though it covered both landscaping and signage requirements. QMust votes on ordinances be taken by a roll-call vote? AArk. Code Ann. 14-55-203 provides that in voting on an ordinance the yeas and nays shall be called and recorded. It does not specifically require a "roll call" vote in so many words, although this may be implied. A roll call vote would certainly be clearer and easier to record and follow. Some councils have a roll call on each vote. The following provisions do specifically require a roll-call vote: Ark. Const. Amendment 7 (when enacting an emergency clause or repealing an initiated measure); 14-164-329 (abolishing tax); 26-75-210 (abolishing sales tax).
QHow many votes are needed to pass an ordinance or resolution? AOrdinarily, a majority of the entire council is required to pass any bylaw, ordinance, resolution or order. Ark. Code Ann. § 14-55-203. A majority is whatever number it takes to have more than half. On a five-member council, this would be three, a six-member council would require four, and so forth. Some actions require a two-thirds vote to pass. See, for example, Ark. Const. amend. 7 (enactment of emergency clause); Ark. Code Ann. § 14-40-302 (annexation of lands contiguous to the municipality); 14-42-304 (amendments to city charter); 14-43-504; 14-44-107; 14-45-105 (override of mayor's veto); 14-55-202 (suspending the reading requirement for ordinances); 14-55-301( referral of ordinances to voters); 14-58-401 (borrowing against property tax in first class city); 14-164-329 (industrial development bonds not to be issued); 19-11-801 (designation of professional services); 26-77-102 (establishment of license fees and taxes). Other statutes require a two-thirds vote to override mayoral appointments and removals: 14-42-110 (department heads); 14-42-422 (director of department of public safety); 14-44-111 (marshal in second class city). The two-thirds requirement also applies to the council's power to remove various commission and board members: 14-49-211, 14-50-210, 14-51-210 (civil service commissioner); 14-88-305 (board of improvement or member); 14-122-106 (drainage improvement district board members); 14-141-106 (auditorium commissioner); 14-184-111 (business district board members); 14-201-108 (utility commissioners); 14-234-305 (waterworks commissioners); 14-264-103 (hospital commissioners); 14-269-202 & 302 (parks commissioners); In some cases, the law requires confirmation by a two-thirds vote of the council for commissioners appointed by the mayor. Ark. Code Ann. § 14-201-105 (utility commissioners of first class cities); 14-234-304 (waterworks commissioners). Note that on a six member council, a two-thirds vote is the same as a majority: four. On other councils, a two-thirds vote should be calculated by rounding up to the next number needed to constitute 2/3. For example, two-thirds of eight is 5.33, so it would take six members of an eight member council to constitute a two-thirds vote. See Atty. Gen. Op. No. 94-128.
QWhat if some members are absent. Does it then take fewer votes to pass? ANo. You still must have a majority (or in some cases, two-thirds) of the entire council. For example, if two members of a six-member council are absent or abstain, a three-to-one vote would not be sufficient, as three is not a majority of six.
QHow many members must be present in order to have a vote? AA quorum consists of a majority of the whole number of the council. Ark. Code Ann. § 14-43-501(a)(2)(A) (first class cities); Ark. Atty. Gen. Op. No. 96-384; (second class cities); Ark. Code Ann. § 14-45-101(b)(incorporated towns). For example, three council members are needed on a five-member council, four are required on a six-member council, and so forth.
QIs either the number of votes or the number needed for a quorum affected when voting to fill a vacancy on the council? AYes as to the number of votes, no as to the need for a quorum. Ark. Code Ann. § 14-42-103 provides that a vacancy may be filled by a "majority of a quorum of the whole number of the governing body." Thus, on a six-member council three favorable votes out of the remaining five members would be sufficient. Ark. Atty. Gen. Op. No. 97-265. However, if the mayor voted, four votes would be required to pass as there would then be six possible votes in all.
QCan the mayor be counted as part of the quorum? AIn cities of the first class, the mayor shall have a vote to establish a quorum of the council at any regular meeting of the council. Act 354 of 2001, Ark. Code Ann. § 14-43-501(b) (emphasis added). In second class cities, the mayor has a vote to establish a quorum of the council, with no restriction as to special or regular meetings. Ark. Code Ann. § 14-44-107. Thus, on a six-member council, if only three aldermen show up, the mayor could be the "fourth" needed to establish a quorum in accordance with the foregoing statutes.
QWhen can the mayor vote? AWhenever the mayor's vote is needed to pass an ordinance, bylaw, order or resolution. Ark. Code Ann. §§ 14-43-501 (first class cities); 14-44-107 (second class cities); 14-45-105 (incorporated town); see also Gibson v. City of Trumann, 311 Ark. 561, 845 S.W.2d 515 (1993). An obvious example is when the vote is tied, for example, three-to-three on a six-member council. The mayor could cast the fourth vote needed for passage. A tie is not the only situation in which a mayor's vote might be needed to pass, however. For example, in question 2 we had a 3-1 vote on a six member council. This could be the result of absence and/or abstention of two council members. We don't have a tie, but three votes is not enough for passage. The mayor may cast the fourth vote in order to pass the item. Suppose the vote in the foregoing scenario is 2-2. The mayor cannot vote to "break the tie" because his vote would only create three in favor, again not enough on a six-member council. There are two exceptions to the mayor's right to vote for passage of an item. The Arkansas Supreme Court has ruled that a mayor may not vote to amend or repeal an initiative measure enacted by a vote of the people. Thompson v. Younts, 282 Ark. 524, 669 S.W.2d 471 (1984). In addition, the Mayor may not vote to enact an emergency clause. Ops. Atty. Gen. No. 96-155; 85-174.
QCan the mayor vote against an ordinance, resolution, etc.? ANo. The mayor may only vote for a measure, and then only when necessary to pass it. See answer to previous question. Note, however, that if the mayor is needed to make up a quorum, then he or she can defeat a measure by abstaining, since a quorum consists of a majority.
QIn a first class city, if the mayor is out of town and an alderman presides at the council meeting pursuant to Ark. Code Ann. § 14-43-501(b)(2), can the presiding alderman vote? AProbably so. The statute does not say one way or the other. However, there does not appear to be any reason to deprive an alderman of a vote merely because he or she is temporarily presiding over the meeting. Note that mayors can vote under certain circumstances, so it would not appear to be the policy of the state to prohibit a presiding officer from voting. See Ark. Code Ann. 14-43-501.
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