Press Releases

Question 1: In a city of the second class, is the mayor considered the chief executive officer?

Brief Response: No. Unlike the mayor of a city of the first class, the mayor of a city of the second class is not designated by statute as the city’s “chief executive officer.” Instead, the mayor serves as the city’s principal officer. And, as this Office has previously concluded, executive authority in a city of the second class generally resides with the city council unless state law or local ordinance provides otherwise.

Question 2: If the answer to Question One is yes, aside from the duties described in 14-44-107, are there any responsibilities that are inherent to or “compatible with the nature of” the office of chief executive such that they cannot be prescribed by ordinance to the recorder-treasurer of a city of the second class? Said differently, may a city of the second class pass an ordinance transferring supervisory authority that is traditionally held by a chief executive—such as hiring, firing, contracting, and operating authority—to the recorder-treasurer?

Brief Response: Although the answer to Question One is no, the remainder of your question raises a valid issue regarding the allocation of authority among municipal officers. A city of the second class may generally transfer to the recorder-treasurer authority that state law does not expressly grant to the mayor. However, a city may not transfer powers that state law vests exclusively in the mayor or the mayor’s duly authorized representative, such as the authority to contract on the city’s behalf.

Question 3: Is it possible for a city of the second class to pass an ordinance in violation of the separation of powers doctrine by empowering a recorder-treasurer to exercise traditionally mayoral authority?

Brief Response: The separation-of-powers doctrine does not apply here. That doctrine “is not usually applied to municipal corporations and has never been regarded as fully appropriate in the performance of municipal functions.”

Question 4: Is it a conflict of interest or a violation of proper financial oversight principles for a recorder-treasurer in a city of the second class to serve as a voting member of the city’s finance committee while simultaneously exercising financial control responsibilities?

Brief Response: There may be a conflict of interest in one person holding the office of recorder-treasurer while also serving as a voting member of the city’s finance committee. Only a finder of fact can make an ultimate determination based upon all the attendant circumstances, and I am not empowered to act as a factfinder when issuing opinions.

Question 5: Under Article 5, section 1, has a city sufficiently stated “the fact which constitutes [the] emergency” if the emergency clause only states the following:

Emergency Clause: That this Ordinance being necessary for the immediate preservation of the public peace, health, and safety, an emergency is declared to exist. Therefore, this ordinance shall be in full effect and force immediately after its passage.

Brief Response: A reviewing court would likely find that this emergency clause fails under Article 5, § 1 of the Arkansas Constitution because it fails “to state the fact which constitutes such emergency.”