City Attorney Agrees, “Mayor’s Special Meeting Vote Was Lawful”
October 28th, 2015 by iPhone
Wednesday letter from City Attorney to City Council Members.
Last night, Councilman Leonard questioned the legality of the moayor’s vote to break a tie at the special meeting held to consider the referral to the electors of a sales tax to fund a proposed civic center.
As all of you are aware, the council voted 4-4 on the question and the mayor voted in the affirmative to pass the motion. Both myself and Michael Moyers, bond counsel with Friday, Eldridge & Clark, agreed and advised that night that the action of the council and the mayor were lawful.
I have reviewed the matter further this morning and the Mayor has conferred with me and also with Mr. Moyer and with Mark Hayes, general counsel with Arkansas Municipal League. All of us agree that the mayor’s vote at the special meeting was lawful and that the matter passed according to law.
Also attached is a copy of the relevant portions of the statute, as it has existed in the past. The clear wording and ordinary language of the statute establishes that the mayor may vote to establish a quorum at a regular meeting and may vote in order to pass a measure, with this power not being restricted to a regular meeting. There was no ambiguity in the prior law and the Arkansas Supreme Court nor the Arkansas Court of Appeals have ever ruled otherwise. A prior case is attached. It does not deal with the special election question, but it does show the court’s reasoning and the strength of the statute authorizing the mayor to vote to pass a measure.
The matter became even clearer with the enactment of the new version of ACA 14-43.501. A copy is also attached. As you can see, the limitation on the mayor’s vote to establish a quorum is no longer limited to a regular meeting. There is no longer any differentiation between a regular meeting and a special meeting on any issue in the statue. The attached version of the “new” statute is what was the law at the time of the special meeting.
It remains that the actions of the council and the mayor at the special meeting were lawful and the matter passed consistent with law.
If now or at any time, any member of the council has a question about this issue or any other issue, you are invited to contact me.
Whit Barton
The Barton Law Firm
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Older article: Alderman “Disrespected” by Mayor After Asking Event Center Questions
May I ask…….is this the SAME city attorney who reviewed and approved the Siemens fiasco? Perhaps we should go ahead and hire a second attorney for an opinion BEFORE we sink millions into the project.
No no no
Alderman Leonard’s initial question was “Doesn’t it take a 2/3 vote in order to put that initiative to the vote?”
Mayor Tucker responded, “No, it took a 2/3 vote to suspend the rules requiring to read, be read in full and on three separate occasions and we did have the 2/3 vote at that time.”
The fact is that voting to suspend the rules for reading the ordinance has nothing whatsoever to do with voting to send the ordinance to the voters at a special election.
Whit Barton failed to correct the mayor’s response and again allowed the Council to be misled. Alderman Leonard was exactly right, but his question was deflected by the mayor.
Here is the requirement from Arkansas state law:
The city council may, within thirty (30) days of the adoption of any ordinance, refer the ordinance to the electors for their acceptance or rejection by a two-thirds (2/3) vote of the members of the council. A.C.A. 14-55-301(b)
The ballot question for the “Event Center” tax is illegal.
Why is this being done in obvious secrecy? Why is the Mayor skirting council members questions? Why rush it through the process for a December vote when everyone is busy with Christmas? Anything done in dark will be brought to light. Look at the Siemans mess this same bunch barreled through, if they can’t be trusted with that, how can the Mayor and his buddies be trusted with this? This is not good for our city, there are too many unknowns. If it is good, they should be taking their time with open explanations. Monticellonians, this is an attempt to saddle you with a large debt for a building on the UAM campus. This is not right, and we haven’t even discussed the proposed swimming pool they intend to add. Whoever heard of such? A convention center with a swimming pool? Really?
If you read the post, you can notice this opinion was not Mr Barton’s alone. He said in his letter he got the opinion of Mr. Moyers of the Friday Firm (the largest lawyer firm in Arkansas and who was at the council meeting) and Mark Hayes, the lawyer for the Arkansas Municipal League.
Also, if you simply search the law, Ms. Mays’ posted, you will notice she picked and chose her quote. Here is the full statue.
14-55-301 Proposed or adopted ordinances
(a) The city council or governing body of any municipality, by a majority vote of its members, may refer any proposed ordinance to the people for adoption or rejection.
(b) The city council, or governing body, may at the time of, or within thirty (30) days of, the adoption of any ordinance refer the ordinance to the electors for their acceptance or rejection by a two-thirds (2/3) vote of the members of the council.
(c) The action of the city council shall constitute a referral to the people, and from that point the procedure shall be that as required by Arkansas Constitution, Amendment 7.
The statue clearly to me reads that if council is referring a proposed (or new) ordinance they need a majority vote; but if they are referring an adopted (or old; passed 30 days ago) ordinance they need 2/3rd vote.
Wasn’t this a new ordinance before the board? I think that was the complaint of one board member in the meeting; as they were not paying attention to the month of news about the project before the ordinance was presented to them.
I think if you are against the project, then vote that way on election day. But stop using the news as a platform to smear and attack folks. This negative attitude that is against everything new in our community; an attitude to fight progress is what has held our community back. If we are to see real growth, like the Northwest and Northeast corners of our state, than we need to learn to work together county & city & residents & leaders.
You don’t see this time of negative attitude on the Rodgers or Jonesboro City Council, because they see the vision of the future and work together!
Let’s work together to against each other. Because we are all we have.
To Asinine….Doesn’t Star City (population approx: 2200 people) have an event center with a public indoor swimming pool?
Asinine, what is being done in secret??? How can it be a secret if it is on MonticelloLive and many comments are being made about it? Get off your butt and go to the meetings to educate yourself. Read our weekly paper the Advance……. come on, you are a better person than that.
The person who entered the false name “I’m not a lawyer but I can read” insinuated that I “picked and chose” a quote for some nefarious purpose that he/she did not identify. What I actually did was to cite the portion of the Arkansas Code that is relevant to the question that Alderman Leonard asked. Ordinance 799 is not a proposed ordinance; it was adopted by the City Council on October 6. Therefore, 14-55-301(a) does not apply.
The person who entered the false name “I’m not a lawyer but I can read”, in addition to including numerous misspellings, grammar, and punctuation errors, misinterpreted section 14-55-301(b). The statute clearly states that an adopted ordinance must be referred to the electors within 30 days of adoption by a 2/3 vote of the members of the council. There is no reference to an “old; passed 30 days ago” ordinance. The phrase “within thirty (30) days” means less than or equal to 30 days, not “old; passed 30 days ago.”
There are several sections of the Arkansas Code with which local sales and use tax levies and bond issues must comply. I have audited this ordinance against all of them and made a 5-page list of findings. If the person who entered the false name “I’m not a lawyer but I can read” expects his/her statements to carry any weight whatsoever, he/she needs to do the same research, post his/her findings using his/her true legal name, and stick to the facts, refraining from using emotionally charged language (e.g. “smear and attack folks”, “negative attitude that is against everything new”, “an attitude to fight progress”).
Holding elected officials and government employees accountable to the law, to good stewardship over public funds, and to the will of the people is not “having a negative attitude” or “fighting progress.” It is the duty of every citizen.
Why is it that every time they raise taxes, most often a sales tax increase, which hits the poor people the hardest, there is no out cry against it. They frame it as what we need to progress, but in fact, it is only making the poor people poorer. Those that will likely not utilize the facilities that they are paying for. How about let’s do more to help people keep the money they earn and not take any more in taxes. That is progress!!!