Local laws at risk

Due to oversight

— Fort Smith passed an ordinance back in 1983 that boosted the city’s sewer rates.

Then it began collecting those increases from ratepayers each month.

But the city failed to follow state law by publishing the ordinance in the local paper until two years after it had been enacted. When the legality of that delay was challenged, the state Supreme Court invalidated the ordinance altogether.

The justices ordered that the affected ratepayers be refunded every cent of the increase they’d been paying all those months.

Write that one down as one big expensive “public service” oversight.

The court also determined that the law makes it mandatory for a city to either publicly post or publish new ordinances in the local newspaper for them to become legal. This means that every community needs to pay attention whenever it enacts an ordinance.

Which brings me back once more to the nostril-deep mucky mess under way in little Elkins.

I told you a while back that thecommunity just southeast of Fayetteville has found itself mired in some legal quicksand after inexplicably failing to post or publish all of its ordinances in legal fashion for a lot of years.

In fact, Kyle Mooty, general manager of The WhiteRiver Valley News, reports that the Elkins City Council hasn’t been in compliance with the law since the newspaper began publishing in Elkins.

“By its own admission, before 1999 the city hadn’t posted its ordinances despite the law,” he recently wrote.

That represents scores of now legally questionable ordinances, my friends, and I’m wondering who, if anyone, will be holding the city’s feet to the fire.

The relevant law is Arkansas Code 14-55-206(a)(1)(A), which says that all bylaws or ordinances of a general or permanent nature and all those imposing any fine, penalty or forfeiture shall be published in some newspaper published in the municipality. Section B also tells cities that they can post their new ordinances in five public places if no newspaper is published in that particular town.

“There is no gray area,” Mooty writes. “There is no misunderstanding of any legal interpretation. There are no ifs, ands or buts as to what Elkins must do to become in compliance and perhaps stave off what could be a storm cloud of lawsuits just ready to rain down on city hall. . . . This should have been brought up and corrected long ago.”

One of the finer understatements I’ve read in a while. I commend Mooty and his little paper for revealing such an important and unbelievable lapse in good governance.

His work represents what journalism can-and should-do in every community where there’s a newspaper or media source of information.This kind of reporting is the stuff of the First Amendment and why it exists, to encourage watchdogs over government’s failure and excesses.

I’m now wondering if any other smaller communities across the state have failed to legally publicize ordinances they have passed. Has anyone else checked his own city?

One thing about this story: Either the city followed this law (which is also backed up by an attorney general’s opinion) or it didn’t. There’s really no shade of gray to debate.

The issue could have been easily avoided. Elkins city leaders and the city attorney, Danny Wright, needed only to contact the Arkansas Municipal League to learn what’s legally expected when passing ordinances.

When Mooty asked Wright what he, as the city’s only legal expert,believed would happen should all the ordinances enacted by the council be deemed invalid, Wright responded that he had “no idea.” Oh, Danny boy!

Now there’s apparently a shell-and-pea plan being hatched that would changethe Elkins ordinances to resolutions, which legally don’t have to be posted or published. Only problem with that is that a city’s resolutions, unlike laws, aren’t legally enforceable.

Elkins’ incoming mayor, Bruce Ledford, definitely has a tiger to wrestle barehanded right off the bat. Regardless of what happens with all those unpublicized ordinances, he’s got to exercise leadership and get the city government back on the highway of legally acceptable procedures.

And who can say if someone in town will file a lawsuit to challenge the legality of what’s already been done there?

Tree lovers

Let it never be said that Fayetteville doesn’t love its many trees. It loves them enough during especially tough economic times, with significant revenue shortfalls, to spend nearly $7,000 to plant 15 replacements for those damaged or killed along College Avenue.

That includes the city’s equipment and labor for an average cost of around $460 a tree.

It’s reassuring that as the holiday season is upon us the city has thousands of tax dollars to invest in preserving the verdant canopy of one of its primary streets.

We can rejoice that it’s not yet another round of tax-paid “improvements” to Block Street.

Mike Masterson is opinion editor of the Arkansas Democrat-Gazette’s Northwest edition.

Editorial, Pages 17 on 11/27/2010

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