SILOAM SPRINGS -- City directors began the first meeting of 2023 on Jan. 3 by tabling a resolution regarding procedures and organizational matters of the Board of Directors.
City Administration Phillip Patterson presented the resolution, saying Arkansas State Act 235 of 2015 requires that all governing bodies of cities and towns have an organization meeting in the beginning of January to determine the orders of proceedings.
Patterson proposed amending the section concerning the mayor's veto which would limit the mayor's time to submit the veto from five days after the board decided on the issue vetoed to three days.
"I tried to craft an amendment that was related to both the state statutes §14-48-111(b) and §14-48 120(g)," Patterson said. "It's up to the board as to whether or not you wish to amend those rules and regulations or not."
Mayor Judy Nation asked for public comment, which there was none, and then for comments from the board, which there was also none. Nation asked for a motion to approve the resolution, which was made by Director Carol Smiley and seconded by Director Reid Carroll.
Before voting began, Director David Allen asked if the board was going to get to discuss the issue. Nation told Allen she had asked for comments and questions from the board but there were none. She asked Allen if he wanted to have a discussion. Allen said yes.
Carroll withdrew his motion, and Allen said he wanted to offer an amendment to the motion and then asked City Clerk Renea Ellis to pass out a document to the other directors.
"I am making a motion to amend the board rules by the page that I have handed out," Allen said.
Director Mindy Hunt asked if the procedures in the board packet were the same as what Allen handed out.
"There's things that I've asked for before and it was ignored," Allen said. "So I decided to ask for them in the board rules."
Allen's amendments
One of the first changes involved placing contracts and approvals on the list of regularly scheduled items instead of the consent agenda.
A second item was reversing the order of speaking during presentations where the board members spoke first followed by public comment. Allen said this is the way it was until Mayor John Mark Turner changed the order.
Smiley said she did not remember that.
"Mayor Turner changed that," Allen said. "It had always been the Board of Directors who had the first opportunity to ask questions of staff, and the reason was, the thought was that many of the audience questions could be answered by what staff had asked."
The next item on the list revolved around the order of seating of the directors. According to the amendments, the directors would sit in order of position starting at one and going to seven, like they were presently sitting.
Allen said he added this because when he first started back on the board, the directors were placed in different spots other than their assigned seats.
Voting was the next subject on the list. In order to suspend the rules on an ordinance and read it by title only it would require only four votes, the list states. Also an emergency clause would require five votes, the list states.
City Attorney Jay Williams said state law requires five votes and cannot be changed by city policy. Allen asked what would happen if there were only four directors present.
Williams told Allen if only four people show up, then the city must go by the vote of the four directors. Patterson said the board could also table it until there is a majority.
"I was trying to be practical that if we only had a quorum because the quorum is four people," Allen said.
Veto power
The next item on the list had to do with the mayor's veto power. The present regulation according to §14-48-111(b) and §14-48-120(g) allows for "The mayor to veto all decisions made by the board of directors, other than personnel including any motion, ordinance, or resolution, or part thereof, adopted by the board within three days of the board's vote and deliver to the mayor."
The regulation also states that, "Before the next board of directors meeting the mayor shall file in the city clerk's office a written statement of reasons for the veto, which can be overridden at the first board meeting following the veto with two-thirds majority or five affirmative votes."
Allen's proposed amendment states that, "The mayor has the power to veto any ordinance, resolution or order other than personnel passed by a majority of the Board of Directors and/or adopted by the Board of Directors within five days of the Board of Directors vote at which time the mayor shall file in the city clerk's office a written statement of the reasons for the veto."
The proposed amendment continues on that, "The mayor's veto statement will be communicated to the Board of Directors by the city clerk immediately upon receipt of the statement of veto and at the first Board of Directors meeting following the veto may override the veto by a two-thirds majority or five affirmative votes."
Allen said he kept the five days because the board has been doing it for years. Director Lesa Rissler asked Williams if the state allows for three days and the city of Siloam Springs required five days, can the rules be amended to be more stringent than state standards.
Williams said if he understood her question then the answer would be no.
"I mean the state law, whatever power is granted by state law, the board cannot take away," Williams said.
Rissler said one attorney told her the rules can be made to be stricter. Williams said he does not believe the city can make their rules more stringent. Allen said the city has done that repeatedly by having above and beyond what state law requires.
"Every city has the opportunity to do that; otherwise they would just have blankly, blindly everything in their statutes as state law," Allen said.
Patterson said he thinks Rissler is correct that in certain areas the city can be more restrictive but in other areas it could not and referenced the mayor's veto power. Patterson said he believes that Williams referenced case law or attorney general's opinion that cities cannot restrict authority given to elected officials by the state.
Rissler said for the last three years the board has been asked to vote on the issue of the mayor's veto power and read part of the portion which states the mayor has the power to veto any ordinance, resolution or order other than personnel or part thereof adopted within five days, Sunday excluded, at the board of directors vote.
"So you've been telling me for the last three years you've been asking me to vote on this, and it doesn't even apply? Is that what I'm being told?" Rissler asked.
Patterson said at the beginning of the discussion that when the city adopted these regulations in 2016, they were under the gun and looked at some recommendations from the Arkansas Municipal League.
"We looked at what other cities were doing and the goal was to base it on those particular issues related directly to state statutes," Patterson said.
The city found additional issues that came up in December, and Patterson said he thinks the city had not foreseen the issue that came up.
In trying to research what options there were they came across the other provision under the mayor's authority which states that any decision of the board could be vetoed, he said.
"What I was proposing to do as I stated earlier in my presentation was to try to conform that particular section of the procedurals to what is state statute," Patterson said.
Rissler said what applied before still applies and that the board is required to follow those rules and the state statute still applies also as a basis.
Patterson said Williams believes the mayor's authority is granted by the state and supersedes city regulations. This prompted Rissler to ask why this was placed in the rules and procedures before.
When putting together the procedural rules to look at what state statutes say, staff found §14-48-120, which states the mayor would have a period of three days from the date of the board meeting, Patterson said.
All ordinance resolutions and motions adopted by the board at a regular meeting shall be delivered to the mayor within 48 hours after adoption, Patterson said.
Furthermore the mayor shall have a period of three days from the date of receipt of any ordinance or resolution adopted by the board to approve or veto, Patterson said.
"That was what we originally based that section on and based on what occurred in December going back and looking at what the mayor's authority is under state statute," Patterson said
"The mayor shall have the power to veto over all decisions made by the board except matters related to city personnel ... and when this came up and we found this other state statute that's when I felt it was appropriate at least for me as your city administrator to propose the amendment to conform with state statutes because that's what it needs to be because it doesn't appear that authority granted by rules and reg of the city board."
Patterson said amending the city regulations can happen with other rules and regulations at times, but when there is specific authority granted to an elected officials, it doesn't appear that the board can restrict that authority, so this was an attempt to try to straighten that out.
Seeking guidance
Rissler said she submitted them to the Arkansas Municipal League for comments so if the city gets in legal hot water they're there to represent the city.
The Arkansas Municipal League did respond to Rissler's inquiry, according to an email forwarded by Rissler. After reviewing the city board meetings from December, Senior Legal Counsel of the Arkansas Municipal League Lanny Richmond II stated the following in an email to Rissler:
"A mayor may veto actions made by the board of directors under Ark. Code Ann. § 14-48-120 and § 14-48-111. From my reading of the statutes an action by the board typically requires four affirmative votes. Ark. Code Ann. § 14-48-120(a)(2) ('an affirmative vote of four (4) or more members shall represent the action of the board, ...'); see also 14-48-111(a)(2) (requiring all contracts to be 'approved by the board of directors[,] ...').
"Reading these statutes together, a mayor in a city administrator city may veto any action by the board of directors which receives four (4) or more affirmative votes.
"However, it is my understanding that your City Attorney has a different opinion defining 'decision' under the relevant statutes. Our office always defers to local attorney to advise on local matters."
Allen continued his point by asking to read the full definition of the mayor's role in a city administrator form of government.
After doing so, Allen said if the board is going to look at what was quoted in the veto letter by the mayor then the board also has to look at what was written in the city's board rules because that was quoted as well as the state definition.
But Allen also said that Williams did not reference the city board rules in which the mayor has the power to veto any ordinance, resolution or order other than personnel adopted by the board within five days. Allen said adopted was the key word.
"I don't care if it's three days, five days, a week, whatever," Allen said. "It's a matter of that the board didn't know about it until it came out to the public, so I added that because that's something that was of concern. The other thing is that you simply cannot consider a decision that can be vetoed something that did not occur, because by doing so you've now instituted a contract that was not approved by the board."
Packet availability
The next item involved posting the city board packet seven days before a meeting instead of five days. Allen said it would only be two days earlier and he has repeatedly asked that it be released earlier because when a federal holiday falls on a Monday the board does not have enough time to ask staff questions.
Patterson asked if he could have one meeting before implementing this so he can rearrange schedules. Hunt asked for a compromise of having the packet released six days before the meeting instead of seven. Allen refused the compromise.
Director Betsy Blair-Finn asked to add an addendum under duties and privileges of directors at board meetings to address financial interest of family members.
After some more discussion. Hunt made a motion to table the resolution until the next board meeting so that staff can work on amendments to the rules and procedures proposed by Allen. The motion was seconded by Carroll.
The directors tabled the resolution with a vote of 5-2 with Hunt, Director Ken Wiles, Blair-Finn, Carroll and Smiley voting to table the resolution and Allen and Rissler voting against.
The meeting began with the swearing in of new and reelected directors. Since Blair-Finn, Rissler and Wiles had gone to be sworn in at the Benton County Courthouse in Bentonville the previous day, only Hunt was sworn in by Ellis.
Following the swearing in, the board voted to elect Allen to the position of vice mayor. Allen will hold this position for two years.