Municipal Law in Arkansas Questions and Answers Revised May 2016 MUNICIP S AL A L S E N A A G K U R E A « « G E R T E A A T T S C T IT A IE E S GR MAKE A ARKANSAS MUNICIPAL LEAGUE TABLE OF CONTENTS INTRODUCTION . 2 FINANCIAL AFFAIRS . 15 Budgeting .......................... 15 DISCLAIMERS . 2 Bidding Requirements .................. 15 Debt .............................. 16 AMERICANS WITH DISABILITIES ACT (ADA) . 3 Donations .......................... 17 BOUNDARY CHANGES . 3 Fees .............................. 18 Investments ......................... 18 BUILDING AND CONSTRUCTION . 4 Property ........................... 18 Street Turnback Funds.................. 18 COURTS AND LAW . 5 Bond on City Officials ................. 19 Lawsuits Against Cities .................. 5 Taxes and Fees ...................... 19 District Courts ........................ 5 County Courts ........................ 6 FIRE PROTECTION AND DEPARTMENTS . 21 ELECTED AND APPOINTED OFFICIALS . 7 FREEDOM OF INFORMATION ACT . 22 Recorders and Treasurers ................ 7 Meetings........................... 22 Conflicts of Interest and Multiple-Office Holding 7 Executive Sessions .................... 23 Salaries ............................ 9 Records ........................... 23 Terms of Office ....................... 9 GOVERNING BODIES . 25 ELECTIONS . 10 Municipal Powers .................... 25 Eligibility for Office ................... 10 Meetings........................... 25 Filing Deadlines...................... 10 Vacancies .......................... 26 Runoff Elections ...................... 11 Ordinances and Voting ................ 27 Campaign Rules ..................... 11 POLICE AND LAW ENFORCEMENT . 30 Campaign Finance.................... 11 STREETS . 31 EMPLOYMENT LAW . 12 Drug Testing ........................ 12 UTILITIES . 31 Family and Medical Leave Act (FMLA) ...... 12 ZONING AND LAND USE . 33 Harassment and Discrimination ........... 12 Manufactured/Mobile Homes ............ 33 Hiring and Firing Employees ............. 12 Supervision of Employees . 13 COMMUNICATIONS . 35 Uniformed Employees.................. 13 Military Leave ....................... 14 PUBLICATIONS LIST . 35 1 Introduction The legal staff of the Arkansas Municipal League daily receives dozens of communications from city officials and employees who have questions about legal issues affecting them and their cities and towns. This booklet is a compilation of some of those questions, arranged by subject matter. It is intended to complement the Handbook for Arkansas Municipal Officials, which contains the most essential statutes and case notes relevant to municipalities. Most of the statutes from the Arkansas Code Annotated (A.C.A.) cited herein can be found in the Handbook. A few may not be, so contact your city attorney or the League legal staff if you need a copy, or search online at https://www.lexisnexis.com/hottopics/arcode/. A web browser search for “Arkansas Code Online” will also work. This publication also refers to Arkansas Attorney General Opinions. These may be found online at http://www.arkansasag.gov/opinions/index.php, or simply search for “Arkansas Attorney General Opinions.” Finally, we refer throughout to other publications, which may prove useful, and have included at the end a list of publications available from the League. Order or download them from the League website, www.arml.org, or call 501-374-3484, Ext. 248 to request hard copies. Disclaimers The information contained in this book is not intended as legal advice for any specific case. Only the most recent version should be used, though bear in mind that the law may change prior to a new edition. Readers are responsible for consulting with legal counsel when questions arise concerning the application of the law to a particular set of facts. This book is intended solely for educational and informational purposes. 2 Americans with Disabilities Act Q: Where can I get more information about the ADA? A: The U.S. Department of Justice has a toll-free ADA (ADA) information line staffed by specialists to answer your See also the Municipal League publications Americans questions, 800-514-0301. In addition, an automated with Disability Act Compliance Guide and Understanding service allows callers to listen to recorded information Municipal Personnel Law and Suggestions for Avoiding and order publications. The number is 800-514-0383. Lawsuits. You can also find information online at www.ada.gov. Q: Can the mayor or city attorney act as the ADA These services are not for employment-related ADA coordinator for the city? questions, however. The federal Equal Employment Opportunity Commission (EEOC) website, A: While it would be permissible for either the mayor www.eeoc. gov, provides information on a range of or city attorney to hold this position, it would be employment law issues, including those raised by desirable to have a permanent employee fill this spot. the ADA. Since elected and appointed officials come and go, it would be advantageous to have someone develop the expertise and experience over a longer period of time Boundary Changes in this critical area. (Annexation, Consolidation, etc.) Q: Does the ADA apply to persons who are being See also Municipal Annexation, Incorporation and Other arrested? Boundary Changes. A: Yes. The U.S. Court of Appeals for the Eighth Circuit Q: What are the proper procedures for reporting (which includes Arkansas) has held that the ADA boundary changes in Arkansas? What state and local applies during an arrest (Gorman v. Bartch, 152 F.3d offices should be contacted when we have a bound- 907 (8th Cir. 1998)). Gorman, a wheelchair-user, ary change? requested that police officers help him get back into a bar that had just ejected him. When Gorman began A: The statutes dealing with annexation, detachment to argue with the officers, they arrested him. Because and consolidation (A.C.A. §§ 14-40-303, 14-40-605, the patrol wagon that arrived was not equipped with and 14-40-608) provide for filing in the county clerk’s wheelchair restraints or a wheelchair lift, officers office. A.C.A. §§ 14-40-605 and 14-40-608 require placed Gorman on a bench and used his belt and a filing with the county clerk, who is required to notify seatbelt to secure him to the mesh wall behind the the Tax Division of the Public Service Commission. bench. In transit, the belts loosened, and Gorman These statutes require the filing of a map and other fell to the floor. He required surgery for the resulting listed documents. injuries he received. The ADA prohibits discrimina- In addition, a new law, Act 914 of 2015 (A.C.A. tion in the services of public entities. A United States § 14–40–101), now provides, “Before an entity Supreme Court decision held that state prisons fall undertakes an annexation, consolidation, or detach- within the statutory definition of a public entity. The ment proceeding under this chapter, the entity shall Eighth Circuit determined that a police department, coordinate with the Arkansas Geographic Information like a state prison, is a public entity and that the trans- Systems Office for preparation of legal descriptions portation of an arrestee is a program or service of the and digital mapping for the relevant annexation, police department. The police department’s failure to consolidation, and detachment areas.” provide adequate transportation for disabled persons was therefore discriminatory under the ADA. 3 Building And Construction is $50,000 or more (A.C.A. § 22-9-204, as amended by Act 1048 of 2015). However, an exception is made for Q: Is the city required to use an architect or engineer projects designed to meet the city’s need for utilities on building or other construction projects? (A.C.A. § 22-9-201). A: The answer depends on the type and cost of the Note that A.C.A. § 22-9-204 does not state that it project. Generally, the law requires the assistance and applies to cities, but only to work done for the State supervision of a registered professional engineer or of Arkansas. However, because A.C.A. § 22-9-201 architect (A.C.A. § 22-9-101). However, this rule does mentions an exception for city utility work, it appears not apply to: that the Legislature meant to apply A.C.A. § 22-9-204 a. engineering projects that do not exceed $25,000 to cities, according to the Arkansas Attorney General b. architectural projects that do not exceed $100,000 (Ark. Atty. Gen. Op. No. 91-352). c. municipal projects planned and executed accord- Q: If the city does its own contracting, is it considered ing to plans and specifications furnished by an a “prime contractor” under A.C.A. § 22-9-204? authorized state agency. A: The Attorney General has issued an opinion that These amounts apply to the fair market value a school district doing its own contracting is not a of the capital improvement (A.C.A. §§ 17-15-302, prime contractor subject to the statute’s requirements 17-15-307). The law sets forth criminal penalties and (Ark. Atty. Gen. Op. No. 94-401). civil remedies for violations in A.C.A. §§ 17-15-103 Q: Can we hire non-licensed contractors by dividing and 105. the project into segments costing less than $50,000? Q: Does issuance of a building permit require proof A: The law forbids dividing projects up in this manner that the contractor is licensed? with the intent to avoid the licensing requirements A: Yes. A.C.A. § 17-25-301 provides: (A.C.A. § 17-25-101(b)). However, situations may “Upon making application to the building inspec- arise in which the city is not trying to avoid the