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HomeMy WebLinkAbout2007-03-27 - Agendas - Final Aldermen Ward 1 Position 1—Adella Gray Mayor Dan Coody Ward 1 Position 2—Brenda Thiel Ward 2 Position 1 —Kyle B.Cook City Attorney Kit Williams1 Ward 2 Position 2—Nancy Allen 1PVWard 3 Position l—Robert K.Rhoads TayellCity Clerk Sondra Smith 11 Ward 3 Position 2—Robert Ferrell ARKANSAS Ward 4 Position 1 —Shirley Lucas Ward 4 Position 2—Lioneld Jordan Final Agenda City of Fayetteville Arkansas Special City Council Meeting March 27, 2007 A meeting of the Fayetteville City Council will be held on March 27, 2007 at 5:30 PM in Room 219 of the City Administration Building located at 113 West Mountain Street, Fayetteville, Arkansas. Call to Order Roll Call Pledge of Allegiance A. NEW BUSINESS: 1. Planning Commission Nomination Discussion: Discussion of the nominees for the Planning Commission. THE CITY COUNCIL APPOINTED CANDY CLARK, CHRISTINE MYRES AND SEAN TRUMBO TO THE PLANNING COMMISSION. THE MAYOR VETOED THE APPOINTMENT OF CANDY CLARK. THE MAYOR'S VETO WILL BE DISCUSSED AT THE APRIL 3, 2007 CITY COUNCIL MEETING. Meeting adjourned at 6:30 p.m. 113 West Mountain 72701 (479)521-7700 (479)575-8257(Fax) accessfayetteville.org Special City Council Meeting March 27, 6730 P-n Subject: Roll Motion To: Motion By: Seconded: Ferrell Yes Lucas Yes Jordan Yes Gray Yes Thiel Yes Cook Yes Allen Yes Rhoads Yes Mayor Coody Yes 9-0 Subject: Planning Commission Nomination Discussion Motion To: Go into Executive Session to discuss a personnel issue - Planning Commission Appointments Motion By: Grey Seconded: Ferrell Ferrell Yes Failed Lucas No Jordan No Grey Yes Thiel Yes Cook No Allen No Rhoads No Mayor Coody 3-5 Special City Council Meeting March 27, A7 Subject: Planning Commission Nomination Discussion Motion To: Appoint Matthew Cabe, Christine Myres and Sean Trumbo Motion By: Rhoads Seconded: Ferrell Ferrell Yes Failed Lucas No Jordan No Gray Yes Thiel No Cook No Allen No Rhoads Yes Mayor Coody 3-5 Subject: Planning Commission Nomination Discussion Motion To: Appoint Candy Clark, Christine Myres and Sean Trumbo Motion By: Cook Seconded: Allen Ferrell No Passed Lucas Yes Jordan Yes Mayor Coody Gray No Vetoed the Thiel Yes Appointment Cook Yes of Allen Yes Candy Clark Rhoads No Mayor Coady 5-3 Special City Council Meeting March 27, Subject: Planning Commission Nomination Discussion Motion To: Override Mayor's Veto Motion By: Allen Seconded: Rhoads Failed Ferrell No Override of Lucas Yes the Mayor's Jordan Yes Veto failed. Gray No Must have 6 Thiel Yes affirmative Cook Yes votes to Allen Yes override. Rhoads No Mayor Coody 5-3 Subject: Planning Commission Nomination Discussion Motion To: Appoint Matthew Cabe Motion By: Rhoads Seconded: Ferrell Ferrell Yes Passed Lucas Yes Jordan No Gray Yes Thiel Yes Cook Yes Allen Abstain Rhoads Yes Mayor Coody 6-1 ** Note: The veto override and appointment of Matthew Cabe may not have been a legal action at this time. City Attorney Kit Williams will research this action and advise. Special City Council Meeting Marcn 27, 2007 Subject: �Yv Motion To: Motion By: Seconded: Ferrell Lucas Jordan Gray ,�- Thiel Cook Allen vi Rhoads Mayor Coody Subject: ' Motion To: c ry lv~ Motion By: Seconded: �- Ferrell Lucas Jordan Gray Thiel • Cook N Allen Rhoads Mayor Coody Special City Council Meeting Mai_._. '27, 2007 Subject: P a Motion To: J Aa ,"J ~O Motion By: 1AAjo O Seconded: Ferrell Lucas Jordan Gray Thiel Cook AV Allen A/ Rhoads [Mayor Coody S ' s Subject: Motion To: Nooct e Motion By: eAA Seconded: / Ferrell Lucas � Jordan � Gray A 0� Thiel Cook Allen Rhoads Mayor Coody App®� V jV damp v / Aldermen Ward 1 Position 1—Adella Gray Mayor Dan Coody Ward 1 Position 2—Brenda Thiel Ward 2 Position 1 —Kyle B.Cook City Attorney Kit WilliamsPVj Ward 2 Position 2—Nancy Allen Ward 3 Position l—Robert K.Rhoads TayellCity Clerk Sondra Smith 11 Ward 3 Position 2—Robert Ferrell ARKANSAS Ward 4 Position 1 —Shirley Lucas Ward 4 Position 2—Lioneld Jordan Final Agenda City of Fayetteville Arkansas Special City Council Meeting March 27, 2007 A meeting of the Fayetteville City Council will be held on March 27, 2007 at 5:30 PM in Room 219 of the City Administration Building located at 113 West Mountain Street, Fayetteville, Arkansas. Call to Order Roll Call Pledge of Allegiance A. NEW BUSINESS: 1. Planning Commission Nomination Discussion: Discussion of the nominees for the Planning Commission. 113 West Mountain 72701 (479)521-7700 (479)575-8257(Fax) accessfayetteville.org A.I. Planning Commission Nomination Discussion Page 1 of 1 Nominating Committee Report Meeting Date: March 14, 2007 Room 326, City Hall 5:00pm Members present: Kyle Cook, Adella Gray, Shirley Lucas, and Robert Rhoads. The following is being submitted by the Nominating Committee to the entire City Council for consideration. Planning Commission Two committee members recommend the following candidates for appointment: Candy Clark—one term ending 3/31/10 Christine Myres—one term ending 3/31/10 Sean Trumbo—one term ending 3/31/10. Two committee members recommend the following candidates for appointment: Matthew Cabe—one term ending 3/31/10 Shelly West—one term ending 3/31/10 Sean Trumbo—one term ending 3/31/10. The full committee interviewed all planning commission applicants and proceeded to discuss each nominee. We talked about past practices of the nominating committee including reappointing applicants unless their attendance was lacking. We also discussed placing the most qualified candidates available on the commission and the past service of the three current members that have reapplied. This conversation continued for about 20 minutes until I requested we continue interviewing for the other boards because we still had applicants waiting. At that point, Robert Rhoads left the meeting and the discussion ended with three members of the committee voting to replace two of the current planning commission members. After finishing all the interviews, we again discussed the planning commission nominees, and at the end of that conversation, the nominating committee meeting concluded with the recommendation split two to two. A.I. Planning Commission Nomination Discussion Page 1 of 1 Nominating Committee Report Meeting Date: March 14, 2007 Room 326, City Hall 5:00pm Members present: Kyle Cook, Adella Gray, Shirley Lucas, and Robert Rhoads. The following is being submitted by the Nominating Committee to the entire City Council for consideration. Planning Commission Two committee members recommend the following candidates for appointment: Candy Clark—one term ending 3/31/10 Christine Myres—one term ending 3/31/10 Sean Trumbo—one term ending 3/31/10. Two committee members recommend the following candidates for appointment: Matthew Cabe—one term ending 3/31/10 Shelly West—one term ending 3/31/10 Sean Trumbo—one term ending 3/31/10. The full committee interviewed all planning commission applicants and proceeded to discuss each nominee. We talked about past practices of the nominating committee including reappointing applicants unless their attendance was lacking. We also discussed placing the most qualified candidates available on the commission and the past service of the three current members that have reapplied. This conversation continued for about 20 minutes until I requested we continue interviewing for the other boards because we still had applicants waiting. At that point, Robert Rhoads left the meeting and the discussion ended with three members of the committee voting to replace two of the current planning commission members. After finishing all the interviews, we again discussed the planning commission nominees, and at the end of that conversation, the nominating committee meeting concluded with the recommendation split two to two. Planning Commission DESCRIPTION: The Planning Commission operates under the guidelines of both state statutes and Chapter 33, Article VII of the City of Fayetteville Code of Ordinances. The Planning Commission makes recommendations to the City Council regarding zoning changes, all annexations, and conditional uses. The Commission also makes recommendations concerning amendments or changes to the Master Street Plan, General Land Use Plan, or other comprehensive planning elements. It also exercises final approval jurisdiction over subdivision plans and large scale development plans as well as conditional use permit applications. TERMS: Staggered three-year terms, ending March 31. MEMBERS: The commission shall be composed of nine members. All members shall be citizens of Fayetteville, and at least two-thirds of whom shall not hold any other municipal office or appointment. No two members of the Commission shall be related by blood or marriage in the third degree, nor shall any two Commissioners have direct financial involvement. All Commissioners must disclose annually all real estate holdings in Fayetteville and the Fayetteville planning area, and any business or financial interest which could affect, or be affected by, decisions of the Commission. All Commissioners shall have a demonstrated interest, experience, or expertise in land use planning. APPOINTMENT: Vacancies are filled by appointment from the governing body of the City. CONTACT: Jeremy Pate, City Planning, 575-8267. PUBLIC NOTIFICATION: A weekly meetings list is prepared by the City Clerk's office which is distributed to the press and posted on the City's web site: www.accessfayetteville.org MEETING TIMES: The Commission meets the second and fourth Mondays of each month at 5:30 p.m. in the City Administration Building. 37 Planning Commission Lois Bryant Christine Myres 412 E. Center 1158 N. Maxwell Drive Fayetteville, AR 72701 Fayetteville, AR 72703-1516 521-4454 — Home 582-5364 — Home 770-7252 — Work 575-2576 — Work Replaced Nancy Allen Replaced Sharon Hoover 04/01/06-03/31/09 1st Term 04/01/04-03/31/07 1st Term Candy Clark Alan M. Ostner Residence: 312 S. Block Avenue 41 South Stonebridge Road Fayetteville, AR 72701 Mailing Address 571-4155 — Home PO Box 1482 236-4156 — Work Fayetteville AR 72702 Replaced Don Marr 442-0086 — Home 07/16/02-03/31/05 Unexpired Term 443-5409 — Work 04/01/05-03/31/08 1st Term Replaced Don Bunch 04/01/04-03/31/07 1st Term Andy Lack 2702 N. Emerald Avenue James Graves Fayetteville, AR 72703 PO Box 452 582-5628 — Home Fayetteville, AR 72701 443-7121 — Work 442-5628 — Home Replaced Loren Shackelford 521-9996 — Work 04/01/05-03/31/08 1st Term Replaced Bob Estes 11/05/03-03/31/05 Unexpired Term Hillary Harris 04/01/05-03/31/08 1st Term 87 E. Texas Way Fayetteville, AR 72701 Jill Anthes 200-5707 — Home 610 N Olive Avenue 521-6611 — Work Fayetteville, AR 72701 Replaced Christian Vaught 443-3107 — Home 04/01/06-03/31/09 1st Term 575-3371 — Work Replaced Lorel Hoffman Sean Trumbo 04/01/03-03/31/061st Term 2592 N. Gregg, Suite 22 04/01/06-03/31/09 2nd Term Fayetteville, AR 72703 442-4325 — Home 263-8893 — Work Replaced Alice Bishop Church 04/01/04-03/31/07 1st Term 38 Jp 460 X6;1 GOVERNMENT OF CITIES.OF THE FIRST CLASS 14;-43-504 7746; Pope'q a c-20 05 amendment inserted"or town"in(a)(1);and added present History.Acts,1875, No. 1, § 62,.p. 1; C. & M. Dig.,:§ 7744,:Pope's j; of Dig: §+ 9940•A.S:A. 1947- § 19-1011;Acts 2001 No. 365, § 1 i Amendments The 2001 amendmentinserted "of any city or town, m ert regardless of size or classification"in(b)(2)(B)and made minor stylistic CASE NOTES changes. ; NERALLY w ANALYSIS C' CASE NOTES Election returns. E' t t zUsLyors. Committees: �' Meetings- A committee of a city council having jurisdiction over the city parks , Quorum. has no legislative powers, as the legislative powers are conferred upon x the council sitting as such..Satterfield ¢, Fewell, 202 Ark. 67, 149 e 1 Election Returns. S.W2d 949 (1941). The authority of a city council is limited.to passing upon the face of election returns. Doherty v. Cripps, 82 Ark. 529, 102 S.W. 394 (1907). 14-43-504. Powers and duties of mayor genet hr i Mayors. a The mayor is not an elected member of the city council, but only an all3 000 or over, ) ex-officio member by virtue of his executive position, and therefore his The mayor of the cit shall be its chief executive vote:cannot be used in amending or repealing any part of an initiated (a) Y Y !rs, § 24-113 act; thus, where only five in of a nine-member council voted to Officer and conservator Of its peace. It shall be :his repeal an initiated ordinance, there was not the two-thirds majority special duty to cause the ordinances and regulations,of ' r"equired by Ark. Const.Amend. 7,and the mayor's favorable vote could, the City to,be:faithfully and constantly Obey. . aV` fl e not be counted as the sixth votenecessary to attain a two=thir3s`' 69 S.W.2d 471 (1984). (b)majority. Thompson v Younts, 282 Ark. 524, 6The mayor shall: 283. Where subdivision (b)(1)(B) repealed that part of this section that (1) Supervise the conduct of all the officers of the I p; - required a majority of the "aldermen" of a municipal corporation to city, examine the grounds of all reasonable complaints t seq. x approve appropriations,mayor of a city of first class could break five to against them and cause all their violations of �r five tie vote to pass no appropriation ordinance. Gibson v. City of made a g , Trumann, 311 Ark. 561, 845 S.W2d 515 (1993). duty or +other 'neglect to be properly punished or re- . ported to the proper tribunahfor correction; Meetings. �4 u'z The proceedings of a special meeting of a city council are legal.if all (2) :Have and exercise the.pOW2T:Conferred On Sheryl , �.; Or town the members had notice, whether all attended or not; when all the iffS, within the city limits, to suppress disorder-and 9r,* members of the council are voluntarily present in a council meeting and keep the peace; and January, participate therein,it is a legal meeting for all purposes,unless the lawIi provides otherwise,and an ordinance passed at such a meeting,is valid. (3) Perf0I7I1.;SUCh .Other:duties compatible with the aldermen City of Mena v. Tomlinson Bros., 118 Ark-'166, 175 S.W. 1187 (1915). natUTe Of h15 Office as the City Council may from time to' n for the time ire Quorum. An ordinance passed by less than the majority of all the members of (C) ,[Repealed] E f i returns a city council is void. Newbold v. Y City of Stuttgart, 145 Ark. 544, 224 (d) The ma or shall, at the second regular meeting of vers. S.W 993 (1926). the-,.council in'each year, and at such other, times as he 'Ni ;heir pro shall deem expedienf'report'to the council the muivc '. ceedings, 4444502. Powers of council generally. ipal affairs of the"city and recommend such measures to examia it as to him; ma . seem advisable. (a) The city council shall possess all the legislative Y (e) The powers granted by this subtitle and other corporate mayor of.any city of the first class shall, in of absent addition to the powers and duties already pottaming to powers of the city not prohibited in it or by some that office, be`Clothed'with,:and exerclse and perfozni penalties ordinance of the city council made in pursuance of the the following provisions of this subtitle and conferred on some officer •ules and . of the city. fkl mayor sha]l Saye the power,to,veto;wit h fives din but (5) day's, Sundags excepted;tafter the actioYi of the cxt� ding, (b)(1) The council shall have the management and council thereon, any ordinance, resolution, or order' control of finances,' and of'all`the real and personal adopted or made by the ,council, o any pert #dlreQf, property belonging to the corporation. ;es; and nt �s�t�ontra>Gy,to�the}n�bi�c inter which i 4ustxjudgme (2)(A) 'The council shall provide the times and places ests :Sident of s open to the publc.tings; which shall at all times be (2)(A) Intt`case of ar yeto, before: tl�e next regtar 'tin s. _ naeting,�g tlercQuncil, theil�ayor shallile in=the g (B) The mayor or any three (3) aldermen, of any t tablish a city or, town, regardless ;of size or classification, may office of the pity clerk, to be laYd before that meeting,: lectin of call special meetings in the manner as may be a written statement of his:reasons for so doing ieeded to ( ,,h[o such yordivance,regolution, or order, fir dart provided by ordinance. ir, or mo (3) The council shall appoint, or provide by ordihoreof,,;veoed pyhe� �y_ox shall hate anyrfofce or, ahthtywunless,rafter ;t'het:wntteii4tatement+in laid nance, that the. of the city, of the wards, before- the-council shall; +by a vote 'of two tin ds . ncil shall t or districts as the case may require, shall elect all such; -_ ^ « .2Y city officers as shall be necessary for the good govern- of all the aldermen,elected theroto, pass it over k . ment of the city and for.the due exercise of its corporate the veto 7738-7741, . powers, and which shall have,been provided by ordi- S.A. 1947, nance, as to whose appointment or election provision is Histgry Acts 1875,No' 1, § 53, p 1, 1885, 10 67, §";2, p 92,1893, No 42,;§§ 1, 2,,p 64, 1913,No 226x § 1, C &M Dig., §§ 7697-4161-;, council" for not made in this subtitle and not provided by any Po Dig, §§�9840 984'4; Acts-19'79, No 153, §§ 1; 2, A$A 194 ; n of the city general law of the state in reference to cities of the first §§ '19=1013;:19-1014; Acts 1991; Na 786, 2; b)(1)(B). I class. 1995, No.914, §-2. = r s- Opinion No, 97-343 December 10, 1997 The Honorable Bill Walters State Senator P.O. Box 280 Greenwood, Arkansas 72936 Dear Senator Walters: This official Attorney General opinion is rendered in response to a question you have raised concerning the override of a mayor's veto. You have asked: If the city council in a city of the second class fails to override a mayor's veto at the council meeting immediately following the mayor's veto because of a failure to obtain a quorum, can the council take up the matter at a subsequent council meeting and override the veto?. I must note initially my understanding that in most cities, the common practice for overriding vetoes is for the city council to override .the veto at the meeting of the city council immediately following the veto. This clearly is a reasonable and efficient approach to the situation. However, it is my opinion that the. question of when a city council must act to override a mayor's veto is one that is not squarely addressed by state law and that will ultimately have to be clarified either legislatively or judicially. Nevertheless, having reviewed and analyzed the language of the relevant Arkansas statute and the decisions of other jurisdictions, I find that a rational interpretation of the statute is that the city council= is not strictly required to act at the council meeting immediately following the veto, but that is must act within a reasonable time. The Honorable Bill Walters State Senator Opinion No. 97-343 Page 2 The statute that is relevant to this question is A.C.A. § 14-44-107, which states in pertinent part: (b)(1) The mayor in these cities shall have the power to veto, within five (5) days, Sundays excepted, after the action of the council thereon, any ordinance, resolution, or order adopted or made by the council, or, any part thereof, which in his judgment is contrary to the public interest. (2)(A) In case of a veto, before the next regular meeting of the council, the mayor shall file in the office of the city recorder, to be laid before the meeting, a written statement of his reasons for . so doing. (B) No ordinance, resolution, or order, or part thereof, vetoed by the mayor shall have any force or validity unless, after the written statement is laid before it, the council shall, by a vote of two-thirds (2/3) of all the aldermen elected thereto, pass it over the veto. A.C.A. § 14-44-107(2).1 It is clear from the language of the above-quoted statute that the only occurrence related to the veto that. must. happen at the meeting immediately following the mayor's veto is the mayor's presentationto the city council of his or her written reasons for the veto. The city council is not required by the strict language of the statute to act at that time. The only time restriction that is explicitly placed upon the city council by the statute is that it must act to override the veto "after" the mayor's reasons have been placed before it. The courts of other jurisdictions have considered similar. provisions. In each of those jurisdictions, the relevant statutory provision, like Arkansas', required the mayor to veto within a certain time frame, or to present his ' The provisions of law governing the override of vetoes in cities of the first class are identical to those governing cities of the second class. See A.C.A. § 14-43-504(e)(1). Accordingly, my opinion as stated herein would be the same with regard to a city of the first class. The Honorable Bill Walters State Senator Opinion No. 97-343 Page 3 written reasons for doing so, at the next regular meeting of the city council after the veto. Those provisions, also like Arkansas', did not specify a time frame within which the city council was strictly required to act to override the mayor's veto, other than that the override must occur "after" presentation of the mayor's reasons for the veto. The courts in those jurisdictions held that the city council was not required to override the veto at the next meeting after the veto, but that it must act within a reasonable time period. See, "., Hanna v. Rathje, 171 N.W.2d 876 (1969); Schmittou v. City of Nashville, 208 Tenn. 290, 345 S.W.2d 874 (1961); Warner v. Coatesville Borough, 231 Pa. 141, 80 A. 576 (1911). I find that this approach is a reasonable one. It is also supported by another aspect of the Arkansas statute. The language of A.C.A. § 14-44-107(2)(B) appears to require that the particular city council whose legislation was vetoed by the mayor must be the council who overrides the veto. This reading of the statute would require that the override occur during the time period when the terms of all members of the council who override the veto overlap. For the foregoing reasons, I conclude that if the city council fails to obtain a quorum at the city council meeting immediately following the mayor's veto, the council is not strictly required to override the veto at the city council meeting immediately following the veto, but that the council must act to override the veto within a reasonable time. The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Suzanne Antley. Sincerely, WINSTON BRYANT Attorney General WB:SBA/cyh Opinion No. 2004-330 December 30, 2004 The Honorable Bobby GIover State Senator Post Office Box 1 Carlisle, Arkansas 72024 Dear Senator Glover: I am writing in response to your request for my opinion on the question that I paraphrase as follows: 1. Since Section_ 2 of Ordinance No. 37 of 2004 of the City of Cabot states that members of the Cabot Utility Commission shall be elected by a majority vote of the City Council, does the Mayor have the authority to veto an appointment to the Commission? 2. Does state law authorize. the Commission to appoint key personnel? RESPONSE In my opinion, in response to your first question the Mayor retains his veto power with respect to the City Council's election of Commissioners to the Cabot Utility Commission. In response to your second question, state law does authorize the Cabot Utility Commission to appoint key personnel insofar as the Ordinance 37 of 2004 has delegated hiring authority to the Commission. Question X: Does the Mayor have.the authority to veto an appointment to the Cabot Utility Commission? The Honorable Bobby Glover State Senator Opinion No. 2004-330 Page 2 The powers and duties of a mayor are statutorily defined at Ark. Code Ann. § 14- 43-504 (Repl. 1998). Specifically, subsection (e) (1) provides that: A mayor shall have the power to veto within five (5) days, Sundays excepted, after the action of the city council thereon, any ordinance, resolution, or order adopted or made by the council, or any part thereof, which in his judgment is contrary to the public interests. Id. I have addressed a similar issue with regards to whether a mayor of a city of the first class has the power to veto an appointment to fill a vacant city council seat. Op. Att'y Gen 2004-270; see also Op. Att'y Gen. 91-078 (opining that the mayor of an incorporated town could veto the appointment of a council member); and Op. Att'y Gen: 90-078 (opining that a mayor of a city of the second class could veto an appointment to a City Council). I opined that the mayor of a city of the first class has the power to veto such an appointment_ Op. Att'y Gen. 2004- 270. I relied on Ark. Code Ann. § 14-43-504 as well as Arkansas Supreme Court precedent addressing a mayor's veto power, Steward v. Rust, 221 Ark. 286, 252 S.W.2d 816 (1952). Steward is particularly instructive as the Arkansas Supreme. Court stated that the filling of a vacancy by a city council will take the form of an order or resolution. Id. at 287.. Furthermore, a resolution was held not to require any particular format or written requirements. Id. The law has: not changed materially on this point since the rendition of these opinions. I am enclosing a copy of Op. Att'y Gen. 2004-270. Because the appointment of a commissioner will take the form of an order or resolution, the , Mayor of Cabot will retain the veto power over such an appointment pursuant to Ark. Code Ann. § 14-53-504. Question 2: Does State law authorize the Cabot Utility Commission to. appoint key personnel? In my opinion, the Commissioners may under State law appoint, by means of hiring within the powers granted by the Ordinance 37, key personnel for the Cabot Utilities Board. This question presents an issue of whether the Cabot City Council has properly delegated authority to the Cabot Utility Commission through Ordinance No. 37 of 2004. A municipality has only the powers expressly provided by the legislature.of ARKAfV$AS aye OPERATIONS DIRECTOR To: City Council From: Gary Dumas Director of Operations Date: March 19, 2007 Re: Planning Commission Appointments The Divisions of Planning, Engineering, Community Resources, Building Safety, Water and Waste Water, Parking, Human Resources, Building Services, Fleet, Solid Waste, Parks, and Transportation report to the Director of Operations. It therefore is my duty to be responsive to issues affecting their ability to perform effectively and efficiently their essential job functions and to serve you, the Council, and the Public, to whom we should all be responsive. For several, several months I have been aware of conflict issues and public statements made by individual members of the Planning Commission to City Staff. There are certain levels of respect that all public officials are expected to convey. It is unfortunate that we have the need to address these issues in public since it does involve what essentially amounts to a personnel issue. Personnel issues are typically handled in private, in an effort to avoid public embarrassment of individuals. However, there has been an unwillingness to address these issues in a more quiet and compassionate manner. Therefore in order to attempt to resolve this personnel issue, I and we are unfortunately having this public discussion. Given where we are today, on the verge of appointing and reappointing Planning Commissioners, I must express publicly my concerns for the benefit of those who report = to me, and more importantly, in an effort to maintain what I consider to be a highly motivated and competent Staff performing effectively and efficiently for the public. For the past several months the Staff has been concerned about the lack of respect that certain members of the Planning Commission have been displaying toward Staff and the public. No member of the Staff expects the volunteer or elected body to concur unquestioningly with the Staff recommendation. Staff recommendations consider the Code of Ordinances, the State Law, Case Law, adopted plans, and their expert opinion. The volunteer or elected body or individual members may not agree with that recommendation, but I think that all will agree that it is well reasoned and well thought out and is a studied opinion that establishes where debate can begin. RECEIVED 113 West Mountain MAR^ 20�� Fayetteville, Arkansas 72701 ' t Office phone-479-575-8330 c�NOFFgy Fax -479-575-8257 CnyCLERM��'LLIE E-mail -gdumas(aci.fayetteville.ar.ns FFI ,(`C Disagreement and discussion are a part of the political process. However disrespect, personal attacks, and dismissal of adopted policies and professional opinion should not be a part of that process and if allowed to continue will marginalize the discussion and move it to the negative extremes. Additionally, this type of behavior, which is unacceptable from your employees, will impact the Staffs' ability to address other Council priorities beyond staffing the Planning Commission, such as housing affordability and the street bond program. Over the past several days, elected officials have questioned some Staff members asking, "If Commissioner X is reappointed will you resign?" Regardless of the answer,just having to ask the question should indicate that most of you already know that there is a problem.. If an elected official has to ask that question of the Staff, what do you imagine is the.public's perception of our Planning Commission? I believe that most will agree that there are problems within the Planning Commission. I believe that a change in Commission composition at this time can help recreate a Planning Commission which serves its important function while maintaining a level of respect and dignity for Staff and others. As I have stated above, you may not concur with this or other staff reports, but this issue is now certainly ready for a public debate. The results of which I am certain will be felt within the City Staff who must deal with the Planning Commission and others as they consider whether to participate in the Planning Commission review and approval process. If this issue is not resolved, this lack of respect by some of our Planning Commission members toward Staff and others will create an environment that worsens morale and continues to increase stress in our professional Staff that assists the Planning Commission. This will lead to a variety of problems including higher employee turnover, which must be dealt with, but the end result will be a much less effective and efficient Planning and Engineering function as well as well as other Staff, serving you, the City Council, and the Public. I request that in your deliberations concerning Planning Commission appointments that you consider the impact upon Staff morale and the impact this will have upon the Staff s ability to deliver to you and the public the high-quality professionalism we have come to expect. 113 Vilest Mountain Fayetteville. Arkansas 72701 Office phone-479-575-8330 Fax -479-575-8257 E-mail-gdumastnn?.ci.fayetteville.ar.us As Mayor, it is my responsibility to recommend policies that protect the well-being of our residents and increase their quality of life through the preservation of our natural environment and the maintenance of Fayetteville's economic vitality. It is equally important as the senior administrator of this organization that I do everything I can to provide a healthy and productive working environment for our staff. Fayetteville is incredibly fortunate to have the most professional, hard working and dedicated staff in Arkansas and one of the best in the country. As elected officials, we must insist that city government operate in a manner that fosters respect and civility toward our residents and our staff. I appreciate the time and effort that our volunteers put into their work as they represent our community. We have many citizens serving on various boards and commissions, and we are all grateful for their commitment to the City and their contributions to this community. However, when personality and professional conflicts escalate creating an environment of frustration and intimidation for the public and our staff, changes must be made. It is clear to me after reviewing planning commission activities and consulting with my staff that such an environment exists, which is clearly contrary to the public interest and the best interest of this organization. Therefore I am required to use my authority to veto the appointment of Commissioner Clark to the Fayetteville Planning Commission. I ask the City Council to reconsider our deep pool of excellent applicants and nominate another person for this position. RECEIVED MAR 2 8 2007 i CITY OF FAYETTEVILLE v CI7YCLERWS OFFICE FAYETTEVILLE THE C TY OF FAYETTEVILLE,ARKANSAS KIT VVMLL MS,CITY ATTORNEY DAVID WMTAKER,.ASST.CITY ATTORNEY DEPARTMENTAL CORRESPONDENCE LEGAL DEPARTMENT TO: Dan Coody, Mayor City Council Sondra Smith, City Clerk/Treasurer CC: Jeremy Pate, Director of Current Planning FROM: Kit Williams, City Attorneyq6 DATE: March 28, 2007 RE: Mayoral power and proper procedure to veto appointment to Planning Commission A.C.A. §1443-504 (e) provides for the veto power of the Mayor. "(e) The mayor of any city of the first class shall, in . addition to the powers and duties already pertaining to that office, be clothed with, and exercise and perform, the following: (1) A mayor shall have the power toveto, within five (5) days, Sundays excepted; after the action,of the City Council thereon, any ordinance, resolution, or order adopted or made by the council, or any . ! part thereof, which in his judgment is contrary to the public interests. "(2)(A) In case of a veto, before the next regular meeting of the council, the mayor shall file in.the office of the city clerk, to be laidbef ore that meeting, a written statement of his reasons for so doing. " (B) No such ordinance, resolution, or order, or part thereof, vetoed by the mayor shall have any force or validity unless, after the written y statement is laid before it, the council shall, by a vote of two-thirds (2/3) of all the aldermen elected thereto, pass it over the veto." My research has discovered two Arkansas Attorney General Opinions (No. 93-165 of July 6, 1993 and No. 2004-330 of December 30, 2004) which support the Mayor's power to veto an appointment to the Planning Commission. I have attached the first two pages of the 2004 opinion dealing with this issue. The issue of correct procedure must also be addressed. I believe you remember that prior to your vote to attempt, to override the Mayor's veto last night I stated that I believed the veto had to be in writing and filed with the City Clerk before the City Council could take action. As you can see from the quoted statute, that is the correct procedure. I warned you that your vote to override might be ineffectual, and I now opine that it was. I realize that no one wants this uncomfortable uncertainty to continue, but my duty is to objectively analyze state law and try to ensure compliance with that law regardless of personal desires or any other factors. The statutory authority clearly sets forth the required procedure: "In case of a veto, . . . the mayor shall file in the office of the city clerk . . . a written statement of his reasons for doing so." A.C.A. §14-43-504 (e)(2)(A). The "shall" makes this procedure mandatory. Mayor Coody clearly enunciated his.reasons for his veto, however to be effective under state law, his written veto message must be filed in the City Clerk's office within five days of your action. I do not believe an oral veto meets the. statutory requirements. I researched further Arkansas Attorney General. Opinions on this issue and found No. 97-343 (attached) of December 10, 1997, which is very instructive. That Opinion states: "It is clear from the language of the above quoted statute that the only occurrence related to the veto that must happen at the meeting immediately following the mayor's veto is the mayor's Presentation to the city council of his or her written reasons for the veto." (emphasis in original). Obviously, an immediate oral veto message after the passage of an ordinance, resolution or order (motion) is not contemplated or authorized by the statute. The Attorney General's Opinion continues: "The only time restriction that is explicitly placed upon the city council by the statute is that it must act to override the veto 'after' the mayor's reasons have been placed before it." The "written statement of his reasons" shall "be laid before that meeting (the next regular meeting of the council). A.C.A. § 14-43-504 (e)(2)(A). Prior to the "written statement of his reasons for (the veto)" being "laid before that meeting", the City Council may not act upon the veto. CONCLUSION The oral statement by Mayor Coody announced his intention to veto the reappointment of the Planning Commission, but until he files his "written statement of his reasons for so doing" "in the office of the - city clerk", his statutory veto power has NOT been fully exercised. Because the attempted verbal veto was not immediately effective, the reappointment of the Planning Commissioners was not vetoed at the Special `City Council meeting (and will not be until the written statement is filed in the City Clerk's office). .override This means that the City Council lacked any authority to attempt to veto (which cannot be done until the next regular meeting of the council"). Also since the attempted verbal veto was not immediately effective, there was no empty position to appoint another Planning Commissioner applicant. Everything done after the Mayor read his veto message was thus, ineffective and of no legal consequence (just as l warned might be the case prior to. your vote). Opinion No. 2004-330 December 30, 2004 The Honorable Bobby Glover State Senator Post Office Box 1 Carlisle, Arkansas 72024 Dear Senator Glover: I am writing in response to your request for my opinion on the question that I paraphrase as follows: 1. Since Section 2 of Ordinance No. 37 of 2004 of the City, of Cabot states that members of the Cabot Utility Commission. shall be elected by a majority vote of the City Council, does the Mayor have the authority to veto an appointment to the Commission? 2. Does state law authorize. the Commission to appoint key personnel? RESPONSE In my opinion, in response to your first question the Mayor retains his veto power with respect to the City Council's election of Commissioners to the Cabot Utility Commission. In response to your second question, state law does authorize the Cabot Utility Commission to appoint key personnel insofar as the Ordinance 37 of 2004 has delegated hiring authority to the Commission. Question X: Does the Mayor have the authority to veto an appointment to the Cabot Utility Commission? The Honorable Bobby Glover State Senator Opinion No. 2004-330 Page 2 The powers and duties of a mayor are statutorily defined at Ark. Code Ann. § 14- 43-504 (Repl. 1998). Specifically, subsection (e) (1) provides that: A mayor shall have the power to veto within five (5) days, Sundays excepted, after the action of the city council thereon, any ordinance, resolution, or order adopted or made by the council, or any part thereof, which in his judgment is contrary to the public interests. Id. I have addressed a similar issue with regards to whether a mayor of a city of the first class has the power to veto an appointment to fill a vacant city council seat. Op. Att'y Gen 2004-270; see also Op. Att'y Gena 91-078 (opining that the mayor of an incorporated town could veto the appointment of a council member); and Op. Att'y Gen. 90-078 (opining that a mayor of a city of the second class could veto an appointment to a City Council). I opined that the mayor of a city of the first class has the power to veto such an appointment. Op. Att'y Gen. 2004- 270. I relied on Ark. Code Ann. § 14-43-504 as well as Arkansas Supreme Court precedent addressing a mayor's veto power, Steward v. Rust, 221 Ark. 286, 252 S.W.2d 816 (1952). Steward is particularly instructive as the Arkansas Supreme. Court stated that the filling of a vacancy by a city council will take the form of an order or resolution. Id. at 287. Furthermore, a resolution was held not to require any particular format or written requirements. Id. The law has: not changed materially on this point since the rendition of these opinions. I am enclosing a copy of Op. Att'y Gen. 2004-270. Because the appointment of a commissioner will take the form of an order or resolution, the , Mayor of Cabot will retain the veto power over such an appointment pursuant to Ark.' Code Ann. § '14-53-504: Question 2: Does State law authorize the Cabot Utility Commission to. appoint key personnel? In my opinion, the Commissioners may under State law appoint, by means of hiring within the powers granted by the Ordinance 37, key personnel for the Cabot Utilities Board. This question presents an issue of whether the Cabot City Council has properly delegated authority to the Cabot Utility Commission through Ordinance No. 37 of 2004. A'municipality has only the powers expressly provided by the legislature .of s Opinion No. 97-343 December 10, 1997 The Honorable Bill Walters State Senator P.O. Box 280 Greenwood, Arkansas 72936 Dear Senator Walters: This official Attorney General opinion is rendered in response to a question you have raised concerning the override of a mayor's veto. You have asked: If the city council in a city of the second class fails to override a mayor's veto at the council meeting immediately following the mayor's veto because of a failure to obtain a quorum, can the council take up the matter at a subsequent council meeting and override the veto?. I must note initially my.understanding that in most cities, the common practice for overriding vetoes is for the city council to override the veto at the meeting of the city council immediately following the veto. This clearly is a reasonable and efficient approach to the situation. However, it is my opinion that the question of when a city council must act to override a mayor's veto is one that is not squarely addressed by state law and that will ultimately have to be clarified either legislatively or judicially. Nevertheless, having reviewed and analyzed the language of the relevant Arkansas statute and the decisions of other jurisdictions, I find that a rational interpretation of the statute is that the city council- is not strictly required to act at the council meeting immediately following the veto, but that is must act within a reasonable time. The Honorable Bill Walters State Senator Opinion No. 97-343 Page 2 The statute that is relevant to this question is A.C.A. § 14-44-107, which states in pertinent part: (b)(1) The mayor in these cities shall have the power to veto, within five (5) days, Sundays excepted, after the action of the council thereon, any ordinance, resolution, or order adopted or made by the council, or any part thereof, which in his judgment is contrary to the public interest. (2)(A) In case of a veto, before the next regular meeting of the council, the mayor shall file in the office of the city recorder, to be laid before the meeting, a written statement of his reasons for , so doing. (B) No ordinance, resolution, or order, or part thereof, vetoed by the mayor shall have any force or validity unless, after the written statement is laid before it, the council shall, by a vote of two-thirds (2/3) of all the aldermen elected thereto, pass it over the veto. A.C.A. § 14-44-107(2).1 It is clear from the language of the above-quoted statute that the only occurrence related to the veto that. must. happen at the meeting immediately following the mayor's veto is the mayor's presentation to the city council of his or her written reasons for the veto. ` The'city council is not required by the strict language of the statute to act at that time. The only time restriction that is explicitly placed upon the city council by the statute is that it must act to override the veto "after" the mayor's reasons have been placed before it. The courts of other jurisdictions have considered similar. provisions. In each of those jurisdictions, the relevant statutory provision, like Arkansas', required the mayor to veto within a certain time frame, or to present his ' The provisions of law governing the override of vetoes in cities of the first class are identical to those governing cities of the second class. See A.C.A. § 1443-504(e)(1). Accordingly, my opinion as stated herein would be the same with regard to a city of the first class. The Honorable Bill Walters State Senator Opinion No. 97-343 Page 3 written reasons for doing so, at the next regular meeting of the city council after the veto. Those provisions, also like Arkansas', did not specify a time frame within which the city council was strictly required to act to override the mayor's veto, other than that the override must occur "after" presentation of the mayor's reasons for the veto. The courts in those jurisdictions held that the city council was not required to override the veto at the next meeting after the veto, but that it must act within a reasonable time period. See, e.g., Hanna v. Rath/e, 171 N.W.2d 876 (1969); Schmittou v. City of Nashville, 208 Tenn. 290, 345 S.W.2d 874 (1961); Warner v. Coatesville Borough, 231 Pa. 141; 80 A. 576 (1911). I find that this approach is a reasonable one. It is also supported by another aspect of the Arkansas statute. The language of A.C.A. § 14-44-107(2)(B) appears to require that the particular city council whose legislation was vetoed by the mayor must be the council who overrides the veto. This reading of the statute would require that the override occur during the time period when the terms of all members of the council who override the veto overlap. For the foregoing reasons, I conclude that if the city council fails to obtain a quorum at the city council meeting immediately following the mayor's veto, the council is not strictly required to override the veto at the city council meeting immediately following the veto, but that the council must act to override the veto within a reasonable time. The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Suzanne Antley. Sincerely, WINSTON BRYANT Attorney General WB:SBA/cyh