HomeMy WebLinkAboutOrdinance 5351 ORDINANCE NO. 5351
AN ORDINANCE TO REPEAL §34.26 AUTHORITY OF CITY
EMPLOYEES TO CONTRACT WITH THE CITY AND TO ENACT A
REPLACEMENT §34.26 LIMITED AUTHORITY OF CITY EMPLOYEES
TO PROVIDE SERVICES TO THE CITY
WHEREAS, state law prohibits any city official or employee from profiting from "any
contract for furnishing supplies, equipment or services to the municipality unless the governing
body of the city has enacted an ordinance specifically permitting ... municipal employees to
conduct business with the city ...." A.C.A. §14-27-107(b)(1); and
WHEREAS, on June 5, 1984, the City Board of Directors passed Ordinance No. 3013,
now codified as §34.26 Authority of City Employee to Contract with the City; and
WHEREAS, the current code section uses such broad and imprecise terms that it appears
to prohibit not just the furnishing of services, but any contracts (such as an employee leasing a T-
hangar) if such rental amount paid to the City exceeds $500.00; and
WHEREAS, this code section needs to be revised so that city employees may work as
umpires and referees for the City Parks and Recreation Department and other employees may
provide services when specifically authorized by City Council Resolution.
NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF FAYETTEVILLE,ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby repeals
§34.26 of the Fayetteville Code entitled Authority of City Employees To Contract With The
City and enacts a replacement §34.36 entitled Limited Authority Of City Employee To
Provide Services To The City as shown below:
"§34.26 Limited Authority of City Employee To Provide Services To
The City
"An employee of the city shall be permitted to furnish services as an
independent contractor to the City only if:
Page 2
Ordinance No. 5351
"(A) The employee fully discloses his or her direct or indirect
financial interest in any contract or service agreement to the City
Council and such services are approved by City Council Resolution;
"(B) No favoritism is allowed to the city employee over other possible
service providers;
"(C) Such services are not of the same type as performed by the city
employee in his or her regular city job, nor are services for the
department wherein the employee works;
"(D) The employee's immediate supervisor specifically approves such
extension of employee service and ensures it will not adversely affect
the employee's regular city employment duties;
"(E) City employees who are not within the Parks and Recreation
Department are specifically allowed to work as independent
contractors as scorekeepers, referees and umpires for the Fayetteville
Parks and Recreation Department without the need for a City Council
Resolution."
PASSED and APPROVED this 7t" day of September, 2010.
APPROVED: ATTEST:
By: By.
�. EID JO , Mayor SONDRA E. SMITH, City Clerk/Treasurer
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AGENDA REQUEST
FOR: COUNCIL MEETING OF SEPTEMBER 7, 2010
FROM:
KIT WILLIAMS, CITY ATTORNEY
ORDINANCE OR RESOLUTION TITLE AND SUBJECT:
An Ordinance To Repeal §34.26 Authority Of City Employees To Contract With The City
And To Enact A Replacement §34.26 Limited Authority Of City Employees To Provide
Services To The City
APPROVED FOR AGENDA:
"
City Attorney Date
c. C�
C ief of Staff Date
01 doA i p
Fin nce Director ate
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Mayor Date 08-20-IOPO4 :47 RCVD
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FAYETTEVILLE
THE CITY OF FAYETTEVILLE,ARKANSAS
KIT WILLIAMS,CITY ATTORNEY �Lll
DAVID WHITAKER,ASST.CITY ATTORNEY
DEPARTMENTAL CORRESPONDENCE LEGAL DEPARTMENT
TO: Lioneld Jordan, Mayor
City Council
FROM: Kit Williams, City Attorney s _4_4`------ _W
DATE: August 20, 2010
RE: §34.26 of Fayetteville Code; A.C.A. §14-42-107(b)
Twenty-six years ago, the Fayetteville Board of Directors passed Ordinance
No. 3013 which has been codified as §34.26 of the Fayetteville Code:
"34.26 Authority of City Employee To Contract With
The City
"An employee of the city shall be permitted to conduct
business with the city, provided the contract or job is for
services, is submitted as a competitive bid, is approved by the
City Council following disclosure of the direct or indirect
financial interest of the individual employee, and the total sum
payable under the contract does not exceed $500.00."
From a legal point of view, the wording of this old ordinance is very lacking
in clarity of purpose and effect. It was specifically enacted in response to A.C.A.
§14-42-107(b) to permit a city employee to conduct business for "the profits of any
contract for the furnishing supplies, equipment or services to the municipality ...."
A.C.A. §14-27-107 (b)(1). (I have attached Ordinance No. 3013 for your review.)
Unfortunately, instead of just authorizing a modest amount of services to be sold to
the City by an employee, it used the term "conduct business with city" which
would also prohibit an employee from purchasing goods or services (like entering
into a T-hangar lease) from the city if the contract exceeded $500.00. State law
had no such restriction. (See below)
"Interest in offices or contracts prohibited
"No alderman, council member, official, or municipal
employee shall be interested, directly or indirectly, in the
profits of any contract for furnishing supplies, equipment, or
services to the municipality unless the governing body of the
city has enacted an ordinance specifically permitting
aldermen, council members, officials, or municipal employees
to conduct business with the city and prescribing the extent of
this authority." A.C.A. §14-27-107(b)(1).
This statute clearly sets forth a one way prohibition. Officials and
employees cannot sell services or products to the City unless the City Council
specifically permits and regulates such sales. Unfortunately, the City Board chose
such imprecise wording ("conduct business with the city") that the Code seems to
prohibit all business transactions with the City even if the employee is paying the
City to buy services (like water, sewer, solid waste fees, etc.). This was surely not
the intent of the City Board. We now have a city employee who wishes to rent a
T-hangar at the Fayetteville Municipal Airport at the standard public rate. That
certainly is "conduct(ing) business with the city", but it is not a "contract for
furnishing supplies, equipment or services to the municipality ...." Id. (emphasis
added) Therefore, an employee renting land or a building from the City would not
violate state law, but may appear to violate Fayetteville Code §34.26 Authority
Of City Employee To Contract With The City.
This would seem to be a very confusing and contradictory result as aldermen
and city officials are not authorized (and thus not restricted) by the City Code from
renting or purchasing services from the City, while employees would be restricted.
This could not have been the intent of the City Board of Directors and surely is not
the intent of our current City Council and Mayor. Therefore, I propose some
substantial modification to §34.26 to reflect what I believe was always the true
intent of the ordinance — to allow some furnishing of services by employees to the
City with safeguards like full disclosure and express City Council approval. The
broad term "conduct business" should be replaced with ,"by furnishing services"
(from the state law) so that it is clear employees (like ordinary citizens) can
purchase water, sewer and solid waste services, and rent T-hangars from the City.
I have drafted and attached a new §34.26 Limited Authority of City
Employees to Provide Services to the City for your consideration. I wanted to
ensure no favoritism would be given to city employees over regular citizens for the
opportunity to provide services {see (B)} and that the City Council would have to
be fully informed of any direct or indirect financial interest of the employee and
approve the purchase of such services by City Council Resolution {see (A)}.
The Department of Labor forbids an employer (like the City) from hiring its
employees as independent contractors to perform services similar to their normal
job duties. (Employers used to do this to avoid paying overtime.) I tried to protect
the City from this situation in (C). We also wanted to be sure that an employee's
normal work duties would not be adversely affected by independent contractor
work for the City {see (D)}.
I believe that most of our city employees who work as independent
contractors providing services to our City work as umpires or referees. As long as
these employees are not employed by our Parks and Recreation Department, I
believe we would not face an issue with the Department of Labor nor any
perceived unfair favoritism by our citizens. Thus, I .propose exempting these
employees from the need for specific City Council Resolution in (E).
I have been informed that some Parks and Recreation employees wish to
work as independent contractor umpires or referees for the Parks and Recreation
Department. I am uncomfortable with this arrangement not only because of
Department of Labor concerns, but also because the apparent conflict of interest or
perceived favoritism of the Parks and Recreation Department hiring its own
employees over other citizens. Even though there might actually be no unfair
favoritism at all, it would be hard to dispel the smell of an "inside deal." I would
prefer that the employees simply work as umpires or referees as regular employees
on the clock. We would then hire only those independent contractors needed for
games our employees could not work.
There has been some internal disagreement about whether or not to exclude
Parks and Recreation Department employees from being employed as independent
contractors working for Parks and Recreation. The City Council will need to
resolve this issue and amend my proposed ordinance if you believe my restriction
is not needed or not appropriate.
ORDINANCE NO.
AN ORDINANCE TO REPEAL §34.26 AUTHORITY OF CITY
EMPLOYEES TO CONTRACT WITH THE CITY AND TO ENACT A
REPLACEMENT §34.26 LIMITED AUTHORITY OF CITY EMPLOYEES
TO PROVIDE SERVICES TO THE CITY
WHEREAS, state law prohibits any city official or employee from profiting from "any
contract for furnishing supplies, equipment or services to the municipality unless the governing
body of the city has enacted an ordinance specifically permitting ... municipal employees to
conduct business with the city ...." A.C.A. §14-27-107(b)(1); and
WHEREAS, on June 5, 1984, the City Board of Directors passed Ordinance No. 3013,
now codified as §34.26 Authority of City Employee to Contract with the City; and
WHEREAS, the current code section uses such broad and imprecise terms that it appears
to prohibit not just the furnishing of services, but any contracts (such as an employee leasing a T-
hangar) if such rental amount paid to the City exceeds $500.00; and
WHEREAS, this code section needs to be revised so that city employees may work as
umpires and referees for the City Parks and Recreation Department and other employees may
provide services when specifically authorized by City Council Resolution.
NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF FAYETTEVILLE,ARKANSAS:
Section l: That the City Council of the City of Fayetteville, Arkansas hereby repeals
§34.26 of the Fayetteville Code entitled Authority of City Employees To Contract With The
City and enacts a replacement §34.36 entitled Limited Authority Of City Employee To
Provide Services To The City as shown below:
"§34.26 Limited Authority of City Employee To Provide Services To
The City
"An employee of the city shall be permitted to furnish services as an
independent contractor to the City only if:
"(A) The employee fully discloses his or her direct or indirect
financial interest in any contract or service agreement to the City
Council and such services are approved by City Council Resolution;
"(B) No favoritism is allowed to the city employee over other possible
service providers;
"(C) Such services are not of the same type as performed by the city
employee in his or her regular city job, nor are services for the
department wherein the employee works;
"(D) The employee's immediate supervisor specifically approves such
extension of employee service and ensures it will not adversely affect
the employee's regular city employment duties;
"(E) City employees who are not within the Parks and Recreation
Department are specifically allowed to work as independent
contractors as referees and umpires for the Fayetteville Parks and
Recreation Department without the need for a City Council
Resolution."
PASSED and APPROVED this 7th day of September, 2010.
APPROVED: ATTEST:
By: By:
LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer
ORDINANCE NO. 3013
AN ORDINANCE AMENDING CHAPTER 2 OF THE FAYETTEVILLE
CODE OF ORDINANCES TO PERMIT A CITY EMPLOYEE TO
CONDUCT BUSINESS WITH THE CITY AND PRESCRIBING THE
EXTENT OF SUCH AUTHORITY.
WHEREAS, Ark. Stat. Ann. §19-716(e) provides that no
employee shall be interested directly or indirectly in any
contract made with the City unless the Board of Directors
shall have enacted an ordinance specifically permitting an
employee to conduct business with the City and prescribing
the extent of such authority.
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF DIRECTORS
OF THE CITY OF FAYETTEVILLE, ARKANSAS :
Section 1. That Chapter 2 of the Fayetteville Code of
Ordinances is hereby amended by adding Section 2-70 to read
as follows :
Sec. 2-70. Authority of City Employee to Contract
with the City. An employee of the City shall be per-
mitted to conduct business with the City provided the
contract or job is for services , is submitted as a
competitive bid, is approved by the Board of Directors
Jer following disclosure of the direct or indirect financial
.r fore.
interest of the individual employee , and the total sum
Arore. :
3day payable under the contract does not exceed $500. 00.
'me is PASSED AND APPROVED THIS 5th day of June 1984.
.1914
�-- ri••K^ APPROVED :
By -
,� Mayor .
ATTEST:
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FAYETTEVILLE
THE CITY OF FAYETTEVILLE,ARKANSAS /1
KIT WILLIAMS,CITY ATTORNEY
DAVID WHITAKER,ASST.CITY ATTORNEY
DEPARTMENTAL CORRESPONDENCE �,C2 LEGAL DEPARTMENT
TO: Mayor Jordan
City Council
Sondra Smith, City Clerk
CC: Connie Edmonston, Parks & Recreation Director
FROM: Kit Williams, City Attorney
__._.........._.................
DATE: September 2, 2010
RE: §34.26 Limited Authority of City Employees To Provide Services
To The City
Connie asked to have scorekeepers added to umpires and referees in subsection (E)
of this new code section. She reports that the Parks and Recreation Department
frequently must obtain city employees as scorekeepers as well as referees and umpires.
Connie requests that you amend the currently proposed ordinance to add scorekeepers in
subsection (E).
Attached below is how §34.26 Limited Authority of City Employees to Provide
Services To the City will read if scorekeepers are added to (E)..
"§34.26 Limited Authority of City Employee To Provide Services
To The City
"An employee of the city shall be permitted to furnish services as an
independent contractor to the City only if-
"(A)
f"(A) The employee fully discloses his or her direct or indirect
financial interest in any contract or service agreement to the City
Council and such services are approved by City Council Resolution;
"(B) No favoritism is allowed to the city employee over other
possible service providers;
"(C) Such services are not of the same type as performed by the city
employee in his or her regular city job, nor are services for the
department wherein the employee works;
"(D) The employee's immediate supervisor specifically approves
such extension of employee service and ensures it will not adversely
affect the employee's regular city employment duties;
"(E) City employees who are not within the Parks and Recreation
Department are specifically allowed to work as independent
contractors as scorekeepers, referees and umpires for the Fayetteville
Parks and Recreation Department without the need for a City Council
Resolution."
NORTHWEST ARKANSAS
NEWSPAPERS-Lc RECEIVED
Northwest Arkansas Democrat Gazette
The Morning News of Springdale OCT 0 2010
OF
The Morning News of Rogers C`c Y CLERK'S OFFICE FAYETTEVILLE
Northwest Arkansas Times
Benton County Daily Record
212 North East Avenue, Fayetteville Arkansas 72701/ PO Box 1607, 72702
PHONE: 479-571-6421
AFFIDAVIT OF PUBLICATION
I, Cathy Wiles, do solemnly swear that I am Legal Clerk of the Northwest
Arkansas Newspapers LLC. Printed and published in Washington & Benton
County, (Lowell), Arkansas and that from my own personal knowledge
and reference to the files of said publication, the advertisement of: City
of Fayetteville — Ordinance No 5351
September 16, 2010
Publication Charge : $ 207.52
Signed: 0UU
9 ---- — ----------------
Subscribed and sworn to before me
This2'��`day of I;ZL. , 2010.
Notary Public 119
JOSHUA M LYNCH
Notary Public-Arkansas
My Commission Expires: Washington County
N, My Comrnission Expires 1 0-213 201 2
Commission # 12366414 =
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