1068aT0: West Pdemphis City Council
FROM: Mayor Joyce T. Ferguson
SUBJECT: Mayor's Veto of Ordinance No. 1068 and Ordinance No. 1069
In accordance with the procedures established in Arkansas Statutes 19-1014, I am
herein filing my written statement concerning my veto of Ordinance No. 1068 and
Ordinance No. 1069, which was adopted by the City Council of West Memphis on bSay 21,
1981, and filing this with the office of the City Clerk prior to the next regular
meeting of the City Council.
I have vetoed Ordinance No. 1068 which abolishes the present West Memphis Utility
Commission, in order to prevent the existence of a void in the operations of the
utilities, until such time as the legal questions concerning Ordinance No. 1069
can be resolved.
I have vetoed Ordinance No. 1069, adopted by the City Council on Thursday, May
21, 1981, for the reason that serious ~u~s~~szns have been raised concerning the
validity of certain sections of the Ordinance. The following explanation
is given as my reasons for vetoing Ordinance No. 1069:
The City of West Memphis is a municipal corporation and authorized and created
as set forth in the Arkansas Constitution, as per Article 12, Section 3, which
states: "CITIES AND TOWNS - ORGANIZATION UNDER GENERAL LAWS. - The General
Assembly shall provide, by general laws, for the organization of cities (which may
be classified) and incorporated towns, and restrict their power of taxation,
assessment, borrowing money and contracting debts, so as to prevent the abuse of
such power." Cities cannot pass laws or ordinances contrary to the general laws
of the State as per Article 12, Section 4 which states: "LIMITATION ON LEGISLATIVE
AND TAXING POWER - LOCAL BOND ISSUES. - No municipal corporation shall be author-
ized to pass any law contrary to the general laws of the State."
The enabling Statutes for the Constitution with reference to municipal corporations
are contained in Sections 19-2301. The enabling legislation grants to municipalities
specific powers subject to the rules and restrictions of the enabling Statutes -
19-2302 reads: "All municipal corporations organized or to be organized under
the provisions of this Act, shall have general powers and privileges, and be sub-
ject to the rules and restrictions of this Act prescribed." This Act specifically
grants the power to ~itnicipalities to furnish sewer services as stated in 19-2313,
which reads: "They (municipal corporations) shall have power.....to open and con-
struct and keep in order and repair sewers and drains;....." water supplies and
stated in 19-2317, which reads: "They (municipal corporations) shall have power
to provide a supply of water by construction or acquiring.....; to regulate
t--r gage 2-----Mayor's Veto Message on Ordinance No. 1068 and Ordinance 1069
the same;...." and electrical power to its residents as set forth in 19-2318 which
reads: "They (municipal corporations) shall have power.... to furnish power to
consumers, or to purchase such power, gas or electricity for such purposes from
any individual, company or corporation manufacturing the same, and in connection
wherewith furnish lights and power to private consumers upon just compensation
therefore;". The power granted to a municipality concerning sewers is to "open
and construct and keep in order and repair sewers and drains". The power granted to
a municipality concerning water is to "pro tide a supply of water.....; and to re-
gulate the same;". The Statute concerning electrical power grants to the City the
"power to provide for or construct or acquire works....or to furnish power to
consumers, or to purchase such power, gas or electricity for such purposes....,
and in connection therewith to furnish lights and power to private consumers upon
just compensation;...".
In order to carry into effect or discharging the powers or duties conferred upon
it, a municipal corporation is granted the power to make ordinances which are
"not inconsistent with the laws of the State", as per Ark. Statute 19-2401, which
reads: "Municipal corporations shall have the power to make and publish, from
time to time, bylaws or ordinances, not inconsistent with the laws of the state,
for carrying into effect or discharging the powers or duties conferred by the
provisions of this Act...". The Arkansas General Assembly has enacted laws con-
cerning the operation of a sewer system and the operation of a waterworks supply.
It has not enacted laws concerning the operation of the electrical utilities, ex-
cept in the form of commissions. As far as the operations by the City of the
sewage system, they must comply with the provisions of Ark Statutes 19-4101-4130
which reads: "The construction, acquisition, improvement, equipment, custody,
operation and maintenance of any such works for the collection, treatment or
disposal of sewage and the collection of revenue therefrom for the service
rendered thereby, shall be effected and supervised by a committee to be designated
for such purpose by the municipal council; which committee, however, will act under
the control of the council to such an extent as may be provided in the ordinance and
resolution appointing the committee." With regard to the operations of a water-
works and water supply system by the City, it must comply with the provisions of
Arkansas Statutes Sec. 19-4201, which reads: ".......Municipalities are authorized
to purchase and/or construct such waterworks system or any intrical part thereof
and to purchase and hold title to, lease or rent in connection therewith any land,
lake, watercourse or water supply, either inside or outside the limits of the county
in which the municipality is located.........A municipality constructing such
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Page 3-----Mayor's Veto message on Ordinance No. 1068 and Ordinance N. 1069
waterworks system or intrical part thereof may sell the water to private consumers
located inside and outside of said municipality...." Ark. Statute 19-4202.1
"DEFINITIONS. Definitions of terms used in this Act are as follows:
(a) The term "operating authority" as used herein is defined to mean either the
City Council, legislative body or board of commissioner, whichever, in a given
instance, shall be charged with the responsibility of operating the municipal
waterworks system.
(b) ............
(c) The term "operation and maintenance" as used herein, and in all other Acts
relating to municipally owned waterworks system, is defined as including, among
other items of operation and maintenance, taxes, improvements, extensions and
additions to the waterworks system."
In 1953 the Arkansas General Assembly enacted Act No. 562 which authorized a
commission to operate municipally owned water, sewer and/or light plants in cities
of the first class, as per Ark. Statutes 19-4051 19-4060, which reads: "Hereafter
a city of the first class may, by the enactment of an ordinance or ordinances,
create a commission or commissions to operate, control and supervise such of
its municipally owned water, sewer and/or light plants as may be prescribed by an
ordinance or ordinances which are not now being operated by a commission or
commissions created by or pursuant to valid, special or local acts of the Arkansas
Ligislature.......". The original Utility Commission of the City of West Memphis
was set up by ordinance under the provision of this Act. In 1957 the General
Assembly enacted Act No. 115, Arkansas Statute 19-4061, which reads: "Any city
of the first class owning and operating either a waterworks and distribution
system or electrical light plant and system, or both, for a period of at least
ten (10) years prior to the passage of this Act, which system or systems were
built by the municipality or an improvement district, may by appropriate action
by its city council create a commission for the purpose of operating and managing
such waterworks and distribution system or electrical light plant and system or
both;.......". This Act may have superseded Act 562 of 1953.
The Ordinance passed by the City Council on May 21, 1981, attempting to establish
a public utility commission for the City of l~7est Memphis, does not comply with
the Arkansas law establishing a "commission" for the operation of public utilities,
nor does it comply with the Statutes governing the operations of the waterworks
system and sewer system by the City. In addition, it grants to the body, legis-
lative functions which cannot be delegated by the City Council. Although the City
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.Page 4--------Mayor's Veto message on Ordinance No. 1068 and Ordinance No. 1069
Council can delegate ministerial, administrative or executive powers, it cannot
delegate legislative mutters properly resting in the judgment and discretion of
the Council. (Adams v Bryant, Ark. 370 S.W.2d 432). The Ordinance appears
to be defective with regard to the following matters:
1. The terms of the members of the agency must coincide with the terms of the
City Council, as they are agents of the City Council. Under Sec. 3 of the Ordi-
nance, the terms of the commission would commence upon the appointment by the
City Council under Sec. 2.
2. The "commission" has been delegated the authority and power to determine the
need for certain individuals. In my opinion, the determination of the "need" for
the employment of certain types of individuals is a legislative function of the
City Council. The City Council should determine the need, number and type of
individuals, and it can delegate to the "Commission" the responsibility to hire
such an individual. Under the powers of Section 8, the "commission" has also been
delegated the authority to establish policies, extend the facilities and make
certain purchases for supplies. The establishment of policies and extension of the
facilities are a proper function of the City Council. With regard to the letting
of bids, the City Council cannot delegate this authority to such a commission.
The conduct of the fiscal affairs of the City are governed by Arkansas Statutes
19-4401 through 19-4433. Arkansas Statute 19-4425 provides that the Mayor, or her
duly authorized representative, shall have exclusive power and responsibility
to make purchases of all supplies. In addition, it requires competitive bidding
for all sums in excess of $2,000.00. The Mayor can designate a representative to
act for her, but it cannot be in an ordinance, since this is a discretionary act
on the part of the Mayor. The authorization of such representative may be with-
drawn at any time and cannot be delegated such as is attempted in the ordinance.
Although the Arkansas General Assembly in 1971 enacted additional powers to
cities of the first class concerning "municipal affairs", as set forth in 19-1042,
which reads: "Any city of the first class is hereby authorized to perform any
function and exercise full legislative power in any and all matter of whatsoever
nature pertaining to its municipal affairs, including, but not limited to, the
power to tax." Ark Stat. 19-1043 states: "For the purpose of this Act, the
term "municipal affairs" means all matter and affairs of government germain to,
affecting or concerning the municipality or its government, except the following
which are state affairs and subject to the general laws of the State of Arkansas:
....uniform requirements for competitive bidding on contracts;...hours, vacation,
holidays and other fringe benefits of employees; the definition, use and control
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Page 5--- Mayor's Veto Message on Ordinance No. 1068 and Ordinance No. 1069
surplus revenues of municically owned utilities;....provided that the municipality
may exercise any function or legislative power upon the foregoing state affairs if
not in conflict with state laws." It expressly prohibits cities of the first class
to enact an ordinance which did not follow the "uniform requirements for competitive
bidding on contracts;....the definition, use and control of surplus revenues of
municipally owned utilities;". Sections 12 and 17 of Ordinance 1069 violates this
law.
It appears that the City of West Memphis can choose between either operating
the utilities as a commission or operating the utilities under the control
of the City Council and the authorized committees. If the utilities should operate
as a commission, then the City might be qualified to come under either Act 562 of
1953 or Act No. 115 of 1957, according to an interpretation of the word "built"
which appears in Act No. 115 of 1957. The City purchased its utility system in
1941. Since that time, it has been enlarged, and if the system is interpreted
under such situation as having been "built" by the municipality, then Act 115 of
1957 would apply. If it is interpreted that this Act only applies to municipalities
which actually "built" their system, either by the municipality or an improvement
district, then it would not apply to the City of West Memphis, since the City of
West Memphis "purchased" its original utility systems. Based upon such an inter-
pretation, then an ordinance could be enacted creating a commission like the one
which was originally established in 1954. It would have the authority to supervise
and control the water, sewer and light plants of the City. It should be noted that
Act No. 115 of 1957 only provides for a commission to operate the water system
and electrical system only. Therefore, it would still be necessary to establish a
sewer committee as provided by Ark. Stats., Sec. 19-4101. Sec. 19-4102 provides
that the operation and maintenance of a sewer system in a city, "shall be effected
and supervised by a committee to be designated for such purpose by the municipal
council;" The Statutes concerning the waterworks provides that the "operating
authority" may mean either the City Council, legislative body or a board of
commissioners, whichever shall be charged with the responsibility of operating the
municipal waterworks system. The applicable Statutes should be examined in order to
determine the extent of the authority for both of these committees.
Since there is no statutory provision for the operations of an electrical system
by a committee, only ministerial and administrative acts may be delegated by the
City Council to such a committee if it is established. The legislative functions
and decisions concerning the operations of the electrical system must remain with the
City Council.
JJ
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Page 6---Mayor's Veto message on Ordinance No. 1068 and Ordinance 1069
I feel that Ordinance No. 1069, which was passed by the City Council on May 21,
1981, is in conflict with State Statutes, which have been listed above, and
therefore, I feel that said ordinance is invalid.
acv
J CE T FERGUSON, MAYOR OF THE TY OF WEST
MEMPHIS, ARKANSAS
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