Opinion No. ( 2003 )

The Honorable Bobby L. Glover State Senator P.O. Box 1 Carlisle, AR 72024

Dear Senator Glover:

I am writing in response to your request for my opinion on a question arising from the following facts, which are reported in a letter to you from two City of Cabot aldermen:

The City of Cabot adopted the Southern Building Code by ordinance 31-1997[.] The Southern Building Code on page section [sic] 102.2.1 authorizes the Governing Body of the City to appoint a Building Official. The city has an ordinance on the table to appoint the building Official and set his salary.

In researching City ordinances and resolutions we find no record of a building official being appointed by the Council or the Mayor. The Building Official will be the Chief inspector in the building inspection section. The inspection section is not a department. The building Chief inspector is directly under the city engineer. The City engineer is over the planning section. The planning section is directly under the Public Works Director. Therefore this position definitely is not a Department Head as discussed in Arkansas code 14-42-110.

On behalf of the two aldermen, you have posed a question I will paraphrase as follows:

Is the attached proposed Cabot City Ordinance, which would appoint a city building official and set the salary for that position, in conflict with the provisions of A.C.A. § 14-42-110 or any other law?

RESPONSE

In my opinion, the answer to your question is "no."

Your question is the same as one I recently addressed in the attached Ark. Op. Att'y Gen. No. 2003-254. In that opinion, I offered the following conclusion:

Although A.C.A. § 14-42-110 affords the mayor a general power of appointment of department heads, A.C.A. § 14-56-202 makes it clear that the individual charged with the task of monitoring construction within the city will be appointed by the city council. This express designation persuades me that notwithstanding the provisions of A.C.A. § 14-42-110, the legislature would give effect to the hiring process specified in subsection 102.2.1 of the Standard Building Code, which the legislature has authorized the city to incorporate into its ordinances pursuant to A.C.A. § 14-55-207.

Although I am neither equipped nor authorized to act as a finder of fact, if the background information recited above is accurate, it would appear that the "building official" could not properly be designated as a "department head" — a conclusion that would only reinforce my previous opinion that the city council, not the mayor, should determine who should serve as the building official and under what terms. Accordingly, I believe the proposed ordinance you have attached to your request is consistent with Arkansas law.

Assistant Attorney General Jack Druff prepared the foregoing, which I hereby approve.

Sincerely,

MIKE BEEBE Attorney General

MB:JD/cyh

Enclosure