Opinion No.

The Honorable Jerry Brown State Representative 1001 Oakwood Drive Wynne, AR 72396-1801

Dear Representative Brown:

I am writing in response to your request for an opinion, which I summarize as follows:

Question One: What are the powers and duties of a city clerk?

Question Two: Who may modify the powers and duties of the city clerk?

Question Three: Who may introduce an ordinance before the city council?

RESPONSE

With respect to Question One, the general powers and duties of a city clerk are set forth in the Arkansas Code, which I have recounted below. Additionally, any relevant local ordinance must be referenced to determine the specific duties of a city clerk with respect to a particular municipality. With respect to Question Two, any applicable local ordinances may be modified by the city council through ordinance while duties required by state law may be modified by the General Assembly through amendments to the applicable statutes. With respect to Question Three, absent a law or any local procedural rules, in my opinion general rules of parliamentary procedure allow only members of the city council, in this case the duly elected alderman or the mayor as ex officio president of the council, to introduce motions on which the body may act.

Question One: What Are the Powers and Duties of a City Clerk?

I will initially note that it is my understanding that the questions posed arise from a city of the first class with a mayor-council form of government that has a city clerk-treasurer.

As established in the Arkansas Code, in a city of the first class, a "city clerk-treasurer shall give the bond, and perform the duties as are prescribed by law and shall receive a salary as is prescribed by ordinance. . . ." A.C.A. § 14-43-316(c) (Supp. 2007); see also A.C.A. § 14-43-313 (Supp. 2007) (stating that city clerks shall perform the duties that are established by ordinance in a city of the first class). Additionally, the Arkansas Code specifically sets forth the following duties of a city clerk in a city of the first class:

(a) The city clerk in cities of the first class shall have the custody of all the laws and ordinances of the city and shall keep a regular and correct journal of the proceedings of the city council.

(b)(1) The city clerk, city clerk-treasurer, or city treasurer, as the case may be, shall be required to submit, quarterly, a full report and a detailed statement of the financial condition of the city. This report shall show receipts, disbursements, and balance on hand, together with all liabilities of the city.

A.C.A. § 14-43-506 (Supp. 2007). Additionally, A.C.A. § 14-43-406 (Repl. 1998) provides in pertinent part:

(a) Each city council shall cause to be provided for its clerk's office a seal, in the center of which shall be the name of the city and around the margin the words "city clerk."

(b) The seal shall be affixed to all transcripts, orders, or certificates which it may be necessary or proper to authenticate under the provisions of this subtitle, or of any bylaw or ordinance of the city.

Id. at (a) — (b). With respect to the duties of a treasurer, the Arkansas Code provides simply:

Treasurers in cities of the first class shall be required to make similar reports as prescribed in § 14-43-506 and shall perform such other duties as may be required by the ordinances of the city.

A.C.A. § 14-43-507 (Repl. 1998).

There is no provision of Arkansas law that purports to authorize a city of the first class to have an official "recorder." Cities of the second class and incorporated towns may include officials who are "recorders" as described in pertinent part by one of my predecessors:

In Arkansas, cities of the first class elect a "city clerk." See A.C.A. § 14-43-303(a)(1)(A)(ii) and § 14-43-313. Cities of the second-class elect a recorder and a treasurer. See A.C.A. § 14-44-109(a). These offices may be combined in a second-class city into an office called "recorder-treasurer." See A.C.A. §§ 14-44-114 and-115. Incorporated towns elect a "recorder-treasurer," who shall also be, and act as "clerk of the town." See A.C.A. § 14-45-108 and 14-45-107(a).

Op. Att'y Gen. 2002-270 at 1.

These statutes constitute a basic overview of the powers and duties of a clerk-treasurer in a city of the first class. As noted above, further duties may be prescribed by ordinance. Review of the pertinent duly enacted ordinances should be undertaken by local counsel to more fully answer your question.

Question Two: Who may modify the powers and duties of the cityclerk?

In my opinion, the General Assembly may modify any statutory duties of a city clerk through an amendment to the applicable statute. Similarly, the city council may amend the existing ordinances that define the duties and authority of a city clerk. See A.C.A. §§ 14-43-313 and-316.

Question Three: Who may introduce an ordinance before the citycouncil?

In my opinion, absent a local parliamentary rule to the contrary, only the members of the city council, either aldermen or the mayor, may properly introduce an ordinance onto the city council's agenda.

Initially, I note that the composition of the city council consists of both the aldermen duly elected to the council and the mayor who acts asex officio president of the council and may vote when his or her vote is necessary for passage of items before the council. See A.C.A. §14-43-501(b)(1)(B) (Supp. 2007). The Arkansas Code does not address the procedure for introduction of ordinances in municipalities.Compare A.C.A. § 14-14-905(1) (requiring all county ordinances to be introduced by a justice of the peace before the quorum court may act upon such motion). Neither have I been provided with any local parliamentary ordinances. As consistently noted by my predecessors, in the absence of statutory guidance or local procedural rules, the general rules of parliamentary procedure, such as Robert's Rules of Order ("RONR (10^th ed.)"), apply. See Op. Att'y Gen. 2006-034; seealso Op. Att'y Gen. 95-152 (citing 62 C.J.S. Municipal Corporations § 232(a)); and 62 C.J.S. Municipal Corporations § 232(a) (Supp. 2004).

Under standard rules of parliamentary procedure, business may only be brought before an assembly by means of a motion. Robert's Rules of Order Newly Revised ("RONR") p. 26, l. 14-15 (10th Ed. 2000). A motion is made by a "member" of the assembly proposing some specific action,id. at p. 26, l.19-20, requiring the member to obtain the floor of the meeting, id. at p. 28, l. 11-14. The general rules of parliamentary procedure do not allow a nonmember to introduce a motion before an assembly.

As noted above, in a city of the first class with a mayor-council form of government, "members" of the city council, who may introduce a motion to adopt an ordinance under general rules of parliamentary procedure, consist of the duly elected aldermen and the mayor, who acts as exofficio president of the council. A.C.A. § 14-43-501. Assistant Attorney General Joel DiPippa prepared the foregoing opinion which I hereby approve.

Sincerely,

DUSTIN McDANIEL Attorney General