Can an Arkansas city publish only the one-page ordinance in the newspaper and skip the long attachment, to save money?

Plain-English summary

A state representative asked the AG a practical question: when a city adopts a lengthy code change by passing a one- or two-page ordinance that incorporates the actual code text by reference as an exhibit, can the city save money by publishing only the short ordinance in the newspaper and leaving the exhibit unpublished?

The AG's answer was no, unless the exhibit fits into one of two specific statutory categories. Section 14-55-206(a)(1)(A) requires that "all bylaws or ordinances of a general or permanent nature and all those imposing any fine, penalty, or forfeiture shall be published in some newspaper published in the municipality." The Arkansas Supreme Court has consistently held that procedural requirements for adopting ordinances are mandatory; in City of Fort Smith v. O.K. Foods, the court was explicit that strict compliance is required for the ordinance to be valid.

Two carve-outs exist. Section 14-55-206(b) allows cities to adopt by reference book-form codes covering zoning, building construction, plumbing, electrical wiring, "or other similar work," provided no fewer than three copies are filed for public examination in the clerk's office (unless the code is available electronically). Section 14-55-207 allows adoption by reference of "technical codes, regulations, or standards," defined to include building, zoning, health, electrical, and plumbing codes, plus the Arkansas Criminal Code, again provided three copies are filed and notice is published about the availability of the materials for inspection.

Outside those categories, the AG read the statute strictly. If the exhibit is not one of the enumerated codes or regulations, the city has to publish the full text, including the exhibit.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Arkansas Code §§ 14-55-201 to -207 govern the adoption of city ordinances. The Arkansas Supreme Court has consistently applied a strict-compliance standard to these procedural requirements. Phillips v. City of Eureka Springs invalidated an ordinance whose publication had been arranged by a private citizen rather than by the city. Brooks v. City of Benton reversed summary judgment for a city when there was a genuine issue whether a zoning ordinance was published in strict compliance. City of Fort Smith v. O.K. Foods explicitly held that the procedural requirements are mandatory and that an ordinance is invalid if they are not met.

The publication rule in § 14-55-206(a)(1)(A) requires general or permanent ordinances and those carrying any fine or penalty to be published in a municipal newspaper. Section 14-55-206(a)(1)(B) provides an alternative for municipalities without a local newspaper: post notices in five of the most public places, as designated by the governing body.

The first carve-out is § 14-55-206(b). It allows cities to adopt by reference book-form codes governing zoning, building construction, plumbing, electrical wiring, or similar work. The reference must be by title, not just by citation, and three copies of the code must be filed for public examination at the clerk's office (or made electronically available).

The second carve-out is § 14-55-207. It is broader in some respects and narrower in others. It allows adoption by reference of "technical codes," defined as building, zoning, health, electrical, or plumbing codes, plus "regulations," defined to include the Arkansas Criminal Code. Three copies must be filed electronically or by hard copy in the clerk's office, available before the ordinance passes. The city must publish notice in a paper of general circulation that the materials are available for inspection.

Together those two sections define the entire universe of materials Arkansas cities may incorporate by reference without full newspaper publication. Anything else, the AG concluded, must be published in full.

Common questions

A city wants to adopt a long animal-control code as an exhibit. Can it publish just the ordinance?

Probably not. Animal-control codes are not within the enumerated categories of zoning, building, plumbing, electrical, or other similar work, and they are not on the technical-codes list in § 14-55-207. Unless the General Assembly amends those provisions, the city has to publish the full text.

Does a city without a newspaper have to publish at all?

It has to post written or printed notices in five of the most public places in the city, designated by the city's governing body. § 14-55-206(a)(1)(B).

Why is the rule so strict?

The Arkansas Supreme Court has read the procedural requirements as mandatory, not directory, because the goal of newspaper publication is to give the public actual notice of ordinances. Failure to publish properly can invalidate the ordinance. The AG noted strict compliance is the standard.

Are there practical workarounds?

The opinion mentioned only the two statutory carve-outs. If the underlying material is a technical code or zoning/building code, the adoption-by-reference procedure is straightforward: file three copies for public inspection and follow the publication-notice procedure. If not, the city has to pay the publication cost or seek a statutory amendment.

Citations

• Ark. Code Ann. § 14-55-201 et seq. (Repl. 1998 and Supp. 2015) (general procedures for adopting city ordinances)
• Ark. Code Ann. § 14-55-206 (Supp. 2015) (publication requirements)
• Ark. Code Ann. § 14-55-206(a)(1)(A) (newspaper publication of general/permanent ordinances)
• Ark. Code Ann. § 14-55-206(a)(1)(B) (alternative posting in five public places where no newspaper exists)
• Ark. Code Ann. § 14-55-206(b) (adoption by reference of zoning, building, plumbing, electrical codes)
• Ark. Code Ann. § 14-55-207 (Supp. 2015) (adoption by reference of technical codes and regulations)
• Phillips v. City of Eureka Springs, 312 Ark. 57, 847 S.W.2d 21 (1993)
• Brooks v. City of Benton, 308 Ark. 571, 826 S.W.2d 259 (1992)
• City of Fort Smith v. O.K. Foods, Inc., 293 Ark. 379, 738 S.W.2d 96 (1987)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2015-101
November 12, 2015
The Honorable Sue Scott
State Representative
1412 Hilltop Farms Lane
Rogers, AR 72756
Dear Representative Scott:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
I am writing in response to your request for an opinion concerning the publication of city ordinances. Your question relates to the following language under Ark. Code Ann. § 14-55-206(a)(1)(A) (Supp. 2015):

All bylaws or ordinances of a general or permanent nature and all those imposing any fine, penalty, or forfeiture shall be published in some newspaper published in the municipality.

The question posed concerns what "publishing" an Ordinance means in actual application. Correspondence attached to your request for my opinion explains that when lengthy or voluminous changes are proposed to a city's code of ordinances, often the city will draft an "Ordinance," and will incorporate and adopt by reference as an "Exhibit" the lengthy attachment containing the new code section. With this background in mind, you ask:

Assuming that "notice" to the public is the goal [of the publication requirement] and, considering the type of activities allowed in Ark. Code Ann. § 14-55-206(b) (allowing publication by reference to voluminous codes), is it sufficient to publish just the one, or two, page "Ordinance" and not have to incur the considerable expense of publishing lengthy "attachments" and "exhibits?"

RESPONSE

In my opinion, the answer is "no," unless the lengthy attachments and exhibits referenced in the question fall within the class of rules, regulations, or technical codes permitted to be adopted by reference under Ark. Code Ann. § 14-55-206(b) or § 14-55-207.

DISCUSSION

The General Assembly has established procedures regarding the adoption of city ordinances. These procedures include publishing or posting requirements. The Arkansas Supreme Court has consistently applied a strict-compliance standard with respect to these procedural requirements. In City of Fort Smith v. O.K. Foods, Inc., the court specifically noted that the procedural requirements for the adoption of ordinances are mandatory and must be complied with in order for the ordinance in question to be valid.

The publication requirements for proposed city ordinances, as noted in your request for my opinion, are found in Ark. Code Ann. § 14-55-206:

All bylaws or ordinances of a general or permanent nature and all those imposing any fine, penalty, or forfeiture shall be published in some newspaper published in the municipality.

However, that statute permits cities to incorporate and adopt by reference certain types of pre-published codes or regulations without needing to publish them at length, as long as certain other requirements are met:

As to ordinances establishing rules and regulations for zoning, construction of buildings, the installation of plumbing, the installation of electric wiring, or other similar work, where such rules and regulations have been printed as a code in book form, the code or provisions thereof may be published by the municipality by reference to title of the code without further publication or posting thereof. However, no fewer than three (3) copies of the code shall be filed for use and examination by the public in the office of the clerk or recorder of the municipality after the adoption thereof if there is no electronic form of the code available for examination by the public.

Cities may similarly adopt certain technical codes by reference, under Ark. Code Ann. § 14-55-207. That section states:

(a) Every municipality in the State of Arkansas is authorized by the passage of a municipal ordinance to adopt by reference technical codes, regulations, or standards, without setting forth the provisions of the code or parts thereof, if three (3) copies of the code, or the pertinent parts thereof, and any related documents are filed either electronically or by hard copy in the office of the clerk of the municipality for inspection and view by the public before the passage of the ordinance.

(b) The term "technical codes" shall include any building, zoning, health, electrical, or plumbing codes, and the term "regulations" shall include any criminal code of the State of Arkansas.

(c) It is the duty of the municipality to give a notice to the public, by publication in a paper of general circulation within the municipality, stating that copies of the code, or the pertinent parts thereof, and the related documents are open to public examination either electronically or by hard copy before the passage of the ordinance adopting the code.

These types of codes, rules, regulations, or standards are all that state law allows cities to incorporate and adopt by reference. I understand that some changes to city codes can be "lengthy or voluminous," according to the background information you have provided, and that publication of these ordinances in full can impose significant costs upon a city. But state law is clear on this point. Thus, in my opinion, cities must continue to publish in a local newspaper all such ordinances, with any attached exhibits, unless the exhibits are among the types of codes, rules, regulations, or standards specified in Ark. Code Ann. § 14-55-206(b) or § 14-55-207.

Sincerely,
LESLIE RUTLEDGE
Attorney General