Can a city director in Arkansas's city administrator form of government also serve as fire chief?

Plain-English summary

A state representative asked the AG two municipal-law questions after a member of a city board of directors was denied the fire chief position. The first question was whether the dual-office prohibition in Ark. Code Ann. § 14-42-107(a)(2) applies to board members in the "city administrator" form of municipal government. The second was whether records had to be photocopied before being destroyed at the end of their retention period.

AG Leslie Rutledge said § 14-42-107(a)(2) probably does not apply. That statute, located in the chapter on "Government of Municipalities Generally," prohibits an "alderman or council member" from being appointed to any municipal office. On the plain-meaning rule (citing Weiss v. McFadden), "alderman or council member" describes the mayor-council form of government, not the city administrator form. The legislature has amended that section three times since creating the city administrator form in 1967 and never extended it to city directors.

But the result the representative described, blocking the city director from being fire chief, is correct, just under a different statute. Section 14-48-110(a)(3), located in the chapter on the city administrator form, prohibits a city director from "serv[ing] the city in any other capacity" except as Chapter 48 expressly permits. If serving as fire chief counts as serving the city in another capacity (and it almost certainly does), that statute does the work.

On the second question, the AG said no general state statute requires reproducing municipal records before destruction. Arkansas law permits local officials to make reproductions of paper documents prior to destruction, but does not require it. Federal law, local ordinances, and litigation-related preservation obligations may still apply.

Currency note

This opinion was issued in 2016. 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.

Common questions

Q: What is the "city administrator form" of Arkansas municipal government?
A: One of several forms an Arkansas city can adopt. It is authorized at Ark. Code Ann. ch. 48 and was created in 1967. Cities under this form are governed by a board of directors with a city administrator (a professional manager) running daily operations. It's distinct from the mayor-council (aldermanic) form, which is the default for most cities.

Q: So can the city director hold any city job at all?
A: Not unless Chapter 48 expressly says so. Section 14-48-110(a)(3) says the city director "may not serve the city in any other capacity" except as Chapter 48 permits. That language is broad and reaches paid city jobs like fire chief.

Q: What about the History Commission step for record destruction?
A: The AG's footnote notes that under § 13-3-107(b)(2), state and local officials must give the Arkansas History Commission written notice before destroying "outdated records, other than ephemeral materials," and must turn over records the Commission determines have historical value.

Q: Are reproductions ever required?
A: Sometimes, yes. The AG noted that federal law or local ordinances might require it for specific records, and a litigation-hold notice or anticipated litigation triggers a preservation duty. The AG declined to survey for those because they are record-specific.

Q: Where in Arkansas law is the dual-office ban for aldermen?
A: Ark. Code Ann. § 14-42-107(a)(2): "No alderman or council member shall be appointed to any municipal office, except in cases provided for in this subtitle, during the time for which he or she may have been elected."

Background and statutory framework

Arkansas has multiple municipal forms. The default mayor-council (aldermanic) form is governed by Title 14, Chapter 42. The city administrator form (authorized in 1967) is governed by Chapter 48. The city manager form has its own chapter as well. Each form has its own dual-service rule.

For the mayor-council form, § 14-42-107(a)(2) bars an "alderman or council member" from any other municipal office. The legislature has amended that subsection in 1981, 2003, and 2009 without extending it to city directors, so a plain-meaning analysis under Weiss v. McFadden keeps the scope limited.

For the city administrator form, § 14-48-110(a)(3) supplies the parallel rule for city directors: they may not "serve the city in any other capacity," subject only to whatever Chapter 48 expressly authorizes.

On records retention, no general statute requires reproduction before destruction at the end of a valid retention period. Sections 14-2-201 through 14-2-204 permit local officials to make authenticated reproductions of paper documents before destruction, but the operative requirements are litigation-preservation obligations, federal law (for specific document categories), local ordinances, and the History Commission notice rule at § 13-3-107(b)(2).

Citations and references

Statutes:

• Ark. Code Ann. § 14-42-107(a)(2) (aldermanic dual-office ban)
• Ark. Code Ann. § 14-48-110(a)(3) (city administrator form dual-service ban)
• Ark. Code Ann. §§ 14-2-201 to -204 (local government records reproduction)
• Ark. Code Ann. § 13-3-107(b)(2) (History Commission notice)

Cases:

• Weiss v. McFadden, 353 Ark. 868, 120 S.W.3d 545 (2003) (plain-meaning rule)

Source

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

Original opinion text

Opinion No. 2016-079
November 10, 2016
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

The Honorable Robin Lundstrum
State Representative
1327 Elm Springs Road
Springdale, AR 72262-9119

Dear Representative Lundstrum:

This is in response to your request for my opinion on the following questions:

1. Does [Ark. Code Ann. § 14-42-107(a)(2)] apply to board members in the city administrator form of government?
2. When public records have reached the end of a retention period that conforms to state/federal statutes and city policies, must these records be copied prior to the original records being destroyed?

You note in your first question that a member of a city board of directors (I presume in a city with a city administrator form of municipal government) was not considered for the position of fire chief based on section 14-42-107(a)(2).

RESPONSE

I take it from the background information for your first question that the recited statute was used as the basis for denying the city director the fire chief's position. In my opinion, that statute likely does not apply under the facts you have provided. But another statute, Ark. Code Ann. § 14-48-110(a)(3), is directly applicable and prohibits a city director in a city with the city administrator form of government from serving the city "in any other capacity."

With respect to your second question and under state law, the answer is "no," in my opinion. But federal laws or local ordinances governing a particular record should also be consulted.

DISCUSSION

Question 1: Does [Ark. Code Ann. § 14-42-107(a)(2)] apply to board members in the city administrator form of government?

The first rule of statutory interpretation is to construe a statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Section 14-42-107(a)(2), in the Arkansas Code chapter titled "Government of Municipalities Generally," states that "[n]o alderman or council member shall be appointed to any municipal office, except in cases provided for in this subtitle, during the time for which he or she may have been elected" (emphasis added). Under a plain-meaning analysis, this statute would only apply in the aldermanic (mayor-council) form of city government. While it might be argued that the term "council member" under this general statute should be broad enough to encompass a member of a city board of directors (as both are members of their respective cities' governing bodies), the plain-meaning rule would suggest otherwise.

Bolstering this view is the fact that the Legislature has amended section 14-42-107(a) no fewer than three times since it authorized the city administrator form of municipal government in 1967. Had the General Assembly meant to apply this statute to the governing bodies of other forms of city government, it has had opportunity to clarify the statute to do so.

But irrespective of whether section 14-42-107(a)(2) applies under the facts as you have presented them, another section of the Arkansas Code is directly applicable. Section 14-48-110, found in Code Chapter 48 concerning the city administrator form of municipal government, clearly states that a city director, unless expressly permitted by Chapter 48, "may not serve the city in any other capacity."

Presuming for the purposes of this opinion that the fire chief's position is one that would "serve the city," then section 14-48-110 would prevent the city director you mention from simultaneously serving as a director and the fire chief, thus achieving the same result as in the facts you have presented.

Question 2: When public records have reached the end of a retention period that conforms to state/federal statutes and city policies, must these records be copied prior to the original records being destroyed?

Your question appears to be asking about record retention issues in the context of municipal records. Furthermore, your question suggests that the municipal records you are asking about are ones that have a defined, term-of-years retention period, and are not ones that must be permanently kept. It is from these perspectives that I address your question.

My research has not disclosed any general state statute that requires a city to reproduce and continue to keep records that have reached the end of the records' retention period. Arkansas law does permit local government officials to make reproductions of paper documents prior to their destruction so long as the reproductions are properly authenticated and accurately reproduced. And federal law and local ordinances may have to be analyzed to determine whether they contain any such requirements with respect to a particular record. Finally, a particular document may be subject to a litigation-hold notice or otherwise relevant to anticipated litigation. In such circumstances, it must be retained.

In the absence of any relevant federal statute, local ordinance, or litigation-related issue, however, the answer to this question is "no," in my opinion.

Sincerely,

LESLIE RUTLEDGE
Attorney General