Can an Arkansas city pass an emergency ordinance after the fact and have it apply to a flood already over?

Plain-English summary

A July 2019 flash flood in Nashville, Arkansas, undermined the spillway at the city's lake and damaged the water plant. The city applied to the Arkansas Department of Emergency Management for a grant and assumed that Howard County's emergency declaration was enough to satisfy state procurement rules. Once it learned otherwise, the city council passed Ordinance 963 in 2020 declaring an emergency and waiving competitive bidding under Ark. Code Ann. § 14-58-303(b)(2), making the ordinance expressly retroactive to December 1, 2019. Senator Teague asked whether the city could do that, and whether § 14-55-704 (which governs amending a municipal code) blocked it.

Then-Attorney General Leslie Rutledge said yes to both questions, in the city's favor. Arkansas's general rule is that legislation operates prospectively, but legislation can have retroactive effect when the legislative body expressly declares retroactive intent and the retroactive application would not disturb a vested right. The city declared its intent. The opinion saw no vested right at risk: the State of Arkansas does not have a vested interest in seeing the city fail to comply with grant conditions, and a potential bidder has no property interest or vested right in being given a chance to bid. The opinion also recognized "curative" ordinances as a long-standing category of permissible retroactive legislation.

On the second question, § 14-55-704 governs the process by which an ordinance becomes part of the city's compiled municipal code; its rule that "an amendment does not give an amended ordinance retroactive effect" simply means that codifying an ordinance does not, by itself, automatically extend retroactivity. It does not prevent a city from making an ordinance retroactive when it passes it.

Currency note

This opinion was issued in 2021. 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

Why did Nashville need an ordinance at all? Wasn't the county's emergency declaration enough?
No. Section 14-58-303(b)(2) requires first-class cities to use competitive bidding for contracts above $20,000 unless the city's own governing body, by ordinance, waives the requirement "in exceptional situations where the procedure is deemed not feasible or practical or as provided under § 14-58-104." A county emergency declaration does not substitute for a city ordinance. The Arkansas Supreme Court reached a parallel conclusion in Klinger v. City of Fayetteville, 293 Ark. 128, 131, 732 S.W.2d 859, 860 (1987), requiring an "affirmative showing by enactment of a separate ordinance."

What is a vested right and why did the AG see none here?
Vested rights are substantive, constitutionally protected rights against retroactive legislation. The opinion gave two specific reasons no such right was at issue: the State has no vested interest in the city failing its grant obligations, and a potential bidder has no property interest in the bidding opportunity itself. On the second point, the opinion cited Storm Reconstr. Servs. v. City of Blytheville (E.D. Ark. 2009), which rejected a bidder's due-process claim under § 14-58-303(b)(2)(A) on the ground that the statute lets the mayor reject any bid at all.

What is "curative" legislation?
Per Carle v. Gehl, 193 Ark. 1061, 1064, 104 S.W.2d 445, 447 (1937), a curative act is "one intended to give legal effect to some past acts or transactions which are ineffective because of neglect to comply with some requirement of law." Such an act is "necessarily retroactive." The opinion implied that Ordinance 963 fit this pattern: the city had already done the spillway repair, and the ordinance retroactively supplied the missing waiver of bidding requirements.

Does this mean a city can rewrite history with retroactive ordinances any time?
No. The opinion was careful to anchor the result in two limits: the legislative body must expressly declare retroactive intent, and retroactive operation cannot disturb vested rights. Both tests would be evaluated on the facts; here, neither was a problem.

What does § 14-55-704 actually do?
It is a compilation/codification statute. Subsection (a) says cities can amend a municipal code by enacted, published ordinance. Subsection (b)(1) says ordinances inserted into the municipal code carry "the same force and effect as if included at the time of the original adoption of the municipal code." Subsection (b)(2) clarifies that an "amendment does not give an amended ordinance retroactive effect," meaning the codification act itself does not extend retroactivity. This is a clarifier, not a prohibition.

Background and statutory framework

The opinion turned on three doctrinal pieces. First, the procurement rule in § 14-58-303(b)(2) (with the bid-waiver mechanism in subsection (B)). Second, the Arkansas common-law rule on retroactivity, articulated most clearly in Scott v. Consol. Health Mgmt., Inc., 297 Ark. 601, 604, 764 S.W.2d 434, 435 (1989) (legislation operates prospectively as a default), with the express-intent exception from City of Cave Springs v. City of Rogers, 343 Ark. 652, 660, 37 S.W.3d 607, 612 (2001), and the vested-rights guard from Ark. Rural Med. Pract. Student Loan & Scholarship Bd. v. Luter, 292 Ark. 259, 262, 729 S.W.2d 402, 403 (1987). Third, the curative-legislation doctrine from Green v. Abraham, 43 Ark. 420, 423, 424-25 (1884) and Carle v. Gehl. The 1856 case State v. Johnson, 17 Ark. 407, 415 (1856), upheld a city's after-the-fact ordinance establishing an election-contest tribunal, providing an early example of permissible retroactive municipal lawmaking.

The opinion's reading of § 14-55-704 was textual and contextual. Subsection (b)(2) becomes meaningful only when read together with subsection (b)(1): codifying an amendment does not stretch its temporal reach, but it also does not prohibit the underlying ordinance from having retroactive effect on its own terms.

Citations

State statutes:

• Ark. Code Ann. § 14-58-303(b)(2) (Supp. 2019) (competitive bidding requirement)
• Ark. Code Ann. § 14-58-303(b)(2)(A) (mayor's authority to reject bids)
• Ark. Code Ann. § 14-58-303(b)(2)(B) (bid-waiver ordinance authority)
• Ark. Code Ann. § 14-58-104 (referenced exception)
• Ark. Code Ann. § 14-55-202(a) (Supp. 2019) (general/permanent ordinance reading requirements)
• Ark. Code Ann. § 14-55-701(a) (Supp. 2019) (city codification authority)
• Ark. Code Ann. § 14-55-704 (Supp. 2019) (municipal code amendment process)

Cases:

• Klinger v. City of Fayetteville, 293 Ark. 128, 732 S.W.2d 859 (1987)
• Scott v. Consol. Health Mgmt., Inc., 297 Ark. 601, 764 S.W.2d 434 (1989)
• City of Cave Springs v. City of Rogers, 343 Ark. 652, 37 S.W.3d 607 (2001)
• Ark. Rural Med. Pract. Student Loan & Scholarship Bd. v. Luter, 292 Ark. 259, 729 S.W.2d 402 (1987)
• State v. Johnson, 17 Ark. 407 (1856)
• Green v. Abraham, 43 Ark. 420 (1884)
• Carle v. Gehl, 193 Ark. 1061, 104 S.W.2d 445 (1937)
• Storm Reconstr. Servs. v. City of Blytheville, No. 3:09-CV-00021, 2009 WL 3261958 (E.D. Ark. Oct. 8, 2009)

Prior AG opinions:

• Op. Att'y Gen. 99-116
• Op. Att'y Gen. 92-254
• Op. Att'y Gen. 91-141

Source

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

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
Opinion No. 2021-017
March 1, 2021
The Honorable Larry R. Teague
State Senator
P. O. Box 903
Nashville, AR 71852
Dear Senator Teague:
This is in response to your request for an opinion on regarding the following issue:
In July of 2019, the City of Nashville had a flash flood that seriously damaged the spillway at their lake as well as their water plant. Repairs were needed as the excessive amount of rain in a short time period undermined the foundation under the spillway. The city applied for a grant from the Arkansas Department of Emergency Management to assist with repairing the spillway. They thought they had complied with all guidelines to receive the funding and that the county's emergency declaration was sufficient. Once the city was made aware an ordinance was needed, the city council approved an ordinance stating an emergency existed and made it retroactive to July 2019. A copy of Ordinance 963 is attached.

In light of this background information, you have asked the following questions:

1. Can a city pass an ordinance retroactively in this situation?
2. Would Ark. Code Ann. § 14-55-704 apply in this matter?

RESPONSE
The answer to your first question is "yes," and the answer to your second question is "no."

DISCUSSION
Question 1: Can a city pass an ordinance retroactively in this situation?

I gather that the City of Nashville passed Ordinance 963 in an attempt to comply with Ark. Code Ann. § 14-58-303(b)(2). That subdivision requires a city of the first class, such as Nashville, to request sealed competitive bids by advertisement in a local newspaper for contracts or expenditures exceeding $20,000, except that "[t]he governing body by ordinance may waive the requirements of competitive bidding in exceptional situations where the procedure is deemed not feasible or practical or as provided under § 14-58-104." In other words, the city would have to adhere to section 14-58-303's competitive bidding requirements for the repair of the Lake Nichols Spillway unless the city passed a separate ordinance waiving those requirements because of the emergency.

Section 14-58-303 does not specify whether a city may pass such an ordinance retroactively or whether the ordinance must already be in existence at the time of the procurement. The general rule is that legislation operates prospectively. However, legislation can be given retroactive effect where the legislative body expressly declares or necessarily implies an intent to make the legislation retroactive and where retroactive operation does not disturb vested rights.

Additionally, a city clearly has the power to enact "curative" legislation, as long as such legislation does not disturb a vested right. The Arkansas Supreme Court has defined a "curative act" as "one intended to give legal effect to some past acts or transactions which are ineffective because of neglect to comply with some requirement of law." Such an act is "necessarily retroactive."

In this case, the city incorrectly believed that the emergency declaration enacted by Howard County would suffice to waive the requirements of competitive bidding set forth in section 14-58-303. Once the city realized an ordinance was needed, the city council passed Ordinance 963 and expressly declared its intent that the ordinance be made retroactive to December 1, 2019. Furthermore, it does not appear that giving this ordinance retroactive effect would infringe upon any vested rights. Consequently, it is my opinion that the city may pass a retroactive ordinance to meet the requirements of section 14-58-303.

Question 2: Would Ark. Code Ann. § 14-55-704 apply in this matter?

I surmise that you have asked about Ark. Code Ann. § 14-55-704 because you have concerns that the statute's language might prevent the city from passing a retroactive ordinance. In my opinion, those concerns are unfounded.

Section 14-55-704 authorizes and sets forth the procedures for amending a municipal code. Specifically, the statute provides as follows:
(a) A municipal code may be amended from time to time by ordinances duly enacted and published as required by law and passed in such form as to indicate the intention of the legislative body of the city to make them a part of the municipal code or revision.
(b)(1) When so passed, copies of the ordinances shall be inserted in the copies of the municipal code maintained by the city clerk or recorder, and the ordinances are a part of the municipal code and have the same force and effect as if included at the time of the original adoption of the municipal code.
(2) Under this section, an amendment does not give an amended ordinance retroactive effect.

Accordingly, a city's legislative body may make an ordinance part of a city's municipal code, thereby "amending" that code, by indicating an intent to do so and by inserting copies of the ordinance into copies of the municipal code maintained by the city clerk or city recorder. I have no information regarding whether Ordinance 963 has become a part of the city's municipal code or whether it is a standalone ordinance. Given the ordinance's wording and subject matter, it seems unlikely that it has been incorporated into the city's municipal code. In that case, section 14-55-704 would not apply.

But even if Ordinance 963 has been incorporated into the city's municipal code, I do not believe section 14-55-704 prevents the city from making the ordinance retroactive. Subdivision 14-55-704(b)(1) declares that an ordinance added to the municipal code is to be regarded as having "the same force and effect" as the rest of the municipal code that it amends, just as if it had been included at the time of the code's original adoption. In other words, the ordinance does not carry some lesser force of law simply because it was added later as an amendment to the code.

Subdivision 14-55-704(b)(2) then states: "Under this section, an amendment does not give an amended ordinance retroactive effect."

Reading this latter provision in the context of the entire statute makes clear that the term "amendment" refers to the process by which an ordinance becomes part of the municipal code. Thus, adding an ordinance to the municipal code does not bestow any retroactive effect on an ordinance. The legislature's mention of retroactivity in subdivision 14-55-704(b)(2) makes sense, given the pronouncement in the preceding subdivision that amendments to the municipal code "have the same force and effect as if included at the time of the original adoption of the municipal code." Subdivision 14-55-704(b)(2) simply clarifies that subdivision 14-55-704(b)(1) does not automatically extend retroactivity to an ordinance. Subdivision (b)(2) does not stand as a prohibition against adding a retroactive ordinance to a municipal code.

Sincerely,
LESLIE RUTLEDGE
Attorney General