The Honorable Morril Harriman State Senator 522 Main Street Van Buren, Ar 72956
Dear Senator Harriman:
This is in response to your request for an opinion regarding A.C.A. § 14-42-110, which states that unless otherwise provided by law, mayors in first and second class cities and incorporated towns have the power to appoint and remove department heads, subject to an override vote of two-thirds of the city council. Your specific question in this regard is as follows:
Does this Code section expressly or implicitly mean that a two-thirds extraordinary majority of a city council can initiate and/or consummate removal of a department head when the mayor declines to remove or appoint the same?
It is my opinion that the answer to this question is "no." This Code section does not, on its face, state that the two-thirds majority vote applies other than as an override of the mayor's action. Section 14-42-110(a) states:
Unless otherwise provided by state law, mayors in cities of the first class and second class and incorporated towns shall have the power to appoint and remove all department heads, including city and town marshals when an ordinance has been passed making city and town marshals appointed, unless the city or town council shall, by a two-thirds (2/3) majority of the total membership of the council, vote to override the mayor's action.
Nor, in my opinion, can it be inferred from this language that the council has been granted authority under § 14-42-110 to act in the first instance, independent of the mayor, to appoint or remove department heads. Legislative intent must be discerned from the language employed if a statute is clear and unambiguous on its face. Wilcox v. Safley, 298 Ark. 159, 766 S.W.2d 12 (1989). Section 14-42-110 must be construed to apply in those instances where the mayor has appointed or removed a department head.
The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elisabeth A. Walker.
Sincerely,
WINSTON BRYANT Attorney General
WB:arb