The Honorable David R. Malone State Senator P.O. Box 1048 Fayetteville, AR 72701

Dear Senator Malone:

This is in response to your request for an opinion regarding the election of municipal officials and aldermen, now that the electors of the City of Fayetteville have decided to organize under a new aldermanic form of government. Specifically, you note that the electors voted to make the change from a city manager to a mayor/city council form of government on May 26, 1992, and that the officials will be elected at the next general election on November 3, 1992. Your questions are restated and addressed below in the order posed.

1. Is a run-off election required for both aldermen and other elected officials if no candidate receives a clear majority in the November 3, 1992, election?

It is my opinion that the answer to this question is "no." As noted in your correspondence, Attorney General Opinion 91-393 states that if there is a special election, a runoff is not required. I believe that Op. Att'y Gen. 91-393 applies to the present situation because the November 3, 1992, election is considered a special election. Arkansas Code Annotated §14-38-113(a)(C)(i) (1987) requires that a special election be called if the election to change forms of government is six (6) months or more prior to the next regular general election of municipal officials. Section 14-43-305(a) (1987) states that cities of the first class under 50,000 population, on the Tuesday following the first Monday in November of 1970, shall elect a mayor and do so every four (4) years. Section 14-43-315(a) (1987) applies to the city attorney and contains the same requirements as those for mayor. Section 14-43-316(a) (1987) applies to the city clerk. This latter section contains the same language as the two previous sections, with the exception of the year, which is 1954 rather than 1970. According to §§ 14-43-305, -315 and -316, the next regular general election for municipal officials is not until November, 1994. The November 3, election is more than six (6) months prior to the next regular general election. It is therefore my opinion that the November 3, election is a special election, and that no runoff will be required.

2. Is it permissible for Fayetteville's new aldermen and other elected officials to take office on January 1, 1993?

It is my opinion that the aldermen and other elected officials will take office immediately upon being elected. Section14-38-113 states: "When the officials are elected, the municipality shall proceed to organize and operate under the newly adopted form of government." A.C.A. § 14-38-113(a)(C)(i). The newly elected officials will serve until 1994 when, at that time, the regular general election will be held. It is therefore my opinion that because the new form of government has been enacted, the new municipal officials will immediately proceed to operate the government.

3. May Fayetteville's present board of directors decide by ordinance that the new aldermen elected on November 3, 1992, be elected by wards rather than at-large?

It is my opinion that the answer to this question is "no." Section 14-43-307(b)(1)(A) (1987) permits the election of aldermen by ward when the city council, by ordinance, authorizes it. This section does not, however, apply to the city manager form of government because, under the city manager form, no city council exists. It is therefore my opinion that the current board cannot pass an ordinance authorizing the election of aldermen by wards rather than at-large.

The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elisabeth A. Walker.

Sincerely,

WINSTON BRYANT Attorney General

JW/WB:cyh