Clint Lancaster, a Benton, Ark., attorney, addressed the city board during the meeting on Tuesday, Sept. 5, over the veto enacted by Mayor Judy Nation the previous December.
Lancaster said he was retained by a client in Siloam Springs that he refused to name who was against the mayor vetoing a decision not to renew the contract with Main Street Siloam Springs the previous December. Lancaster is known for successfully suing Hunter Biden, the son of President Joe Biden for child support on two separate occasions.
During the Dec. 6 city board meeting the city board voted 3-2 not to extend the contract with Main Street into 2023 with then-city director Brad Burns and current directors Reid Carroll and Mindy Hunt voting to continue the contract and directors David Allen and Lesa Rissler voting against the contract.
Former city administrator Phillip Patterson explained that, because there were not four affirmative votes, the contract was not approved. Three days later, Nation issued a veto on the board's decision and sent the matter back to the city board for further review without notifying the board until the agenda was released to the public a week later.
The board would then have to vote to override the veto with a two-thirds vote (or five out of seven directors) of the board to override the veto. Rissler made a motion to override the veto, but the motion died due to the lack of a second during the Dec. 20 meeting.
Allen and Rissler said the veto was illegal because no action was taken on the Main Street contract and the mayor can only veto an item that was passed.
Rissler sent an email to the Arkansas Municipal League in January requesting an opinion on the mayor's veto. The Arkansas Municipal League's legal team agreed with Allen and Rissler.
A joint email was sent by Rissler to State Representative Delia Haak (R-17) and State Senator Tyler Dees (R-35) on Jan. 26 to have them present this to the Bureau of Legislative Research on the legality of the veto and the contract that came from it, according to the email from Rissler.
Rissler said Haak had told her and Dees that she would take it to the attorney general, according to a follow-up text from Rissler.
On April 18, Haak responded to Rissler's email by saying that she spoke to the Arkansas House Legal Counsel, who advised her not to request the opinion of the attorney general's office since the city had moved forward to renew the Main Street contract, according to the email from Haak.
"His legal counsel was the city has the authority to determine how they would handle such a situation in the future but that an attorney general opinion was not necessary to rule either way on the actions taken on past actions since the city had moved forward," Haak said in her email. "The city attorney can advise the board of directors as to any clarification by ordinance that is deemed necessary for future contracts."
Haak also texted the following statement:
"I attended Tuesday night's board of directors meeting to show support for the city during a difficult time. It was disheartening to hear the board be threatened with a lawsuit if they do not do the will of the client, even though it is not certain if this person lives within the city limits.
"In hindsight, directors Rissler and Blair-Finn asked me to seek advice on requesting an Attorney General's opinion. The advice of the House of Representatives' legal counsel was that the board could pass a resolution clarifying the decision of the board on the issue in question. That is where the city finds itself again this week. Siloam Springs has a history of working together through tough issues for the good of the community, and I'm sure it will do so now as well."
On Aug. 16, Attorney General Tim Griffin issued a letter stating that the AG's office supported Allen and Rissler's claim that the veto was illegal.
The client's position
Lancaster said that his client would like the city to pass a resolution for the funds already given to Main Street this fiscal year, for the mayor not to abuse the veto power again, for the city to no longer fund Main Street and for the mayor to issue a formal apology to the client.
"Now, I don't like to threaten people," Lancaster said. "But I'm telling you, if you don't do this, I'm going to sue you. I'm going to sue you next week for an illegal exaction and for an injunction. And I'm going to win because this is blackletter law."
A blackletter law is a law that is well-established legal rules that are certain and are no longer disputed, according to Cornell Law School's website.
Lancaster presented a letter to each board member, the mayor, the city administrator, the local media and the audience.
The letter states that the Arkansas Supreme Court had ruled in Mitchell v. Hopper, 153 Ark 515, 241 S.W. 10,11 (1922) that a veto power only exists when a legislative body passes an item out of its chamber. Once the item passes the executive then has the power to veto the passed measure, the letter states.
The letter also states that the Supreme Court of the United States also held in Wright v. the United States 302 U.S. 583, 596 (1938), that a veto power only arises when a measure has passed from a legislative body and is presented to the executive pursuant to the Presentment Clause. If the legislation at issue had passed and presented to the executive, then it is subject to a veto.
Lancaster gave the city a week to fulfill the client's wishes.
The City Board's position
Director Betsy Blair said her biggest problem was with the veto itself.
"I've said in the previous board meeting that I think our mayor was given very poor legal advice," Blair said. "Our city attorney still stands by that the veto was lawful. How do we resolve that?"
Blair said she believes Nation will not do this again, but she is not sure what the next mayor will do. If the mayor is allowed to veto anything that passes and does not pass, it gives the mayor, who is more of a figurehead, absolute power, Blair said.
Blair asked City Attorney Jay Williams what he had to say about it. Williams said mayors in other forms of government could not veto an item like this, but in the form of government that Siloam Springs has, the case is different.
"The problem with your argument, in my view, is the same with the attorney general's opinion and the same with the Arkansas Municipal League's opinion, for that matter; they all start with an ungrounded assumption of how vetoes should work and how they work in other forms of government," Williams said.
Williams went on to say, "What's being missed is what does the statute actually say? Our mayor's veto power is, and it says the mayor has the power to veto any decision or all decisions.
"And when you talk about blackletter law, the Arkansas Supreme Court, as well as the U.S. Supreme Court, has said, when you're trying to determine what a statute means, you look at what it actually says, what is the common understanding? So in this case, we have the power to veto decisions."
Williams emailed a further response regarding the presentation on Tuesday (see BREAKOUT).
Director Ken Wiles said if the board engaged in a contract with Main Street to engage in services the city can't or won't provide, it would be the city's right to engage in that contract, and it may be that one individual may not like who the city chooses to engage those services from.
Lancaster said the analysis was correct, but there was also a declaratory judgment out there. Wiles said the city had options which Wiles said he liked but also said that one week was not enough to rectify everything.
Conceding to the point, Lancaster said he would make sure that his client was amiable to granting the city extra time. Lancaster said he put in the one week's timeframe because of hostile responses he has received from other parties that he was retained to sue.
He also said that if the city is actively working to resolve the matter, it would be counterproductive to demand one week.
"So if you if the board needs or likes or requests more time to consider it," Lancaster said. "I will impress upon my clients the importance of that time."
Allen asked Wiles if he wanted a new contract for the payments already paid to Main Street Siloam Springs. Wiles said he was asking if the board wanted to create a contract for what was already paid to Main Street and one for the last payment for the year to Main Street.
Allen also asked how the city can unwind the veto to disallow a precedent being set. Lancaster replied that he would draft a document to help with that.
City directors also approved and heard the following items:
Regular meeting minutes for the Aug. 15 city board meeting.
Dedication of utility easements for 850 U.S. Highway 412.
Dedication of utility easements and right-of-way to 2700 Waukesha Road.
Resolution 47-23 concerning a special use development permit for 709 South Lincoln Street.
Resolution 48-23 regarding a special use runway pavement permit for 928 South Crow Street.
Resolution 49-23 concerning a special use development permit for 2790 Meridian Place Unit A.
Purchase of a hydro excavation machine from Verneer Midsouth in the amount of $121,753.
Budget amendment for the purchase of an ambulance from Pinnacle Emergency Vehicles in the amount of $325,000.
Contracts and approvals
Contract with Tri-Star Contractors in the amount of $951,985.
Construction contract for runway pavement and lighting rehabilitation with Garver in the amount of $44,787.
Placing Ordinance 23-21 concerning the rezoning of the 2000 block of Brashears Road from C-2 (Roadway commercial) to I-1 (Industrial) on its third reading and then taking a separate vote to adopt the ordinance.
Placing Ordinance 23-22 regarding the creation of a public services department and hiring a director on its first and only reading. Then taking a separate vote to adopt the ordinance and a second vote to adopt an emergency clause.
Resolution 46-23 concerning the levy of 2o23 taxes for collection in 2024.
Resolution 50-23 regarding golf course improvements in the amount of $50,000.
Resolution 51-23 concerning the declaration of a nuisance for 1012 East Harvard Street.
East Main Street improvements.