Old ordinance could slow creation of new - Board created in 2008 to bring water to rural areas similar to fledgling law

Tuesday, February 1, 2011

CARROLL COUNTY -- An existing ordinance may stand in the way of efforts to create an agency to supply water to rural areas of the county.

County officials hurriedly sought answers after questions from Carroll County News about Ordinance 2008-14, passed in April 2008. That ordinance created a public facilities board to bring water to areas of the county not served by municipal water systems, although board members were never named.

In the past four months, the quorum court has worked toward a similar ordinance, which has passed on two readings. With one more successful vote, that ordinance could become law after the July 16 meeting of the quorum court.

During the current discussion, reference has been made to this subject coming to the table in 2008, but no one has mentioned that an ordinance was successfully passed.

County Judge Sam Barr sought advice from Deputy Prosecuting Attorney Devon Closser, and from Mark Whitmore, Chief Legal Counsel for the Association of Arkansas Counties.

Closser emphasized the preliminary nature of the legal advice, but she and Whitmore both agree that the quorum court has already created a public facilities board for rural water, and cannot create another one. Ordinance 2008-14 cannot be amended, because that ordinance created a completely independent organization, one which the county cannot regulate.

Closser and Whitmore both believe the quorum court will be able to repeal Ordinance 2008-14, and the quorum court could then continue the process of approving the current ordinance.

Board members were never named, and no action has been taken on behalf of the Water Users Facilities Board of Carroll County, the name adopted by the ordinance.

The county would also have the option of naming board members and proceeding under the 2008 ordinance, but it differs in some critical ways from the current version. For example, the 2008 ordinance calls for replacement board members to be nominated by the county judge and approved by the quorum court. The 2010 ordinance was amended to allow users of the water system to elect replacement board members.

Other amendments brought specific language preventing condemnation of private wells or forced participation in the rural water system.

Ordinance 2008-14 includes some language asserting controls by the quorum court, over the appointment and salary of an executive director, for example, or the rate schedule. The ordinance also requires quorum court approval before any changes in the state enabling legislation will apply to the public facilities board. The members of the quorum court have learned in discussions this year that no county legislation can supercede the pertinent state legislation.

By its nature, a public facilities board is an independent entity.

During quorum court debate over the past several months, the justices of the peace have weighed the merits and disadvantages of a public facilities board.

Several JPs have spoken in favor of creating a county agency, under county control, but the county would also be liable for the agency's debts. Bonds issued for the initial funding of a public facilities board would only be repaid by customers.

In an interview Friday, former county judge Richard Williams said, "No one came forward who was interested in being on the board." He said he had hoped the JPs would suggest candidates.

Williams said he now opposes the 2008 ordinance. "If I knew the details, I would not have been for it," he said, explaining that county government would have no control over a public facilities board, and that board would also have the power of eminent domain.

"I would have vetoed this, knowing about the surrender of citizens' rights," he said. "I made a mistake."

Williams said he would rather see an agency under county control, even if the county might thereby incur debt. "If you don't want the responsibility, don't do it!" he said.

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