A proposed ordinance to rescind Ordinance 2014-037 caused intense debate between several members of the Quorum Court and County Judge Jerry Holmes at the September Quorum Court meeting.
State procurement laws governing the purchase of vehicles for county government states that if the county purchases a new vehicle, there is a bidding process required. However, if the county purchases a used vehicle, the county doesn’t have to go through the bidding process. The used vehicle purchase is seen by several on the court as a loophole to purchase more expensive vehicles because there is no bidding process required. The purchase of a new vehicle could be cheaper than the purchase of a used vehicle.
In 2014 the Quorum Court passed Ordinance 2014-037 to establish a used vehicle purchase policy for the county. The ordinance’s purpose was to ensure that “It is in the best interest of the taxpayers of Cleburne County that these purchases be as inexpensive as possible while maintaining the quality necessary to perform the required job.”
The ordinance established the Gross Vehicle Weight (GVW) of 14,000 pounds or less and stated that “Desired options above basic shall directly relate to a County responsibility and be in compliance with a state approved procurement process. It also established that if the purchase price was more than $20,000, the Quorum Court would have to approve the purchase.
In February 2015, Judge Holmes requested that Attorney General Leslie Rutledge issue an opinion regarding the constitutionality of Ordinance 2014-037. The questions that were asked to be resolved were: 1) Did the Quorum Court violate the separation of powers between the legislative branch and the executive branch of county government? 2) Does the Quorum Court have the authority to impose more restrictive vehicle purchasing requirements than currently set out in state law?; and, 3) Does the Quorum Court have the power to direct the County to purchase vehicles through the State Procurement Bid?
Previous AG opinions and a subsequent AG opinion established that once monies have been appropriated to a line item in the budget “a county quorum court cannot constitutionally require the county judge to obtain the quorum court’s approval before making specific purchases with funds that have been property appropriated.” Under the Arkansas Constitution, the Quorum Court is authorized to appropriate funds for the county operating budget. However, only county elected officials are authorized to disburse appropriated funds.
The AG couldn’t answer the second question because it isn’t “authorized or equipped to construe local ordinances when rendering official opinions.”
The third question to the AG had to do with the bidding process for the purchase of a new vehicle, where any new vehicle over $20,000 had to go through the bidding process. Ordinance 2014-037 specifically addresses the purchase of used vehicles, which doesn’t set a limit or require a bidding process. In July of 2015, the Quorum Court overrode Judge Holmes’ veto of the ordinance.
“Why is this coming up?” asked Steve Choate, JP District 9.
“I still don’t feel like this ordinance is valid,” responded Holmes.
“It’s valid until it is ruled invalid. Has there been an authority that has ruled it invalid?” asked Choate.
“No, it has not, but we’re to that point,” responded Holmes. “Hopefully, we can do that right here. You all entrust me to purchase a $140,000 used bulldozer or a $200-250,000 grader.”
“Weren’t there bid processes on a $250,000 grader?” Choate asked
“No, not on a used one, no, sir,” responded Holmes.
“So, there’s no protections,” stated Choate.
“There’s no guidelines on 500 hours of use and over two years old either,” countered Holmes. “It’s the same with a vehicle that has so many miles and over two years old. I spoke to some folks on the Quorum Court to ask why voted for this ordinance. I think there was an issue with some past administrations, but why was it that the court decided to deal with it in this administration?”
“Has anything hindered you from doing your job?” asked Sam Henegar, JP District 2. “Have you gone to do anything you’ve said, and can’t do it because of that ordinance?”
“Say I was going to go buy a truck similar to what I’ve got and it’s going to be next year. I’d probably like to,” replied Holmes. “Has it changed anything? I think there was some consensus then that I was going to use only local dealerships. I’ve used all the dealerships plus some state vehicles and still intend to do that.”
“I’m hearing that you feel like it’s over-restrictive or stepped on toes or whatever,” said Henegar. “You haven’t attempted to implement a complete ordinance, I guess is what I’m trying to say. If this has restricted you, the first part, then why don’t we use the other part that allows you to come to the Quorum Court for approval?”
“Because once the money is appropriated into a line item, according to the Attorney General, that’s not necessary,” Holmes responded.
“It is now, because this is the rule, but you haven’t done that,” stated Henegar. “Perhaps, you will when you get ready to purchase.”
“That’s what I’m saying. I think the rule is out of place,” said Holmes.
Henegar went on to explain to Holmes and the rest of the Quorum Court that during two previous administrations and in the current administration, there had been four purchases of used vehicles that would have violated Ordinance 2014-037 had it been in effect at the time.
“This ordinance came into effect because a majority on this court perceived there to be a problem,” Henegar pointed out. “It hasn’t been a problem anymore. So, rather you would have purchased or you wouldn’t have with this ordinance, it stopped. To convince me that revoking this ordinance, that problem isn’t going to catch up with us, I’m not willing to go there.”
“Claude Dill did it, Brenda Hunt did it, and then you did it,” Henegar elaborated further. “We’ve bought used pickups for $8-10,000 more than what you could have bought a brand new one that could have served the same purpose.”
Holmes explained that one of his biggest concerns was Cleburne County has local dealerships that spend thousands of dollars every year promoting the events in Heber Springs to help draw people to the area.
“I don’t know the exact number between Red River Dodge, Payton’s and Jayson Jones Ford, but I’d say they have between 100 to 200 employees between them. They’re providing jobs that pays taxes in our county and that county government survives off these taxes,” stated Holmes. “Even if we spend $2-3,000 more on vehicle purchases, we need to support our local area. I want to save the county all the money I can, but still and yet, our county services should be supporting the local economy as much as possible.”
“One of the reasons I ran for this job is because I was interested in an issue that had come to the Quorum Court,” Choate interjected. “I watched two or three JP’s open their packets at that meeting – had them for a week – opened the packet and that’s the first time they looked at anything.”
“There were only three members of this court on the court prior to you taking office. That was Sam (Henegar), Brent (Foust), and Tim (Caldwell). The rest of us came on pretty much the same time,” Choate continued. “We didn’t have an opportunity to look at it and say, ‘Okay, is there a difficulty here or is there a problem?’ We looked at it and decided that there was a difficulty and that it was a problem. We spent a lot of time and a lot of effort. It took us weeks and months to get this written and rewritten to get it to the point where it is now. I’m not going to say that it was a personal thing, because I agree with you, it isn’t. You know the story about one past judge that found a vehicle he liked and it didn’t have enough miles on it and they said to come back on Monday.”
“I took this job, like Steve said, because I wanted to protect tax dollars,” added Alan Malone, JP District 5. “I think you’re doing a stellar job, but you won’t be the county judge forever. This will prevent this loophole in the law, because of the state’s used car policy, from becoming a problem again. I don’t think that the used vehicle exception is in there for people to go buy an entire class vehicle because one of the vehicles purchased by a prior administration was a Cadillac Escalade.”
Chad Evans, JP District 6, had emailed the Association of Arkansas Counties that afternoon to get a better understanding of the Attorney General’s opinion on the matter.
“The Quorum Court cannot encroach on an executive procurement order. That was from them. That’s basically our attorneys. That’s the part that bothers me,” stated Evans. “I voted for it because I thought it was the best thing. But the state comes back and says, we didn’t, then I got to rethink it and that’s where I’m at right now.”
“The only way you can address this issue is at budget time by putting only $20,000 in the line item for vehicles,” interjected Henegar.
“Well, that’s a way around it,” replied Evans. “That’s the way we do the sheriff. You know, we put only so much in their budget. They buy used vehicles.”
“The only way to do it with the budget, what we did with this ordinance, is to put a flat $20,000 in the vehicle line,” explained Henegar. “Whenever the Judge needs a vehicle and that’s not enough, he’s got to come to the Court and get the money, which is what this ordinance does.”
The rescinding ordinance passed on a 6 to 5 vote. Those voting yes were Michael Lange, JP District 7; Chad Evans; Willie Stone, JP District 4; Jesse Pate, JP District 1; Paul Roberts, JP District 10; and, Lance Reynolds, JP District 11. Those voting no were Alan Malone; Tim Caldwell, JP District 3; Sam Henegar; Brent Foust, JP District 8; and Steve Choate. The Emergency Clause failed to pass so the rescinding ordinance will not take effect until thirty days after the signing of the ordinance by Judge Holmes.