Eureka Springs is considering legal action to keep enforcing its anti-discrimination ordinance after a state law goes into effect next month.
But what exactly the city can do to take the offensive isn't clear.
"Usually, citizens are the ones filing suit, not the cities," said Eureka Springs Mayor Robert "Butch" Berry.
Berry spoke Tuesday with David Schoen, a lawyer with the Arkansas Municipal League, to get advice.
"He's never run into this situation before," Berry said. "So right now we're still in limbo trying to decide what can be done."
Berry called Schoen because the City Council voted unanimously on Monday to seek advice from the Municipal League's lawyers. Berry said Schoen plans to research the matter, and they will talk again before the council meets June 22. Schoen didn't return a call for comment Tuesday.
Founded in 1934, the Municipal League acts as the official representative of Arkansas cities and towns before the state and federal governments, according to its mission statement. It also provides information and offers a forum for discussion.
The Eureka Springs City Council passed Ordinance 2223 on Feb. 9. It's the broadest law of its kind in Arkansas, providing anti-discrimination protection for gay and transgender residents and visitors in areas of employment, housing and public accommodations. It went into effect Feb. 10.
Initially, Berry said Arkansas Act 137 -- which passed Feb. 24 and will take effect July 22 -- would render the city's ordinance unenforceable. But what exactly Act 137 would do has become a matter of debate.
Act 137 prevent cities and counties from passing laws that add protected classes that don't already exist in state law. But Little Rock City Attorney Tom Carpenter wrote in an opinion April 19 that Arkansas law already provides protections for "sexual orientation" and "gender identity," just not in the state's Civil Rights Act. He cited Arkansas Code Annotated 6-18-514, which regards bullying, and Arkansas Code Annotated 9-4-106, which involves domestic-abuse shelters.
Eureka Springs Alderman James DeVito said the City Council doesn't need to take a wait-and-see attitude. He said the council should consider taking legal action because 72 percent of city voters supported the ordinance in a special election May 12. The official results were 582-231.
"When the vote was so overwhelmingly in favor of the ordinance ... I feel we have an obligation as City Council to continue with this because we have received a mandate from our constituency regarding this issue," DeVito said at Monday's council meeting. "In the 30 years I've been in this community, I've never seen the community come together the way they did on this vote."
DeVito said Eureka Springs residents will have had these civil-rights protections for more than five months when the state law kicks in, taking those rights away from them.
When the Municipal League takes on a case, it usually costs the city about $3,000, said DeVito.
In Monday's meeting, council member Mickey Schneider said her initial preference was to keep enforcing Ordinance 2223 and let the state "come after us" after Act 137 takes effect in July.
But on Tuesday, Schneider said she liked the idea of taking the offensive.
"I like the idea of going after the state because they made an illegal law," she said. "I love the idea of us going after them."
In Monday's council meeting, City Attorney Tim Weaver said the Municipal League might be more likely to take on the "home rule" aspect of the issue, that is whether the state can enact laws like Act 137 regulating a city's ability to pass its own laws. Other council members agreed that it was an important part of the matter.
"I feel it's unfair for the state to overstep their authority and tell us we can't pass local ordinances defending our own citizens," DeVito told the council.
Some Arkansas cities, including Little Rock, have recently passed anti-discrimination ordinances that protect municipal employees and contractors who do business with the cities. Eureka Springs has had an ordinance providing those protections since 2006.
Last year, the Fayetteville City Council was the first in the state to pass a broad civil-rights ordinance, like the one in Eureka Springs, but it was repealed in a Dec. 9 special election.
Fayetteville will try again to pass an ordinance like the one the council approved last year.
Aldermen Adella Gray and Matthew Petty have proposed a new anti-discrimination ordinance, which will be read for the first time at the Fayetteville City Council's meeting Tuesday. If it passes the council, the ordinance will go to a citywide vote Sept. 8.
Metro on 06/10/2015