The Eureka Springs City Council held a special meeting Tuesday, Jan. 7, to consider a single agenda item: to decide on a special election for a referendum that would allow voters to determine the fate of a permanent entertainment district at Pine Mountain Village.

Ultimately, the council took no action after hearing from city attorney Forrest Jacobi that there was no basis for a special election, but there was sharp disagreement between Jacobi and city council member Harry Meyer over the status of the permanent entertainment district moving forward.

Jacobi also took issue with theArkansas Municipal League’s opinion that a special election should be held within the next few months.

The city council voted in September to approve the permanent entertainment district at Pine Mountain Village, following months of discussions and public comments on the issue. Meyer cast the lone dissenting vote on the ordinance establishing the district.

The ordinance took effect in late October, with stipulations that it will be effective for two years before requiring another council vote and that it can be revoked at any time at the suggestion of the city’s police or fire chief.

Eureka Springs resident Karen Lindblad circulated a referendum petition, seeking a public vote on the ordinance. Carroll County Clerk Connie Doss wrote a letter to Lindblad and city clerk treasurer Ida Meyer on Oct. 31, informing them that she had certified 153 of the 169 petition signatures that were submitted, surpassing the total of 148 certified signatures needed to trigger a referendum.

At the beginning of Tuesday’s special council meeting, Harry Meyer asked Jacobi to read a section of Arkansas state law, which says: “Municipal referendum petition measures shall be submitted to the electors at a regular general election unless the petition expressly calls for a special election.”

Jacobi and Harry Meyer agreed that the petition does not call for a special election, meaning the referendum would not be on the ballot until 2026. The two disagreed, however, on whether the permanent entertainment district should remain in effect until voters decide on the referendum.

Council member Terry McClung asked Jacobi about the status of the permanent district.

‘Null and void?’

“What I’m asking is, so the ordinance that we passed approving a permanent entertainment district is null and void?” McClung said. “Is that what you’re saying?”

“No,” Jacobi replied. “Absolutely not. … They are a legally permitted permanent entertainment district, unless the city council — which has total control over temporary and permanent things — wishes to revoke it, or change it, or otherwise.”

Council member Steve Holifield asked if the owners of Pine Mountain Village would be able to continue operating the permanent entertainment district until a vote is held.

“My question was: So they can go ahead and do their entertainment?” Holifield said.

“Yes,” Jacobi answered.

“The petition stuff doesn’t stop it from happening?” Holifield asked.

“No, it doesn’t,” Jacobi replied.

“I think there’s some confusion,” Harry Meyer said. “It’s held in abeyance until the election. So this temporary permanent entertainment district, is what it is, is going to be held in abeyance. It can’t go into effect until the election.”

“I disagree with that,” Jacobi said.

Harry Meyer then raised the issue of a permanent downtown entertainment district that was approved by the council in February 2020. The ordinance approving that district included a sunset clause making it effective only from March 13 through Sept. 30, 2020. Before the ordinance could take effect, however, a petition seeking a public vote was certified. In May 2020, then city clerk treasurer Ann Armstrong said she had been told by then-city attorney Tim Weaver, who is now deceased, that the petition would put the entertainment district on hold until after the election. In November 2020, the ordinance creating the permanent entertainment district was voted down by a margin of less than 40 votes.

“They didn’t have to hold it in abeyance,” Jacobi said. “That was just a courtesy, I think, to the people who signed it. There is no statutory, mandatory change in this district, a permanent entertainment district, until it goes to ballot. It can go on. It will go on until the election in 2026.”

MUNICIPAL LEAGUE OPINION

Ida Meyer, however, said the city had received a different opinion from the Arkansas Municipal League.

“The Municipal League told us that the ordinance is not in effect until it is referred to the people,” Ida Meyer said. “That’s what a referendum does. That’s what I was informed by the Municipal League.”

Ida Meyer referred to the same section of code — Arkansas Code § 709011 (h) — that was read by Jacobi earlier in the meeting.

The code says: “Municipal referendum petition measures shall be submitted to the electors at a regular general election unless the petition expressly calls for a special election. If the date set by the petition does not allow sufficient time to comply with election procedures, then the city or town council shall fix the date for any special election on the referendum measure. The date of any special election shall be set in accordance with § 7-11-201 et seq. but in no event more than one hundred twenty (120) calendar days after the date of certification of sufficiency by the municipal clerk.”

“If you look at (the opinion of Arkansas Municipal League attorney Caleb Alexander-McKinzie) … the argument with Forrest’s opinion is that it can’t go to a special election unless it’s stated on the petition or that the 120 days is if we can’t fulfill the normal election procedures. The Municipal League is saying that we can’t follow normal election procedures because it’s not within 120 days. That is their opinion. They also let me know that the ordinance is null until it is voted on. That’s their opinion. I don’t know if …” “But he says: ‘It’s my understanding of the law,’ and we have a lawyer right here,” said council member Susane Gruning.

“Yes,” Jacobi said. “Let me tell you, what you just quoted was, yes, they’re talking about timetables when there is a special election passed. If there’s no special election, the timetable is the next regular general election. That’s the way it’s set up. There is no basis for calling a special election. None.”

“I’m simply just stating what the Municipal League says here,” Ida Meyer replied. “That’s all I got. I’m not doing the back and forth. I’m just stating what the Municipal League says.”

“I know,” Jacobi said. “And what I’m stating is, the Municipal League says that you should talk to the city attorney and follow his advice, and then they turn around and give advice that’s contrary to me — which I’ve informed them of. I don’t even know why we’re having this meeting. There’s no basis for having a special election. None.”

“Part of this has to do with the Arkansas Constitution,” Mayor Butch Berry said. “It requires — and again, this is where we’re getting into semantics — special elections shall be called within 120 days, by constitution. So we can’t have it in two years, according to the Arkansas Constitution.”

“It’s not a special election,” Jacobi said.

“The petition doesn’t say ‘special election,’ ” Harry Meyer said.

“Please don’t interrupt me,” Berry said. “I’m just quoting what the Municipal League, again, says and referring it back to our city attorney. They’re referring to the Arkansas Constitution that says it’s got to be quoted within 120 days.”

“Special elections!” Jacobi said.

“This says, again, the special election and he’s claiming …” Berry said before Jacobi interjected.

“We have no special election here,” Jacobi said. “There is no basis for spending money. Look, not only that, even if you spent money on a special election, which would be very poorly attended, guess what, it passes. All we do is start passing more temporary entertainment districts. It means nothing. It’s just a waste of time. It does not meet any of the criteria to call a special election. The Municipal League keeps talking about special election. Unless the petition specifically, expressly asked for a special election, you don’t get one. Now, can the city, sua sponte, just out of the blue, call for a special election? Absolutely? If it meets one of these criteria. It doesn’t.”

Gruning then asked Jacobi to address his difference of opinion with the Municipal League regarding the status of the permanent entertainment district pending a public vote.

“I’m sorry. The Municipal League has no business weighing in on this,” Jacobi said. “They should have never been asked. I was never approached or asked about my opinion on this, and the chain of command is: You want a question? Go to the city attorney. So, they were contacted behind my back and then I was told: ‘Oh, we’re having a special election and we’re going to do things that are inappropriate, too,’before they even asked me. I did not draft this ordinance. This is totally improper. Why is is totally improper? Because it refers to special elections. There’s no special election here.”

“So, putting the special election aside,” Gruning asked, “are they allowed to continue holding a permanent entertainment district?”

“No,” Harry Meyer responded.

“I’m asking our legal expert,” Gruning said.

“Yes,” Jacobi said. “Nothing’s revoked them.”

‘NO RECOURSE’

In response to a question from McClung, Jacobi said opponents of the permanent entertainment district cannot seek an injunction in circuit court.

“That’s what I want to know, is what is their recourse on us?” McClung said.

“There is no recourse,” Jacobi said. “They are not damaged at all. They’ve asked for a vote on the permanent entertainment district. They’re going to get a vote. They’re not damaged in the slightest.”

“So you’re saying that there’s no way that they’ll be able to take the city to court to enforce having the election?” Berry said.

“Theyhavenogrounds to ask the city for a special election,” Jacobi said.

“They don’t want one,” Harry Meyer said.

“They don’t want one,” Jacobi said. “They haven’t asked for one. There’s no grounds for it. They filed a petition. That’s fine. They’re going to get a vote in two years. It’s easily within the time allowed.”

“I’ve got to say something,” Harry Meyer said. “If the last time there was a petition certified to hold in abeyance a permanent entertainment district on Spring Street, and it was well over 120 days when it finally came up to the public, then the only difference between that petition and this petition is the number of days to the next election. That’s all there is.”

“That’s true,” Jacobi answered.

“It’s the only difference between the two,” Harry Meyer continued. “Whether they can have an entertainment district or not is irrelevant. The law is the law, and there is absolutely no reason for the city to spend any money on a special election because it’s not called for.”

“So you concur, Mr. Meyer, that we pass on the election and they still operate like they have been?” McClung asked.

“No,” Harry Meyer answered. “I don’t know that. I don’t think so, but that doesn’t matter. It doesn’t matter. The issue is whether it is legal and justified to spend the money on a special election now when we did not do it in 2020.”

“What matters is the fact that we approved an ordinance for them to operate,” McClung said.

“It’s the same thing within 2020,” Harry Meyer responded. “We approved an ordinance to have a permanent entertainment district on Spring Street. Remember? And it was held in abeyance until the fall election so they couldn’t put it in effect.”

“From what I understand, in 2020, with that election, it was shortly after the approval of the ordinance,” Gruning said. “They just did not have the time to put any events in place because the election was right after, and it was voted down. So, they were still allowed to operate had they had an event. They had wristbands and everything downtown.”

“Wasn’t it from February to November that they couldn’t do anything? Right?” Harry Meyer asked.

“No,” Gruning said. “They were allowed to until the election, from what I was told.”

“I think that’s right,” McClung said.

“OK,” Harry Meyer said.

“No different from this one,” Gruning said. “They will operate for two years until the election.”

At that point, McClung made a motion to adjourn the meeting. Holifield seconded the motion and the council voted unanimously in favor.