A portion of a memo sent from City Attorney Kit Williams to A&P commissioners last week.

The sixteen applicants vying for seats on the Fayetteville Advertising and Promotion Commission could have to wait another month to find out if they’ve been chosen to fill two upcoming vacancies.

The soon-to-be-open seats belong to commissioners Maudie Schmitt and Bob Davis, whose terms expire at the end of March. As owner of Cafe Rue Orleans, Schmitt holds one of four tourism industry positions. Davis holds the sole at-large seat.

The March 11 agenda lists a review of the applicants as the second item for the meeting, but Fayetteville City Attorney Kit Williams said the group cannot appoint replacements for seats that haven’t yet opened.

In a memo sent Friday to commissioners (and City Council members) Matthew Petty and Justin Tennant, along with council Nominating Committee chair Adella Gray, Williams quoted Arkansas law (A.C.A. § 26-75-605) which states, “Whether resulting from expiration of a regular term or otherwise, a vacancy on the commission…shall be filled by appointment made by the remaining members of the commission, with the approval of the (City Council).”

» Download the memo

Marilyn Heifner, executive director of the commission, said the group has always made a nomination at the last regular meeting of the commissioner who is leaving, which usually occurs in March. The reason being, she said, is so that the new member can be ratified by the City Council prior to the following month’s A&P meeting.

Williams said because state law requires that an actual vacancy must exist before any movement to fill the seats can take place, the current procedure is incorrect.

“The A&P Commission may not anticipate a vacancy and vote to appoint a replacement before the vacancy actually exists,” said Williams. “Nor could any commissioner vote to appoint someone to succeed himself or herself on the A&P Commission.”

Waiting until April to make an appointment, however, could create a scenario in which months could pass before any new members are ratified by the council, causing the committee to hold several meetings without a full membership.

Regular term expired vacancies are typically filled using the following procedure:

February – A&P Commission notifies the City Clerk of a pending vacancy. The clerk then advertises the vacancy along with the city’s other open board and committee seats. Applications are given to Marilyn Heifner, the A&P’s executive director, who then forwards the applications to the commission for review.
March – The commission discusses and appoints a new commissioner. The A&P forwards the appointment to the City Council’s Nominating Committee during its first quarterly meeting. The committee interviews the applicant and then forwards their name to the City Council for ratification in mid- to late-March.
April – The new member begins serving on the commission.

By this procedure, appointments made in April instead of March would have to be sent to the Nominating Committee’s second quarterly meeting in June before being ratified by the City Council. The new member would then begin serving on the commission in July.

Alderman/Commissioner Petty has suggested a new procedure that would be legal and speed up the process.

Petty’s suggestion is to have the Nominating Committee interview all applicants in March and then send a nomination to the commission in time for the April meeting. The commission could either appoint that nominee or select another applicant to be ratified by the City Council later that month. The new commissioner could begin serving at the following A&P meeting in May.

“This new process makes a lot of sense,” said Petty on Monday. “It allows the Nominating Committee to conduct interviews before the vacancy is open, and as it opens, the commission is able to take action.”

With potential differing opinions on how to interpret the state law, it’s unclear what action the commission will take – if any – regarding the current applicants during the March meeting.

The commission meets at 2 p.m. Monday, March 11 inside the Fayetteville Town Center.