House committee should reject awful executive sessions bill
By Roy Ockert Jr.
Feb. 3, 2015
From what originally appeared to be an honorable attempt to improve the Arkansas Freedom of Information Act, state Rep. Nate Bell, R-Mena, is now pushing a bill that would strike at the very foundation of the state’s model access law.
Bell is sponsoring House Bill 1054, titled “An Act to Preserve the Integrity of Executive Sessions ...” If that’s what it would actually do, he would have strong support from Arkansas news organizations, which rely on FOIA daily for access to public meetings and records.
Originally, Bell said his intent was to correct the law because it allows public boards, councils, commissions and other bodies to meet in secret without any means to determine if the law is followed. Specifically, meetings may be closed to the public only “for the purpose of considering employment, appointment, promotion, demotion, disciplining, or resignation of any public officer or employee” — loosely translated as personnel matters.
Further, no one is allowed to meet with the board in executive session except the agency’s chief administrator, a public employee who is under review and that employee’s immediate supervisor.
Any actions taken in closed session must then be voted on after the board reconvenes in open session. No record of executive sessions is made.
Rep. Bell noticed something that every beginning reporter learns quickly: This provision is violated more than any other in the Arkansas FOIA.
So he proposed a bill requiring every public board to make an audio tape of each executive session — a good idea, at least theoretically. Then he added provisions making it impractical.
First, he specified that every audio tape would be submitted to the local prosecuting attorney, who would review it to ensure the board was in compliance with the law — or assign it to a volunteer review panel. Prosecuting attorneys didn’t like a ton of extra work being dumped on them with no funding for the extra staff, facilities and equipment that would be needed.
Naturally, the associations that represent school boards, municipalities and county government didn’t like the idea either.
A couple of weeks ago he met with the Arkansas Freedom of Information Coalition, a loose-knit group of journalists, news organization representatives and legal experts that monitors proposals to change the law. Such attempts tend to happen often when the Legislature is in session.
Bell told us that he intended to add an amendment that, among other things, would require anyone wanting a review of an executive session tape outside his or her home county to get two other citizens from that county to join in the request. That would apply an extra burden, for example, on The Jonesboro Sun, which covers eight counties regularly.
Coalition members told him that was, like the use of prosecutors, impractical, but he was insistent that he couldn’t pass the bill otherwise.
His subsequent amendment, though, was quite different.
Now HB 1054 requires each board, council or commission to keep its own executive session audio tapes for one year, not a bad idea but it would impose some extra work and expense.
However, he added an egregious provision obviously aimed at gaining support from the local government and school associations. The governing body would be able to request its attorney to sit in on an executive session so as to monitor compliance with FOIA and provide legal counsel on the matter at hand. Another provision prohibits the attorney from discussing anything else while in the executive session, including pending litigation involving the board.
The Arkansas School Boards Association and Municipal League have long advocated allowing boards and councils to meet in closed sessions with their attorneys. In fact, the first challenge to FOIA in 1968 came from the North Little Rock City Council’s insistence on meeting with the city attorney. In Laman v. McCord the Arkansas Supreme Court made clear that wasn’t acceptable under the law.
An executive session is allowed under FOIA to protect the privacy of a public employee whose employment or job performance is under review. Everything else the school board, city council, quorum court or state commission does is the public’s business so it can’t and shouldn’t be done in private.
The law does not prevent the board’s chief administrator from seeking legal counsel about a relevant personnel matter and then passing it along to the board in executive session.
But HB 1054 proposes to give the board an unfair advantage to the public agency by allowing its attorney to be present but not an attorney for the employee under review.
Worse, it purports to make the board’s lawyer an arbiter of whether the board is acting properly in executive session. But in reality that attorney is an advocate for the board and could not testify because of attorney-client privilege.
HB 1054 has other inherent problems, such as limiting the use of executive session audio tapes to criminal prosecutions when, in fact, almost all FOIA challenges are made under civil law. It also appears to prescribe a criminal penalty for anyone who sits in on an illegal executive session or who listens to an audio tape without authorization.
HB 1054 is an awful bill that would subvert the public interest. It should be rejected outright by the House State Agencies and Governmental Affairs Committee.
Roy Ockert is editor emeritus of The Jonesboro Sun. He may be reached by e-mail at royo@suddenlink.net.