DOING GOVERNMENT BUSINESS IN SECRET: Failure of Arkansas’ Open Meetings Law
Arkansas was an early leader in requiring the state and local governments to conduct their business under the public eye. The Encyclopedia of Arkansas brags on our Freedom of Information Act of 1967 this way:
“The Arkansas Freedom of Information Act (FOIA), signed into law by Governor Winthrop Rockefeller on February 14, 1967, is generally considered one of the strongest and best models for open government by investigative reporters and others who research public records for various purposes. The intent of the FOIA is to keep government business and government records open and accessible to the people of Arkansas.”[i]
The FOIA, which has been also referred to as the “people’s law” was passed to wrestle control from political machines and to stop backroom deals.
“At that time in Arkansas’s history, the bulk of the political power in Arkansas was held in the hands of a few. That included local political machines from the municipal level up to and including government at the state level.”[ii]
The Freedom of Information Act has two parts. The first part requires government to do business in public meetings with a few exceptions, such as security matters. The second part of the law gives the public access to government documents.
Our focus today is only on the first part of the FOIA, open public meetings.
Is the FOIA’s open meetings law still a strong model? After fifty-three years of amendments, legal opinions, changing technology, and cities and counties just ignoring the law with little or no consequence, the once impressive law is in urgent need of repair and rejuvenation.
Secret Meetings in Pope County
Pope County is the site of the most controversial issue to come before local officials in a long time. The stakes are exceedingly high over whether there will be a casino and if so, which applicant will get the casino. Amid all the controversy, county officials decided to hold secret meetings to address the issues.
Pope County was thrust into controversy because of the passage of Amendment 100 to the Arkansas Constitution. The amendment authorizes casinos at Oaklawn in Hot Springs, Southland in West Memphis, one in Jefferson County and one in Pope County. Before a casino could be built in Jefferson or Pope Counties the Amendment required the licensee to obtain approval of local officials. Jefferson County welcomed a casino into its community but the reception was very different in Pope County. At the same time the voters of the state were approving the casinos, the voters of Pope County were approving an ordinance initiated by the people which said local officials could not approve a casino except after a local election on the question.
With the money to be made being very high, the Pope County casino question has sparked lawsuits and political wrangling, with Pope County citizens opposed to a casino squaring off against politicians eager to approve a casino and eager to receive tax money, and with competing applicants for a casino also squaring off.
Despite the high tensions over the issue, some politicians in Pope County decided to meet out of public view to have private discussions.
May 6, 2019: [County Judge Ben] “Cross and three justices of the peace met with Russellville School District Superintendent Mark Gotcher to discuss the possibility of a casino and the financial benefit the schools would receive.”
May 6, 2019: [According to Special Prosecutor Jason Barrett] “evidence shows that a meeting was to be held without the required public notice at Shiloh Park in Russellville, but it was moved to the county courthouse after Justice of the Peace Joseph Pearson insisted on notifying the press.”
Aug. 1, 2019: “After a scheduled meeting of the Quorum Court, six justices of the peace met for dinner at the Old Bank Bar and Grill in Russellville. Barrett said in the letter that there is video but no audio of the gathering. Barrett cited several attorney general opinions that say a social gathering would violate the Freedom of Information Act if city business was discussed. “It is somewhat beyond belief that the conversation did not continue regarding the business of the governing body, but there is no direct proof of that being the case at this meeting,” Barrett said.”
Aug. 13, 2019: “William Wetzel, a local real estate agent for several casino vendors, treated some justices of the peace to about $2,000 in “food and beverages” at an undisclosed location.”
Aug. 13, 2019: “The Pope County Quorum Court on Aug. 13 endorsed Cherokee Nation Businesses for the license there.”[iii]
In endorsing Cherokee Nation Businesses, the Pope County Quorum Court also repealed the ordinance passed by the voters to require an election before approval could be given.
When word got out about the May 6 and August 1 meetings, a FOIA complaint was filed on behalf of the anti-casino group Concerned Citizens of Pope County. The complaint was filed Aug. 12 and just a day later the Quorum Court gave final approval for a casino to be run by Cherokee Nation Businesses.
It took FIVE MONTHS to get a prosecutor’s opinion on the complaint. The local prosecutor passed off the hot potato and a special prosecutor was appointed. In January 2020, the special prosecutor said the city violated the FOIA but decided not to pursue the violation. With such a long delay there had already been a civil lawsuit filed over the meetings and the circuit judge determined there wasn’t sufficient evidence of a violation. Despite knowing how the circuit judge ruled in the civil suit, the special prosecutor still found there to be a FOIA violation. But, the special prosecutor noted the case would go back to the judge and decided not to pursue it.
After the special prosecutor’s report, County Judge Ben Cross stated he saw no violation and encouraged the legislature to clarify the law to clearly show such meeting are excluded from the requirement.
The Pope County controversy shows the weak state of the FOIA’s open meeting requirement. While most meetings are held in the open, when there is controversy politicians look for loopholes and rely on a lack of enforcement.
Even if a loophole can be found, can you say it is good public policy?
Fort Smith Doing Business By Email
Three Fort Smith directors decided to keep the public in the dark during initial discussions by doing it through email. The first issue concerned changes to the city’s civil service rules. The second series of emails concerned whether to settle a FOIA lawsuit over the first issue.
The case went all the way to the Arkansas Supreme Court which ruled no FOIA violation occurred. The court ruled the email chains did not constitute a meeting and were merely “background information.”
This decision appears to open the road for politicians to use email to discuss public business out of the public eye until they are ready to meet for a vote. Supreme Court Justice Hart criticized the decision saying:
“perhaps unwittingly,” the majority opinion had created a new three-pronged test to determine when communications between board members constitute a public meeting. That test, she wrote, would require the solicitation of a response from board members, a decision being made and the involvement of three-sevenths of board members. “Worse still, these determinations will almost certainly require a lawsuit to resolve,”[iv]
A Glimmer of Hope
The news about the open meetings law isn’t all bad. In 2019 the Arkansas legislature passed Act 1028 (HB1928) to require open public meetings to be video recorded. While the new law does not address loopholes to open public meetings law, once a public meeting is held a better record, a video record, is now required.
Although the new law does not address whether a meeting must be open, we find its passage hopeful in that it shows the legislature still has interest in the FOIA and because the new law was a bipartisan effort. The sponsor of the legislation was Representative Vivian Flowers (D – Pine Bluff) and the legislation included several Democrat and Republican cosponsors. In addition, the legislation was passed by a Republican held majority in the legislature and signed by a Republican governor.
It was also a bipartisan effort that gave us the FOIA in 1967. The FOIA was sponsored and passed by an overwhelmingly Democrat legislature and signed by Republican Governor Winthrop Rockefeller. “When Gov. Rockefeller left office in 1971 he pointed to the passage of the Arkansas Freedom of Information Act as one of the crowning achievements of his administration.”[v]
Will your state Senator, your state Representative, and your Governor stand up against the erosion of the open public meetings law?
Doing so is no easy task. These politicians rely on the good will of local officials to get elected and to get things done. Also, politicians who want to crack down on secret meetings will likely face opposition from the powerful Association of Arkansas Counties and Arkansas Municipal League.
It would be a bold act for legislators to tell their local officials they will not be able to skirt the open meetings law anymore. But as hard as that might be, it is nothing compared to how the legislature and Governor Rockefeller stood up against back room deals and political machines when they passed the FOIA in 1967.
Fifty-three years after passage of the highly acclaimed FOIA, the future of the open public meetings law is at a crossroads.
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[iv] City leaders’ emailing no breach, Arkansas Supreme Court says, Democrat-Gazette, June 21, 2019