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Arkansas Corrections Board plays fast and loose with open meetings law

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Arkansas Corrections Board plays fast and loose with open meetings law

Mar 25, 2024 | 7:30 am ET
By Sonny Albarado
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Arkansas Corrections Board plays fast and loose with open meetings law
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Arkansas Department of Corrections headquarters in North Little Rock. (DOC photo)

Imagine a handful of journalists gathered in a small conference room at Department of Corrections headquarters in North Little Rock, their attention focused on an old business telephone on a small table as they strain to hear the disembodied and often unidentified voices of Board of Corrections members and staff emanating from the device.

That’s been the scene in recent months when the prison oversight board has held special or emergency meetings. Those sessions are conducted via telephone conference calls that aren’t generally available to the public. The only people who can dial into the call are board members and other officials.

In an age of video conferencing and live streaming, such meetings speak to a lack of concern about the public’s right to observe and participate in government activities.

And they occurred as the board faced a lawsuit from Attorney General Tim Griffin alleging the board violated the Arkansas Freedom of Information Act.

Earlier this month, the Arkansas Supreme Court declined to move quickly on Griffin’s appeal of a circuit court’s dismissal of that lawsuit.

That’s a shame because the decision postpones a resolution of serious claims that the corrections board violated the open meetings law when it met behind closed doors on Dec. 8, then came out and voted to hire an outside attorney.

The open meetings law allows executive sessions specifically for considering “employment, appointment, promotion, demotion, disciplining or resignation of any public officer or employee.” The law requires public bodies to announce the specific purpose of the closed meeting and prohibits any decision-making in the session.

In a Dec. 11 letter to prison board Chair Benny Magness, Griffin said the board met in executive session for purposes not allowed by the AFOIA. At the Dec. 8 meeting, Magness announced the purpose of the executive session as “an employment matter.” When board members emerged from the session, they adopted two motions: to hire outside counsel and to engage a private lawyer to represent the board in “employment matters.”

Arkansas Corrections Board plays fast and loose with open meetings law
Attorney General Tim Griffin (left) and Board of Corrections Chairman Benny Magness (right). (Arkansas Advocate)

Griffin sued on Dec. 15. In addition to the open meetings violations, Griffin also alleged the board violated the public records sections of the FOIA by failing to provide documents his office sought.

The board held one of its teleconference meetings on Dec. 22 in an attempt to retroactively “cure” its sunshine law violations.

In early January, Griffin filed an amended complaint noting that “no provision of law allows the Board to retroactively cure its FOIA violations.” The new complaint also alleges that Magness and board member Lee Watson violated the open meetings law when they met privately ahead of the Dec. 8 meeting to discuss hiring of a private lawyer to represent the board in a lawsuit challenging the constitutionality of laws passed in the 2023 legislative session.

A Pulaski County circuit judge dismissed the suit later in January after Griffin’s office and the corrections board failed to negotiate a resolution to the disagreement.

What’s been lost in the arguments over the outside attorney issue and, in the separate lawsuit over the board’s constitutional authority, is whether the board violated the FOIA.

The courts haven’t opined on the FOIA issue, but in a letter last month, Griffin again accused the board of violating the sunshine law in January after it went behind closed doors twice — once to consider payment of an invoice from the outside counsel it hired and again to consider appointing an interim secretary of corrections.

The board failed to announce the specific purpose of the first executive session, Griffin said, and it violated the law by allowing someone other than board members into the session. In addition, Griffin wrote, discussion of how to pay the outside lawyer’s invoice is not a reason to hold a closed meeting under state law.

As for the second executive session, Griffin pointed out that the board can only appoint a corrections secretary who has been nominated by the governor, thereby making the closed-door discussion of an interim secretary a FOIA violation.

The sad truth is that Griffin’s right: the Board of Corrections plays fast and loose with the FOIA.

Beyond the likely FOIA violations, in spirit if not in law, the board’s regular meetings are not welcoming to the public. 

The gatherings are held in a room the size of a small basketball gym. The seven board members sit at the head of a large rectangle made up of long tables. The corrections secretary, the heads of correctional divisions and other officials sit along the long sides of the rectangle. The public and reporters are relegated to rows of chairs at the back and sides of the hall, easily 10-15 yards from the board. The acoustics of the room often make it hard to hear what’s being said, even with amplification.

This is no way to make people feel welcome. 

And the way the board frequently seems to arrive at decisions unilaterally, by accepting the chairman’s declarations as official actions, adds to the air of cliquishness and behind-the-scenes deals. 

The Arkansas Board of Corrections may prevail in its constitutional dispute with the Sanders administration and Griffin, but even so, it needs to clean up its act.