Attorney: CAPC executive session violated state law

Tuesday, May 5, 2020

By Scott Loftis

The Eureka Springs City Advertising and Promotion Commission violated the Arkansas Freedom of Information Act at its April 22 meeting, an attorney for the state press association says.

At the April 22 meeting, the commission spent approximately 56 minutes meeting in private in the lower level of the city auditorium after chairwoman Carol Wright called for a “special meeting” to discuss salaries and contracts with employees and contractors.

After returning to the auditorium lobby, the commission voted not to renew the contract of former executive director Lacey Ekberg. The 90-day agreement will expire on May 14.

After the vote on Ekberg’s contract, Wright said: “We will go into the rest of the meeting now. Oh, we need to adjourn the executive session.”

The commission then voted to adjourn the executive session.

The Arkansas Freedom of Information Act outlines specific guidelines for public bodies meeting in executive session.

“(E)xecutive sessions will be permitted only for the purpose of considering employment, appointment, promotion, demotion, disciplining, or resignation of any public officer or employee,” the act says, with the only exception being for matters related to the security of a public water system or utility system. “The specific purpose of the executive session shall be announced in public before going into executive session.”

John Tull, a partner in the Little Rock law firm of Quattlebaum, Grooms and Tull, said the commission’s stated purpose for the executive session was contrary to the requirements outlined in the FOIA.

“Executive session is limited to going in and talking about an individual personnel matter,” Tull said. “If they’re talking generally about salaries and budgets, then that should be outside the executive session. It should be in open session.”

The commission should not discuss contracts in executive session, Tull said.

“Contracts should also be in open session,” he said. “The exception for executive session is for personnel matters, where you’re discussing what an employee has done. It does not apply to contract employees.”

Wright, the commission’s chairwoman, referred to a “special meeting” before the commission went into private at the April 22 meeting. Wright has repeatedly used the term “special meeting” to describe executive sessions, although the terms are not interchangeable. Special meetings are typically called when a governmental body needs to meet at a date or time outside of its regular meeting schedule. Special meetings are open to the public, although the governmental body may hold an executive session during a special meeting.

“Executive session is where they go and meet to discuss something outside of the normal business,” Tull said. “It doesn’t have anything to do with a special meeting.”

Tull also questioned the CAPC’s standard practice of voting in public on an issue that had been discussed in executive session before actually voting to adjourn the executive session. The commission acted in that order at the April 22 meeting, just as it did at a Feb. 10 special meeting when it voted to shift Ekberg from a full-time city employee to an independent contractor role. The commission also acted in that same order at a Feb. 24 meeting when it voted to appoint Gina Rambo as interim director.

“You’re supposed to come back from executive session into the normal session and vote in public,” Tull said. “You can’t have a vote in executive session. I don’t think they’re following the proper protocol and someone could question that vote if it were done in a quote, executive session, close quote. They should adjourn the executive session, come back out, announce that they’re returning to normal session and then make the vote.”

Tull received the Arkansas Press Association’s Freedom of Information Award in 2018 and has provided members of the press association with legal assistance since the early 1990s.

Carroll County Newspapers, which publishes the Carroll County News and the Lovely County Citizen, filed a complaint with Carroll County prosecuting attorney Tony Rogers on Jan. 28, alleging that the CAPC violated the FOIA at a Jan. 22 meeting by going into executive session “to discuss personnel.” The newspaper group contacted Rogers on April 24 to amend the complaint to include the April 22 meeting. Rogers said the initial complaint had been referred to Little Rock-based special prosecutor Jack McQuary, who did not a return a call for comment.

The CAPC scheduled a special meeting Monday night, May 4. The only item listed on the agenda was “Executive Session - staff/contract salaries/payments.”

Carroll County Newspapers emailed the seven commission members, Rogers and Eureka Springs mayoral assistant Kim Stryker on Monday morning to object to the executive session on the grounds that its stated purpose did not meet the requirements of the FOIA.

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