OPINION: Arkansas lawmakers conceal a weapon against transparency in rushed, last-minute legislation

By SONNY ALBARADO | Arkansas Advocate

When is an ethics law unethical? When the law hides a significant, detrimental change to the public’s right to know.

I’m talking about Act 883, which was filed in the last week of the legislative session and passed in less than a week. The central purpose of the law is to make sure local school board members know about their ethical obligations and to establish a process for the Arkansas Ethics Commission to review complaints about school board members who may violate standards or the law.

The stealth bomb inside the law will give local school boards more excuses to go into executive session. It will also allow more people to have closed-door meetings with school board members.

Act 883 effectively amends the state Freedom of Information Act, but lawmakers did it without telling the public. No one interested in government transparency got a chance to weigh in on that provision — not even the FOIA Task Force, which the Legislature created in 2017 to review, evaluate and approve proposed amendments to the FOIA. But lawmakers aren’t obligated to seek the panel’s review or approval because it’s an advisory body, according to Rob Moritz, the group’s current chair.

Moritz described the passage of the bill without task force review as a “kick in the teeth” in Arkansas Business, where his wife is a contributing editor. (Full disclosure: Moritz and I are members of two private press freedom groups — the Society of Professional Journalists and the Arkansas FOIA Coalition.)

The limited discussion of the legislation that took place in the Senate and House education committees focused on the Arkansas School Board Association’s belief that complaints it receives about board members and school employees’ behavior should be handled by a state agency with the authority to do something.

“We get calls, sometimes weekly, from citizens and officials, but we are not an enforcement agency,” Dan Jordan, the association’s governmental relations director, told members of the Senate Education Committee on April 3.

Current law leaves it up to local prosecutors to deal with ethical violations that veer into law breaking, Jordan said, adding that he knew of no cases brought against school board members by a prosecutor.

No lawmaker in either education committee raised any questions about the section of the legislation that changed the FOIA. And no one from the association mentioned it.

Moritz told Arkansas Business the fact that many House and Senate members who are strong supporters of the FOIA voted for the changes “indicates they were unaware of the amendments.”

It also shows how the mad scramble in the last week of the session, when normal rules were suspended, enables bad — or at least poorly conceived — laws. The measure was introduced March 29 and was one of dozens of bills the education committees heard in the days before lawmakers rushed to wrap things up a week later.    

Under FOIA, public bodies, including school boards, can only meet in secret to discuss the “employment, appointment, promotion, demotion, disciplining or resignation of any public officer or employee.” Only an agency’s top administrator, such as a school’s superintendent, an employee’s immediate supervisor, the employee involved or a person being interviewed for a top job can be included in such a meeting.

So how does the new law affect the public’s right to know? It amends Arkansas Code 6-13-619, which dictates how and how often school boards are supposed to conduct their meetings. The new law specifies that in addition to those FOIA exceptions, school board members will be able to meet behind closed doors with the superintendent and lawyers to weigh litigation, settlement offers, contract disputes and for “discussions pertaining to real property.”

To say that the changes tear a hole in the FOIA big enough to drive a dump truck through is an understatement. That the law doesn’t take effect until May 2024 is no consolation.

Madison County Record Publisher Ellen Kreth, whose newspaper won two national awards for reporting on a school board coverup of sexual assault, told Arkansas Business that the state legalizing more secret meetings will be “devastating” to transparency for parents.

Given the unrelenting attack from some lawmakers on the public’s right to know that took place in this last legislative session or the likely continued assault, it shouldn’t surprise anyone that a covert attack succeeded.

That only means guardians of government transparency across the political spectrum need to be ever more vigilant. 

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