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Tom McDonald, FOIArkansas Project

CONWAY — On an August evening in 1998, Ed Babin opened the door to the Mayflower mayor’s office and discovered an illegal meeting in progress.

Mayor Linn Washam, two aldermen and a couple of developers were discussing a sewer system and land deal. Babin, an alderman at the time and a mayoral candidate, said Washam invited him in. But, being familiar with the Arkansas Freedom of Information Act, Babin refused to participate in what he recognized to be an illegal gathering. Instead, he left to pursue criminal prosecution of his political enemy, the mayor.

Washam said he didn’t think the meeting was illegal. After an investigation, 20th Judicial District Prosecutor H. G. Foster concluded the meeting was a violation of the state’s open meetings law — a misdemeanor offense. He didn’t press charges; instead, he set up a workshop on the FOIA for Washam and other local public officials to attend.

“I get a lot of calls regarding the Freedom of Information Act,” Foster said at the October 1998 workshop. “Hopefully, this will keep us from having problems on down the road.”

The Mayflower episode is now water under the bridge; Washam lost his bid for re-election as mayor and Babin lost in a runoff to Frank Pearce. But the incident illustrates a common occurrence: elected officials violating the open meetings law, sometimes out of ignorance of what it will and will not allow.

According to the FOIA, by definition, all “formal or informal, special or regular” meetings of “any bureau, commission, or agency of the state, or any political subdivision of the state, including municipalities and counties, boards of education, and all others boards, bureaus, commissions, or organizations in the State of Arkansas, except grand juries, supported wholly or in part by public funds or expending public funds” are open to the public. And as public meetings, the law specifies certain notification requirements must be met, including:

• “The time and place of each regular meeting shall be furnished to anyone who requests the information.”
• All media outlets that have requested notification must be notified of emergency or special meetings at least two hours before the meeting takes place “in order that the public shall have representatives at the meeting.”

Perrin Jones, special assistant to the state attorney general and an early supporter of the FOIA, said the most frequently violated provisions of the law relate to executive sessions. Such closed sessions are intended to deal only with limited personnel matters, but that often is abused, he said.

Jones, who has been working for the attorney general’s office for more than eight years, spent 35 years in the newspaper business. One specific executive session in the 1960s inspired him to work with others toward the creation of a public-access law.

It was at a White County Election Commission meeting that “had to do with recounting a (ballot) box. ... I had asked for permission to sit in on the meeting,” he said. The state’s FOIA didn’t exist at that time and, consequently, the commission chairman would not allow him in. At that meeting, Jones said, “they changed the outcome of the election” behind closed doors, “and after that, I started pushing” for a public-access law.

Now, more than three decades later, the FOIA exists to prevent just such occurrences. It restricts executive sessions to personnel matters only, and specifically states:

• Such closed-to-the-public sessions are “only for the purpose of considering employment, appointment, promotion, demotion, disciplining, or resignation of any public officer or employee.”
• Attendance in such sessions is restricted to members of the governing body and, when requested by the governing body, the top administrator, an immediate supervisor of an involved employee and the involved employee himself. Additionally, a person being interviewed for the governing body’s top administrative position also may attend an executive session, if requested by the governing body.

Under the FOI Act, executive sessions “must never be called for the purpose of defeating the reason or the spirit” of the law.

Nor can any action be legally taken in executive session. The law requires the public body to reconvene in public session to present and vote on business it discussed privately.