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Tom McDonald, FOI Arkansas Project

BENTON — Ramifications of a graduation-day decision made in private by the Benton School Board have reverberated through this

Photo courtesy of the Benton Courier A private meeting by the Benton School Board on graduation day led to a complaint alleging the board violated the Arkansas FOIA.

community for the past four months.

Despite a public apology from the board days after it met privately and made an exception to the school district’s graduation policy, a school patron in May swore out a complaint alleging the board violated the Arkansas Freeom of Information Act.

Barbara Webb, Saline County prosecuting attorney, will decide whether to pursue criminal charges against the board.

The school board president at the time, Bill McKee, still believes the board made a sound decision by allowing an ineligible student to participate in graduation ceremonies.

“There are patrons that think we did the right thing. I feel we did right under the circumstances, personally,” said McKee, who did not seek re-election in September. “I regret that it’s still a hot issue,” he said.

McKee had been asked to allow an unqualified senior to walk in graduation ceremonies.

The student was a credit and a half shy of the 26 needed to graduate. The school’s policy was to allow students within one credit to participate alongside graduates.

McKee said “special circumstances” made the request worthy of consideration, though he won’t elaborate.

He pitched the request by phone to the other five board members, one by one, seeking a “yes” or “no” on allowing the boy to participate.

Only the board’s newest member, Dr. Joe Martindale, balked.

“I couldn’t go along with it; I knew it would be a mistake,” he said later.

Some faculty members voiced considerable displeasure over the board’s decision that evening; one teacher held up a sheet of paper with the names of 18 other students in circumstances similar to the boy being allowed to walk. The unrest prompted McKee to agree to a called meeting just before the graduation ceremony.

Both the serial calls to board members earlier in the day and the hastily called meeting before graduation are apparent violations of the state’s open meetings law.

The Freedom of Information Act requires at least two hours notice of an emergency meeting to local news media outlets. The local newspaper, The Benton Courier, was not informed of either session. Meeting by telephone is allowed only if it is a conference call arrangement and notification requirements are met.

The board stuck to its phone vote in the second meeting; the fallout soon spread.

Four days after graduation, on May 25, The Courier ran the headline, “Board meets secretly” across the top of its front page. In the article, a board statement (individual board members either were unavailable or unwilling to be interviewed, the newspaper reported) acknowledged that “protocol was not followed” and offered an “apology ... to all parties involved.”

The Courier followed the next day with an editorial condemning both the board’s action and the “secrecy” in which it was taken.

“The board wasn’t dodging the newspaper with all these behind-the-scene machinations, they were dodging you, the taxpayers and parents of this city,” the newspaper editorialized.

About a month later, Pat Roberts, a Benton parent, filed the complaint with the prosecutor. Negligent violation of the FOIA is a misdemeanor offense, punishable by a fine of up to $200 or 30 days in jail, or both, or a sentence of appropriate public service or education, or both.

“I think each and every member of the board should be held accountable for what they did by deciding to circumvent school policy during two illegally held board meetings,” Roberts told The Courier.

Two petitions circulated in the ensuing weeks — one calling for a special board meeting on the FOIA, another to discuss the district’s graduation policy. Petitioners were given time on the agenda of a special meeting announced on Aug. 18, scheduled for the next day.

At the meeting, three men sat among the 30 or so in attendance, awaiting their chance to speak. McKee outlined the rules: There would be only two patrons allowed to speak, one for each petition. When McKee asked for spokesmen, Johnny McMahan volunteered, saying he circulated the FOI petition.

“You’re not a patron of the district,” McKee said to McMahan, who recently had moved his family into the Bryant School District.

McMahan protested. “I believe you’re neglecting and denying my right to freedom of speech,” he said. McKee wouldn’t budge.

Roberts, who had filed the formal complaint against the board, was then allowed to be the spokesman on the FOIA. He asked board members how they voted in the telephone poll, but McKee interrupted.

“We’re not here to respond,” said McKee. “We’re here to hear what you have to say.”

That set the stage for the rest of the meeting. Roberts, and then Jack Barlow, a parent who had petitioned for a discussion on the district’s graduation policy, asked questions to which the board refused to respond. All questions went unanswered.

“Tonight is starting to prove y’all don’t care,” said a frustrated Barlow, whose son was among the group of seniors just short of meeting graduation requirements.

The board listened, but didn’t respond.

The school district’s attorney, Greg Taylor, defended the board’s silence, saying emotional issues were best taken under advisement and that it was unfair to ask school board members to interpret the FOI law.

“These individuals aren’t lawyers,” Taylor said.

“That’s a sidestep,” Barlow countered.

“It’s not a sidestep,” the lawyer said. Board members need time to “reflect in a rational way” where it is “not so emotionally charged,” he added.

McKee said later that the board chose not to respond at the meeting on the advice of its legal counsel.

Diana Julian, who took over as the district’s superintendent this summer, maintains, if patrons want to have a dialogue with district officials, there are many arenas other than school board meetings to accomplish that.

“There are all kinds of ways to address issues,” she said. “If I thought the board was anti-collaborative (and) bent on breaking the law here, I would not be here,” she said.

Both Julian and Dan Jordan, assistant superintendent, say they are satisfied the board has recognized its mistakes, apologized and moved on to more important matters.

Jordan, who was the high school principal during the last school year, had recommended against the graduation-night exception that was approved by the board.

“After this,” said Julian, “I don’t think you could find a school board in this state that’s more by-the-book.”

As for criminal charges, the prosecutor said in late September she was leaning toward a resolution that would include some training on FOI issues.