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Guest Editorial: Keep Public Business Open To The Public

Originally published in the Johnson County Graphic, May 17, 2023. Reprinted with permission.

After Governor Winthrop Rockefeller signed the Arkansas Freedom of Information Act (FOIA) into law in 1967, he commented that the law had “taken the government out of the smoke-filled rooms and returned it to the people.”

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Often referred to as “the people’s law,” Arkansas’s version of the Freedom of Information Act is considered to be one of the nation’s strongest. Its intent is to ensure transparency in government, to provide that public business is conducted in the open. Our elected officials and public bodies in Johnson County work hard to serve the citizens they represent and The Graphic has cooperative, working relationships with all of them and appreciate the willingness they have to share information with us and the public and we look forward to continuing those relationships in the same way. It is, however, our duty as the press to ask hard questions. It is the duty of the press to look at the facts and to tell the truth. We take this very seriously which is why we feel it our responsibility to ask this question…

Is all our public business here in Clarksville and Johnson County being conducted in the open? Sadly, this apparently is not the case.

Clarksville’s 76-year-old utility company was recently stripped of its governing body by a vote of the city council, at the recommendation of the mayor, during a specially called meeting. In a recent poll on www. thegraphic.org, 91 percent of respondents said that they did not think the action taken by the Council on April 3 to abolish the CCU Commission was done with adequate deliberation, transparency and notice to the public.

A number of questions have arisen as a result of the way this meeting was conducted. After consultation with the Arkansas Press Association’s legal counsel over the last three weeks, it appears as though there were three potential Freedom of Information Act violations committed leading up to and during the course of this meeting as well as Clarksville City Code violations pertaining to meetings. Our desire is to point out what we and the APA legal counsel believe might have been violations and to ask our readers and officials to look closely at the process that has been put in place to ensure that the public interest is protected and that our tax money, which funds the government, is spent responsibly and in the interest of those represented.

Below is a list from a transcription of the meeting of the actions taken by the Council and the related FOIA regulations or Clarksville city ordinances pertaining to each.

Action 1:

The special Council meeting was called with a single agenda item: discussion of the 2022 CCU audit. After the meeting convened, a certified public accountant, who has been retained by the city to conduct the CCU audit, was introduced. The Council then entered into an executive session, to discuss “this personnel issue” (referring to the 2022 CCU audit). The executive session was attended by all six aldermen, the mayor, CCU’s interim general manager, the accountant and an attorney who participated by phone.

What the law says:

According to the Arkansas FOIA §25-19106(c)(1)(A), “An executive session will be permitted only for the purpose of considering employment, appointment, promotion, demotion, disciplining, or resignation of any public officer or employee.” FOIA guidelines also state that only the top administrator in an agency, the employee’s immediate supervisor, the employee in question, and any person being interviewed for the top administrative position in the agency involved can attend an executive session. Neither the agency’s attorney nor the employee’s attorney may attend an executive session.

Arkansas FOIA §25-19-106(c)(3) states that executive sessions must never be called for the purpose of defeating the reason or the spirit of this chapter. An executive session is not permitted in order to consider general personnel matters or the overall performance of employees as a group. Under law, anyone who “negligently violates” the FOIA can be found guilty of a Class C misdemeanor.

Opinion:

The mayor included the accountant in the executive session because he said he felt the Council would be “very interested” in what she had to say regarding the CCU audit-in-progress and stated that the lawyer retained by the mayor for the purposes of the audit would attend via phone. FOIA does not permit an attorney to attend an executive session, whether it is a city attorney or otherwise. Nor is there provision for a CPA to attend an executive session.

At the special meeting April 3, one alder- man stated he had been made aware of “disturbing” information regarding CCU’s financial management, including excessive spending for the broadband network without Council approval. He also said the accountant had indicated the utility was showing a loss of $1-$2 million for 2022, which is not consistent with the financial reports available on the Clarksville Connected Utilities website. Why has the information that led to this statement being made not been released to the public? The impending audit, according to the mayor and some aldermen, produced information vital enough that it required swift action to disband the utility commission. What the CPA had to share, according to the APA legal counsel, is arguably information of public record to which the public is entitled, yet it has not been released. Some aldermen and the mayor have referred to its findings, but never in full. An FOIA request for all materials relating to and in preparation of the 2022 audit relating to CCU was made by The Graphic to Landmark CPA on May 5. As of press time, no response to that request has been received. FOIA allows 3 business days for turning over requested records or to state the reason for refusal.

If the audit is not complete, should it be the basis upon which the decision was made to repeal a 76-year-old ordinance and six other ordinances regarding the establishment and governance of CCU?

Whether changes at CCU need to be made or not is not the question here. The question is whether the changes were made through the proper channels and according to FOIA laws, and it appears as though proper procedure may have been ignored for the sake of urgency and/or convenience although the law makes no exception for these factors.

Action 2:

The utility commission was abolished when, following the executive session, the mayor stated that “we will come back to order.” He then opened the floor for comments and, after some discussion, the

Continued on Page 9

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