Guest Editorial: Keep Public Business Open To The Public

Council voted to repeal all city ordinances which had previously established that governing body. The vote was taken over the objection of some aldermen, before the text of the repealing document was read aloud.

What the law says:

Prior to any action being taken on matters discussed in executive session, a meeting must be called back to order. According to municipal code, this must take place with a motion and a second, and then a vote to reconvene. According to this definition, the Council never officially reconvened after returning from executive session. Clarksville municipal code states that an ordinance must be read aloud prior to a vote being taken. Although the city clerk asked twice if the ordinance should be read before a vote was taken, she was instructed to call roll for the aldermen’s votes and the ordinance would be read after action was taken.

FOIA §25-19-106(c)(4) states that “No resolution, ordinance, rule, contract, regulation, or motion considered or arrived at in executive session will be legal unless, following the executive session, the public body reconvenes in public session and presents and votes on the resolution, ordinance, rule, contract, regulation or motion.”

Opinion:

Was the action taken by the Council following the executive session even valid?

According to municipal code, the ordinance should have been read prior to a vote being called, and according to FOIA, if action is taken without reconvening, such actions are void. This has serious implications for actions taken in subsequent meetings and on the action by the Council in its May 8 meeting to reinstate the CCU commission. Is this new commission legitimate if the ordinance establishing the previous commission wasn’t legitimately repealed? Our elected officials are supposed to attend training to learn how to legally conduct government business, and one must wonder whether this has taken place or whether it needs repeating?

Action 3:

The mayor formed a special “audit team,” composed of himself and one alderman, a lawyer he retained because the city attorney didn’t have time to devote to this endeavor, and a CPA he hired to take over the already ongoing audit from another accounting firm among others, to be involved in the process. Other members of the Council were not even aware such a group existed until a special Council meeting on March 9 when they were informed because the mayor had to request funds to pay for fees incurred. Neither the Council, the press nor the public were informed of these meetings. To date, public funds totaling over $150,000 have been spent on this audit and legal counsel related to it.

What the law says:

According to FOIA guidelines, §25-19-106 “except as otherwise specifically provided by law, all meetings, formal or informal, special or regular, of the governing bodies of all municipalities, counties, townships and school districts and all boards, bureaus, commissions, or organizations of the State of Arkansas, except grand juries, supported wholly or in part by public funds or expending public funds, shall be public meetings. Furthermore, according to previous Arkansas attorney general opinions, a governing body must hold a public meeting even if its only purpose is to gather information.

§25-29-103(7)(A) states that public records constitute writings…data compilations in any medium required by law to be kept or otherwise kept that constitute a record of the performance or lack of performance of official functions that are or should be carried out by a public official or employee, a governmental agency or any other agency … that is supported by public funds. All records maintained in public offices or by public employees withing the scope of their employment shall be presumed to be public records. Furthermore, private organizations supported in part by public funds, engaging in activities of public concern and carrying on work that is intertwined with government bodies are subject to Arkansas FOIA.

Opinion: The city has already expended over $150,000 on fees to the auditing firm and an attorney retained to advise the mayor and Council on the matter and to gather information. If public funds have been used to pay for these services, and the information revealed to-date has been the basis for Council action, shouldn’t the public be informed as well? Why was only one council member aware of the hiring of these individuals and included in discussions related to this audit until the time came to pay the legal fees? Why weren’t these meetings public? Where are the agendas and minutes of these special “audit team” meetings, and why hasn’t the public been notified of them? It was stated that the city attorney didn’t have the time to devote to this matter, so another lawyer was retained. Could a Municipal League attorney have been used at little or no cost to the city?

In conclusion, shortly after Governor Rockefeller signed the FOIA into law, the bill was challenged in a lawsuit that eventually reached the state’s highest court. In the Supreme Court’s opinion written by then-associate justice George Rose Smith, the Court stated, “It is vital in a democratic society that public business be performed in an open and public manner.” This has been affirmed time and again through court decisions, opinions by the Attorney General and legislative action taken to protect the public interest, some of which are known as Sunshine Laws.

Whether, based on evidence, the decision reached by the Council to abolish the CCU Commission on April 3 was warranted or not, we should be concerned, as citizens, about the fact that proper protocol was not followed. A disregard for the rules governing open meetings, whether out of ignorance or willfulness, is an abuse of the power and trust that we have placed in the hands of our elected officials.

Even if the outcome of such action is favorable for the city in the end, the failure to act with proper accountability as set forth in the law is not without consequences. It erodes our confidence in the system and leads to an environment ripe for corruption. When we elect someone to a governmental position, we expect that they will take their responsibility seriously and learn all they can to perform their duties to the best of their ability. This begs the question, why isn’t more care taken, in the spirit and intent of FOIA, to keep the public informed of how our tax money is being spent? What was good for Arkansas 56 years ago is still good for our community today and the citizens of the city of Clarksville and Johnson County deserve transparency and to be informed about what is happening with their hardearned money.

Considering the circumstances in which we find ourselves as a city, what’s been done probably cannot be undone, nor are we advocating for that here, but what steps can be taken in the future to remediate the seeming lack of concern for transparency in our government? As it has been said, democracy dies in the dark.

The April 3 City Council meeting in question can be viewed on the City’s YouTube page www.youtube.com/@ClarksvilleArkansas.