Arts Center Seeks Clarity

FAYETTEVILLE — One of the Walton Arts Center’s earliest supporters said the organization was always intended to operate in public view.

A former Arkansas attorney general who now sits on the board wondered why the organization doesn’t strictly follow the state’s open records and meetings law.

The center’s hired leaders said it may not be in the organization’s best interests to operate entirely under the Arkansas Freedom of Information Act’s requirements, particularly when it comes to discussing donations made to the organization.

“There’s a lack of clarity of if the Freedom of Information Act applies to the Walton Arts Center,” said Peter Lane, the art’s center’s CEO since 2009.

The organization’s leaders, spurred by the questions, will ask Dustin McDaniel, attorney general, to help settle the issue.

Terri Trotter, chief operating officer, said a request for an attorney general’s opinion will likely be sent by a state legislator by Wednesday. Marshall Ney, the center’s attorney, was workingon the letter last week.

The center’s public funding and purpose will be key in determining whether the nonprofit organization is subject to the open records law, according to Ney and an attorney who specializes in the Arkansas Freedom of Information Act.

The center was built more than 20 years ago as a joint venture between Fayetteville and the University of Arkansas. The city and university’s board own the center property at 495 W. Dickson St. City and university officials appoint members to the center’s board. The center receives operational money from the city and other government sources.

Those factors might indicate all records and meetings are open to the public, but center administrators and Ney said that might not be the case.

The center invites the public to center council meetings. The organization’s bylaws require the board to report its finances and activities to Fayetteville’s City Council and the university’s Board of Trustees.

The city and center staff don’t notify media about board meetings of the Walton Arts Center Foundation, which administers the center’s endowment. Committee meetings of the center’s council, including a parking deck task force that has been meeting with city staff, aren’t advertised either.

And, on at least one occasion, center staff have asked media to leave the room as members prepared to discuss fundraising.

Issues involving openness and transparency came to a head last month when Steve Clark, a city-appointed member of the center’s board and president of the Fayetteville Chamber of Commerce, demanded an answer to the question: Is the center subject to the Freedom of Information Act?

Clark, who served as Arkansas’ attorney general from 1986 to 1990, questioned why media were asked to leave a May 8 meeting when fundraising was about to be discussed. Clark said fellow board member David Gay stopped the May meeting by saying he didn’t think the arts board was complying with the Freedom of Information Act.

Clark asked in July why nothing had been done to resolve the issue after more than two months.

“I think the Freedom of Information Act is one of the most important pieces of legislation the state of Arkansas has ever adopted,” Clark said Friday.

“If it applies to the Walton Arts Center, we need to comply.”

An Agent For the City, University

After months of negotiation, city and university officials agreed in December 1986 to build the center.

Articles of incorporation created the board “to construct, operate, manage and maintain the Walton Arts Center as agent for the University of Arkansas and the city of Fayetteville.”

The city committed $4.5 million to the project. The university matched taxpayers’ contribution using a gift from Sam and Helen Walton. The gift had been designated for a business and arts center on campus.

Of the $9 million, $6 million paid for land and initial construction on Dickson Street. The remaining $3 million created the center’s endowment, which has grown to roughly $12 million.

The $6 million wasn’t enough to build the center. During a period of several years, a group led by Helen Walton and Billie Jo Starr of Fayetteville raised several million dollars more through contributions from individuals and businesses across Northwest Arkansas.

Starr, whose family gave money to build the center’s black box theater, said throughout dozens of fundraising parties and coffee klatches, “We never had anybody say, ‘Don’t let anybody know how much I gave.’”

“There was never a question in my mind about it being a public entity,” she said last week.

Starr is a former president of the center’s council and foundation board. “I feel like they’ve tried very hard to program for the public. For me, it’s a public place.”

Bond of Trust

Lane and Trotter said Thursday officials try to operate as transparently as possible.

“Part of being the organization that we are is that we’re a community organization,” Trotter said.

Lane said there are certain areas — particularly donations — that have to be handled delicately.

“The code of ethics of fundraising is very particular and very strict,” Lane said. “Having worked in fundraising for 29 years, the bond of trust between donors and an organization is very important.”

Lane said most people don’t mind having their contributions disclosed.

Programs distributed at most center events list more than 1,000 individual donors, corporate sponsors and media partners and the level of money contributed. Trotter said “handfuls” of donations are listed anonymously or not at all.

Lane said he’s not comfortable disclosing donations before he and donors are ready to make it public.

“It would be premature to have discussions about a gift to the arts center appear in the newspaper before that gift is made,” Lane said.

He said less than 5 percent of the center’s $9.8 million operating budget in fiscal 2012 came from government sources.

The city committed an estimated $289,000 to the center this year through two contracts. The money came from parking fees and fines in the downtown entertainment district. It was used to pay for parking services, arts education and subsidized ticket sales at several arts center events.

The center occasionally receives grants from the National Endowment for the Arts, the Arkansas Arts Council and the Department of Arkansas Heritage, Trotter said. The Fayetteville Advertising and Promotion Commission has also pledged hotel, motel and restaurant taxes to center events, such as Artosphere, through biannual funding requests.

According to Beth Goodwin, arts center spokeswoman, the center has yet to receive any of the $500,000 the commission committed last year for renovation to the Arkansas Music Pavilion. That money has not changed hands, because the outdoor concert venue moved to the Washington County Fairgrounds from the Northwest Arkansas Mall, where renovation was to occur.

Legal Factors

State law stipulates government agencies and “all other 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” are subject to the Arkansas Freedom of Information Act.

John Tull, a partner with the Quattlebaum, Grooms, Tull & Burrow law firm who specializes in the open records law, said Friday the case could be made all records from an agency that receives even a dollar of public money are subject to public review.

He and Ney said more commonly a judge will consider what public purpose an organization serves and how intertwined its role is with local or state government.

Ney said the arts center doesn’t share the same public role as a city’s police or fire department.

Tull cited the 1990 Arkansas Supreme Court case, City of Fayetteville v. Edmark, as evidence contractual information between private and public entities is subject to the law.

Ney said that usually pertains only to information spelled out in a contract between the two parties. Just because Waste Management provides trash service in Fayetteville doesn’t mean everything its board discusses is subject to public review, he said.

“I’m not sure if you can get into a list of private donors,” Tull said. “Really all you should be allowed to see is what’s related to public funds.”

Tull occasionally represents Northwest Arkansas Newspapers in issues involving the Freedom of Information Act.

He said regardless of what state law mandates, organizations receiving any public money should be responsive to the public.

“I believe that the more openness we have, the better we are,” Tull said.

Attorney general pinions don’t constitute binding law and don’t set legal precedent. Because they are issued by the top law enforcement official in the state, they carry significant weight, however.

According to its website, the attorney general’s office tries to answer all requests for opinions within 30 days.