BETWEEN THE LINES

Ruling Backs Open Government

The Arkansas Supreme Court refused last week to find the state’s open meetings and open records law unconstitutional.

That was a welcome conclusion but only part of the court’s ruling in a case brought by a Fort Smith man, Joey McCutchen, against his city and several off cials.

While the Supreme Court eft ectively scoft ed at the notion the Arkansas Freedom of Information is unconstitutionally vague and overbroad, the court opened an avenue for private meetings between city directors and administrators.

The Arkansas FOI Act opens most meetings of public bodies and most records held by government to the public. The law covers both formal and informal meetings and includes potential criminal and civil sanctions for violations.

The recent lawsuit was about actions by Fort Smith’s then-city administrator, Dennis Kelly, who hand-carried a memorandum on a pending city board matter to fi ve ofthe seven members of the board without giving notice to the public.

McCutchen sued, contending the series of informal meetings violated the open-meetings provisions of the state law.

If there is a tinge of familiarity to this situation, there should be. Fort Smith has pressed the boundaries of the open-meetings law before.

An earlier case before the Supreme Court was about a difterent Fort Smith city administrator’s soliciting votes from individual board members on a real estate matter. David Harris, a resident, sued and won a signifi cant ruling.

In that case, the Supreme Court said the city off cial clearly violated the Arkansas Freedom of Information Act by using “serial” meetingsvia telephone to poll board members on how they would vote. The FOI Act requires a city board and other such governing bodies to make their decisions in public. The phone calls to gather their prospective votes was an obvious circumvention.

In the more recent circumstance, the city administrator met with a majority of board members but reportedly did not solicit a preliminary vote. He instead presented a written memorandum to them expressing his support for a proposed policy change.

The change involved giving the city administrator the authority to hire or fi re department heads without board approval.

The upshot of the Supreme Court decision in this case was to uphold the constitutionality of the FOI Act, including its criminal provisions, and to resist any eftort by the court to defi ne what constitutes a public meeting.

The conclusion the Fort Smith Board of Directors did not violate the law was a finding based on the facts of that particular case.

While that part of the decision will likelyembolden some public offcials to engage in more private meetings, it shouldn’t be seen as carte blanche to take what ought to be public discussions behind closed doors.

The court left any further definition of what constitutes a meeting to the state Legislature. Public policy is for the General Assembly, not the courts, wrote Chief Justice Jim Hannah in the opinion.

The Supreme Court decision in this case won’t end the argument over which governmental meetings must be open. The matter may indeed come up in the next legislative session, but there will be opposition to altering the law that has served the state since 1967.

This whole idea of transparency in government is the foundation of public trust in government.

Public discussions can be awkward, inconvenient or otherwise diff cult, but decision-making on behalf of the public still needs to be done in the open.

BRENDA BLAGG IS A FREELANCE COLUMNIST AND LONGTIME JOURNALIST IN NORTHWEST ARKANSAS.

Opinion, Pages 5 on 12/12/2012

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