The Arkansas Board of Examiners in Counseling voted Friday to confirm its vote by secret ballot in April to hire former board member Alan Pogue of Sherwood.
The board regulates about 2,000 counselors in mental health, marriage and family therapy in the state. Board members voted unanimously Friday by raising their hands to confirm that the April vote was valid.
On July 6, the Arkansas Democrat-Gazette questioned if the secret ballot violatedthe Arkansas Freedom of Information Act because the ballots were not signed by the board members.
The board’s minutes show the board voted 5-3 in a secret ballot during its April 12 meeting to hire Pogue, who has been interim executive director since January after he resigned from the board.
The board’s records show five slips of paper with Pogue’s name on them and three slips of paper with the name of former board member Garry Teeter of Bryant on them, but the names of the board members aren’ton the slips of paper. In 2011, Gov. Mike Beebe appointed Pogue to replace Teeter on the board.
How each member voted in April is still not clear. On Friday, all eight members raised their hand in “a confirmation of April’s vote recognizing this is not a revote for this position.”
A 1989 state Supreme Court ruling in Depoyster v. Cole states that, under the Freedom of Information Act, the use of unsigned written ballot slips and the failure to retain the voting slipsviolates the overall intent of the law.
“It wasn’t that there was a question of who did we hire, it’s how did we handle the ballots,” board Chairman Mark Coffman of Russellville said Friday. “This is a confirmation that we are accepting that as the legitimate hiring of Dr. Pogue.”
Assistant Attorney General Amanda Gibson told the board that they had three options to fix the problem: They could ratify, or adopt, the April vote; they could consider that a vote in May to set Pogue’s salary sufficiently fixed the problem; or they could redo the entire process and interview candidates for the job.
The board chose to ratifythe April vote.
“This is the way to cure any irregularities,” Gibson said, referring to the possible Freedom of Information Act violation.
Coffman said he thinks Friday’s vote fixes the Freedom of Information Act issue.
“To a certain extent we have to put some faith in to the attorney who represents the board and according to her we can go back, make corrections,” he said.
Coffman said Teeter has threatened to get an attorney general’s opinion if the board voted to reaffirm Pogue’s hiring. Teeter did not return phone calls Friday.
Coffman said the board does not plan to ask the attorney general for an opinion and considers the matter settled.
“We’re hoping that everything is ironed out. I believe it was,” Coffman said. “I will be very surprised if we handled this incorrectly.”
State Sen. Bruce Maloch, D-Magnolia, said by phone after the meeting that he may request an attorney general’s opinion on whether the board handled the issue properly. The board has gained two new members since the April vote was taken and he questioned how their votes should be counted.
“You’re asking new board members to ratify the actions of a previous board,” he said.
He said the board should have posted the job again and interviewed candidates.
“Whether it’s legally required or not I just thought they were better off to go overboard to show that they are doing it right,” Maloch said. “My thoughts on curingthat was just redo it.”
Maloch said Attorney General Dustin McDaniel would likely agree with Gibson’s interpretation.
McDaniel has opined on the issue before.
In a 2000 opinion, he wrote that a governing body can ratify an action after the fact if the action would have been legal if done correctly. The 1985 state Supreme Court case Rehab Hospital Services Corp. v. Delta-Hills Health Systems Agency, Inc., states that a board must be given a chance to address a violation they are accused of committing. It also states that some actions taken in violation of the state Freedom of Information Act may be void, but because it isn’t clear in the law which actions are voidable, the courts will have to make a case by case determination.
Northwest Arkansas, Pages 9 on 07/13/2013