After the Arkansas Democrat-Gazette raised questions about voting by email, Arkansas Public Defender Commission Chairman Jerry Larkowski said Wednesday that he will ask the panel to ratify the vote it made this week to accept the resignation of its longtime executive director.
Didi Sallings, 51, stepped down effective Tuesday and will take a newly created position as an appellate attorney with the commission. The seven-member commission voted unanimously by email to accept her resignation.
The first email from Larkowski to the other commissioners in which he asks for a vote was sent eight minutes after the Arkansas Democrat-Gazette began asking questions Tuesday.
“The press have been calling,” it states. “They must smell something is on the horizon.”
Larkowski said by phone he doesn’t think the commission violated the Arkansas Freedom of Information Act by voting in a medium the public can’t access.
“I think we’ve complied with the spirit of the FOI law,” he said. “I have read up on it, I’ve talked to a couple of attorneys that do FOI work and I think I tried to comply with the FOI law.”
But, experts on the state Freedom of Information Act have called such votes, done outside the public’s eye, a violation of the state’s open-meetings law.
For such a vote to be legal, the public must be able to log in online to watch the discussion and subsequent vote, they said.
“ Email is not a meeting,” said Richard Peltz, who taught at the William H. Bowen School of Law at the University of Arkansas at Little Rock, in 2007. “In my opinion that would not be an official action.”
On Wednesday, Arkansas Press Association spokesman Tres Williams also disagreed with Larkowski.
“They can’t do that. The way they conducted that vote does not comport with the Arkansas Freedom of Information Act,” Williams said. “They don’t get to do that.”
Arkansas Code Annotated 25-19-106 states that a motion considered or approved in an executive session is not legal unless the vote is made in public.
Larkowski said commissioners voted after a July 18 executive session to explore what details needed to be decided before they could accept Sallings’ resignation, such as asking attorney Gregg Parrish to act as interim director and negotiating his salary.
“We were 95 percent sure we knew where this was going to go, but I tried to be careful,” Larkowski said. “You have to be real careful with employment issues as it relates to [the Freedom of Information Act.]”
He said that since the commission knew how it was going to vote, holding the vote by email allowed him to save time and money.
“By doing it by email I was able to knock out this issue in 30 minutes” and avoid the cost of a conference call, he said. “We get criticized a lot for government moving too slow. That would have taken at least a day to set up.”
Larkowski said he will ask the commission to ratify, or verify, that the vote happened.
“To dot the i’s and cross the t’s, and since we’re meeting again in the next few weeks, we will probably take a public vote to ratify the vote we took by email,” he said.
Williams said the commission at least needs to ratify the vote publicly.
“At least we would know how people voted, which is the whole point of the thing anyway,” Williams said.
The three executive sessions, or closed, meetings the commission held before voting by email were all arranged by him and not by the commission staff, Larkowski said.
“We conducted all of these without any staff around,” he said. “I took notes.”
No member of the media or the public was at his office to listen to the meetings, which were all held by phone, he said. Press notices he provided show the meetings were announced at least two hours before they took place.
Sallings said she wasn’t involved with the email vote.
Sallings voluntarily stepped down as director after 20 years and agreed to stay on in a newly created appellate attorney position, she said. Her salary in fiscal 2014 is $106,820. Larkowski said her new salary will be about $90,000.
“I started the commission, was the first and only employee and didn’t have a desk or a computer or didn’t know anything about state government,” Sallings said. “I’ve loved it. It’s like my third child. I’m ready to slow down a little bit; get back to practicing law and not being out at the Capitol as much.”
Larkowski said Sallings was asked to stay on because of her experience and the general consensus was that she would be a good fit for the position.
On Friday, the Office of Personnel Management approved the commission’s request for a Public Defender III position.
In a July 17 email about the new position, Larkowski wrote, “the quicker we get it created, the quicker we can begin to make our moves.”
The commission will meet in the coming weeks to discuss how and when to select a new executive director, Larkowski said. The plan is to have a new director by Sept. 1, he said. State Personnel Administrator Herb Scott said the executive-director position doesn’t have to be advertised.
“But we’re going to open it up anyway … so we get a better supply of people to select from,” Larkowski said.
He said the new hire needs to have at least fours years’ experience as an attorney, experience representing people who committed capital crimes and knowledge of state government.
“You can’t just be a good trial lawyer. You have to be able to work with all of the people who make this system work around the state. It’s not an easy job,” he said.
Parrish will serve as interim director at his current salary, Larkowski said. Parrish could not be reached for comment Wednesday.
The commission was created in 1993, in part because of a U.S. Supreme Court decision that says poor criminal defendants are at an unconstitutionally unfair disadvantage when facing better funded state prosecutors at trial, particularly in death-penalty cases, unless there is adequate funding for public defenders. Budget requests from the agency state that approximately 90 percent of people prosecuted by the state are represented by a public defender or appointed counsel. The commission has more than 300 employees and represented 86,913 people in fiscal 2012, according to the commission.
Northwest Arkansas, Pages 9 on 07/25/2013