Teachers and staff members at 13 public school districts will be allowed to continue carrying firearms on their campuses after a split state licensing board reversed itself Wednesday.
That decision will allow those employees to retain their commissions as private security guards for two years, giving lawmakers a chance to change state law to allow the school systems to permanently continue their security plans, board members said.
The board will not approve such authorizations for any new districts, and it will not allow districts with such security plans to seek commissions for more employees.
Security commissions for school employees have been in question since a nonbinding Aug. 1 opinion by state Attorney General Dustin McDaniel, who said school districts could not use Arkansas Code Annotated 17-40-102 to allow employees to carry weapons on campus. That law empowers the board to grant security-officer commissions to individuals employed by “the security department of a private business,” but school districts are not private businesses, the opinion said. Arkansas law prohibits the carrying of firearms on school grounds by anyone except law-enforcement officers or private security officers.
The Arkansas Board of Private Investigators and Private Security Agencies had previously voted to temporarily suspend the commissions of about 60 employees of school districts throughout the state. Not all of those employees used that authority to carry a firearm. Superintendents and state lawmakers had expected the board to permanently revoke those commissions and the districts’ designations as “private companies” Wednesday.
Cutter-Morning Star School District Superintendent Nancy Anderson raised two fists in victory after the board surprised her by allowing her district’s three commissions to remain in place.
“If there’s an active shooter in my building, I’m going in,” she said after referring to the December 2012 shooting at Sandy Hook Elementary School in Connecticut. “If I have nothing to throw at him but a stapler, so be it.”
Anderson and superintendents at rural school districts throughout the state said they can’t afford to contract with private security agencies or hire police officers to patrol their schools.
Board members were swayed by attorneys for two of the affected districts - Clarksville and Lake Hamilton - who argued that the commissions fall under a legal principle of estoppel, which bars a party from denying a fact that has been established and agreed upon over time.
For example, if a man constructs a multimillion-dollar building slightly outside his property line and his neighbor doesn’t challenge it, that neighbor cannot insist that that man tear the building down 20 years later, said Scott Hickam, attorney for the Lake Hamilton School District in Garland County, which has armed staff members under the law since 1993.
Lake Hamilton Superintendent Steve Anderson agreed. Whether or not the commissions were properly granted originally, the district has used them to arm employees for decades without incident, he said.
“Not only do people accept it - they expect it,” Anderson said.
But Assistant Attorney General Ka Tina Hodge said the principle of estoppel doesn’t apply to government organizations. And, if it did apply, estoppel would bar the board from retroactively punishing the districts for designating their employees as security guards “in good faith” under state law, but it would not prohibit the board from revoking the commissions that would allow them to do so in the future, she said.
“Because we know [the districts] are not qualified as private businesses, that means they’re no longer qualified to hold a license,” Hodge said.
But several board members said they did not want to take an action that would end security programs that districts had already paid for after relying upon advice from others that the licensing practice was common and legal.
“There’s the intent of the law and then there’s the letter of the law,” said board member Jason Curtis, who supported allowing the commissions to remain in place.
The board initially revoked the security-guard authority for the Lake Hamilton and Clarksville school districts after Curtis, who came in late, recused himself from voting on those two cases because he had not heard all of their arguments. That caused a split 2-2 vote, which Chairman Jack Acre broke by voting in favor of revocation. In considering districts later on the agenda, Curtis was able to vote, swaying the vote 3-2 in favor of allowing the commissions to remain in place.
After Hodge noted the inconsistency in the way the board had treated districts, it reversed its decisions related to Clarksville and Lake Hamilton. The board then consolidated hearings for the remaining districts and granted the two-year authorization to all of them at once.
“All’s well that ends well,” Hickam said in an interview after the nearly four hours of discussion.
Hickam and several school district leaders at the meeting said they expect state lawmakers to approve legislation that will clear the way for armed school employees within the next two years.
At a recent legislative hearing, lawmakers discussed seeking a two-thirds vote of the General Assembly to take up the legislative matter during the 2014 fiscal session.
But some lawmakers at that Aug. 28 hearing said that school shootings are relatively uncommon and that they don’t support arming teachers - as some districts, including Clarksville, have done. The Arkansas Education Association - the state’s largest teachers union - takes an official position that only police officers should be armed in schools, association President Brenda Robinson told lawmakers.
But leaders of districts that have armed employees said those teachers and staff members have undergone more training and screening than many private guards, and that it would be logistically and financially difficult for their school systems to hire law enforcement officers.
Some of those districts that were expecting to lose the security guard commissions had already started plans to train some of their employees as reserve deputies for their county sheriffs so they could remain armed.
Gary Gregory, sheriff of Little River County and security director of the Ashdown School District, said his office was working with that school system to seek the deputy designation for four of its employees before Wednesday’s meeting.
“The most valuable resource we have is our children,” he said. “That’s the most important thing.”
The board’s vote affects 13 districts. Some of those districts have said they do not have any armed employees, despite seeking a designation as a “private company” under the law in the past, or that they no longer plan to arm employees. The 13 districts are Ashdown, Clarksville, Concord, Cutter-Morning Star, Fort Smith, Lake Hamilton, Lee County, Little Rock, Nettleton, Poyen, Pulaski County Special, Texarkana and Westside Consolidated in Craighead County. The Little Rock and Pulaski County Special districts have said they do not use the security designations, relying instead on police officers.
Districts may be susceptible to legal challenges if they use security commissions to allow their employees to carry firearms on campus.
McDaniel’s opinion said school employees with private-security commissions that are found to be invalid may violate the section of Arkansas law that prohibits the carrying of firearms on school grounds in most circumstances. But those decisions would be left to local prosecuting attorneys, the opinion said.
“Simply put, the Code in my opinion does not authorize either licensing a school district as a guard company or classifying it as a private business authorized to employ its own teachers as armed guards,” the opinion said.
A spokesman for McDaniel said he had no comment about the board’s actions Wednesday.
Front Section, Pages 1 on 09/12/2013