Jones Says Fayetteville Commission Broke FOIA Law But He Won't Press Charges

FAYETTEVILLE -- Prosecuting Attorney Casey Jones believes the city's Advertising and Promotion commissioners violated the state's Freedom of Information Act, but he said Tuesday he won't file charges.

Jones said commissioners broke the law twice during a Nov. 10 meeting by holding an illegal executive session and by allowing someone not permitted into a second closed session.

"I don't think with either one of those violations that the intent of the commissioners was to thwart the Freedom of Information law," Jones said. "They all came to talk to me and were sworn in, and in my opinion were very forthright and unguarded."

Jones is requiring commissioners to attend an educational session with an attorney as a primer to the Freedom of Information Act. Vince Chadick, the commission's attorney, said he would also like to see commissioners attend a more in-depth session in the future.

"The more information, in my opinion, the better," he said. "Not only will they follow the spirit of the law, but they will follow the letter of the law."

Joel Walsh, a NWA Media reporter, filed a complaint with the city prosecutor asking Jones bring criminal charges against commissioners. Violation of the Freedom of Information Act is a Class C misdemeanor punishable by up to 30 days in jail and a $500 fine.

Commissioners were discussing candidates for the group's executive director position during the meeting and narrowed their list to three during the first closed session. Director Marilyn Heifner is retiring Jan. 31.

The Fayetteville Chamber of Commerce proposed running the commission and the group's members went into a second executive session to discuss the idea.

The Freedom of Information Act requires public bodies to meet in open session unless members are considering the employment, appointment, promotion, demotion, disciplining or resignation of any public officer or employee.

The law also requires the governing body to vote publicly on any action taken during closed sessions. The commission didn't reject the chamber's proposal in a public vote.

When challenged by Walsh, commissioners said after the meeting they treated the chamber's proposal the same as an individual applicant and believed they could discuss the issue in an executive session. Jones said that's what commissioners told him during his one-on-one interviews.

Heifner and Sandra Bennett, Town Center facilities manager, joined the seven commissioners in the closed meetings. The law states only the person holding the top administrative position in the public agency, department or office; the employee being discussed; and the employee's immediate supervisor can attend an executive session.

After a story by Walsh alleging the law's violations, the commission met again Nov. 14 to hold a public vote on the chamber's proposal. Commissioners voted 4-3 during the second meeting to reject the proposal. Matt Behrend, Bobby Ferrell and Justin Tennant voting for further discussions with the chamber and Ching Mong, Tim Freeman, Matthew Petty and Hannah Withers voted to end discussion.

Heifner said members voted the same way during the Nov. 10 closed session.

The Advertising and Promotion Commission is comprised of unpaid volunteers and city appointees. The commission determines how part of the city's hotel, motel and restaurant tax revenue is spent and advises commission staff on ways to promote the city.

Tennant and Petty are also members of the City Council. Neither Tennant nor Petty returned a message left on their cellphones late Tuesday seeking comment.

Rusty Turner, NWA Media publisher, said he's glad the newspaper filed the complaint and is gratified Jones agrees the law was violated.

"It's disturbing that sitting members of the City Council don't know the Freedom of Information Act any better than that," Turner said. "Fayetteville residents deserve elected officials who are more concerned with transparency."