Attorney To Bentonville Board: Be Aware Of Law

Saturday, March 1, 2014

BENTONVILLE -- Any school board member suspected of releasing information discussed during an executive session could be prosecuted and charged with a felony, an attorney for the School District said during a board meeting last week.

Others familiar with the law, however, downplayed the threat the law poses to school board members and cannot think of an instance in which a board member has been charged for such an offense.

At A Glance

School Board Meetings

Bentonville’s School Board meets at 5:30 p.m. at the Administration Building, 500 Tiger Blvd., unless otherwise noted.

• Thursday: Planning meeting

• March 10: Second high school progress update, 6 p.m. at Old High Middle School, 406 N.W. Second St., Bentonville

• March 17: Regular meeting

• April 7: Planning meeting

• April 14: Board recognition evening, 6 p.m. at Old High Middle School

• April 21: Regular meeting

Source: Staff Report

Marshall Ney, the Bentonville School Board's attorney, was at the board's meeting Feb. 20, held to discuss Superintendent Michael Poore's evaluation and contract.

The board was weighing whether to allow public comment before it went into executive session. During discussion, Ney noted he had seen email circulated by community members that contained information that only could have come from an executive session.

"It's a felony to disclose that information," Ney said. "This board has an ethical obligation to maintain that confidentiality. I know there are district patrons who possess information that never should have been disclosed."

Bryan Vernetti, an attorney and former board member, was in the audience. He said Ney's comment piqued his interest, so he asked Ney to show him the relevant statute.

"I had never thought of (the law) that way, but I completely understand why Marshall said that," Vernetti said. "I don't think he was stretching the truth. His position was grounded in that (the law) does say that on its face."

Arkansas law states no board member or school employee "shall knowingly disclose any confidential information gained by reason of his or her position, nor shall the member knowingly otherwise use such information for his or her personal gain or benefit."

The law also states a person who knowingly violates that rule "shall be guilty of a felony." A court may order the offender to prison for up to five years and pay restitution and fines.

John Tull, a Little Rock attorney who specializes in the state's public-records and open-meetings law, said he couldn't imagine a prosecutor ever filing an action under that statute because it's too vague.

"What is 'sensitive'? Who the new coach is going to be? When spring break will be? That the school is looking for land for a new building?" Tull said. "Prosecutorial discretion should prevent any action ever being brought, and if it is, I do not believe the statute is valid.

"Can I tell you some idiot prosecutor will never file such a charge? No. But there are no reported cases on the statute, which tells you something."

Kristen Garner, an attorney for the Arkansas School Boards Association, said she wasn't aware of any such prosecutions under the law either, but she does her best to raise awareness of it to school boards.

It would be difficult for a superintendent whose personal privacy has been compromised in a confidentiality breach to file a lawsuit against his school board, Garner said.

"This would tend to have a chilling effect on the career of a school administrator," she said.

Vernetti also questioned what could be considered confidential information.

"The statute is pretty broad," Vernetti said. "If I were advising the School Board, I think I would admonish them not to discuss anything (from executive session) because a prosecutor could take that and run with it."

But Vernetti said there are possible scenarios where a criminal charge would be warranted.

"If a board member knew they were bidding out repaving the high school parking lot, and they knew the lowest bid was $50,000 and he told his contractor friend that so he could bid $49,000, I think that is using your position for financial gain," he said.

Travis Riggs, who spent 12 years on the School Board, said the possibility of a board member being charged with a felony for disclosing executive session conversations was news to him.

"Now we've always been told 'Don't do it, it's a bad thing.' But I never understood it to be a felony," Riggs said.

NW News on 03/01/2014