BETHEL HEIGHTS -- Experts on the state's Freedom of Information Act said Bethel Heights' decision to close its Tuesday night council meeting to the public isn't as concerning as the lack of notice it gave.
City officials took advantage of the relaxation of the state's open-meeting law during the coronavirus pandemic.
The state Legislature, during its last fiscal session, passed an amendment to the act, giving cities more latitude to hold meetings remotely by "electronic means" if the governor declares a state of emergency. Act 2 0f 2020 expires at the end of 2020 or when the governor declares an end to the virus emergency.
Police Chief Rick Moore, who escorted two council members to a back door as the City Hall meeting was about to start, told six people waiting outside that the city wanted to maintain social distancing to prevent the spread of the virus.
He told them the meeting was closed, but would be streamed live on the Police Department's Facebook page. The people couldn't return home in time to watch the meeting, which lasted four minutes.
The council had been set to take action on securing an $11 million loan from the state and raising rates for sewer service for new wastewater-treatment infrastructure, but the issue was not voted upon.
Benton County prosecutor Nathan Smith said Thursday that he's investigating complaints about Tuesday night's meeting and whether the format violated the law.
"Since this investigation is ongoing, no other information will be released at this time," he said.
Robert Steinbuch, a law professor at the University of Arkansas at Little Rock and a co-author of the Arkansas Freedom of Information Act textbook, agreed the loosening of the definition of a public meeting gave the Bethel Heights City Council the latitude to meet electronically, but he questioned whether a city department's Facebook page was the right venue.
"Facebook, typically, is an internal social page," he said. "Why would it be reasonable to post it on the Facebook page rather than the city's website? If they have a government website, it's not reasonable to show it only on Facebook."
Christoph Keller, an associate with Quattlebaum, Grooms and Tull law firm in Little Rock, said the city's live broadcast on Facebook probably was OK, but not if Bethel Heights officials didn't announce it in advance.
A sign posted on the door of City Hall said the meeting agenda was limited to only issues that required the council's immediate attention. It didn't say the meeting was closed.
Moore told the group outside that notice of the closure was posted on the city's website, but no notice was there Tuesday night.
"The proof is in the pudding," Steinbuch said. "If it's not on the website, it's not on the website. At a bare minimum, it should be on their website."
Joe Brooks, one of the people who hoped to attend the meeting, said he tried to give the police chief a written statement to be read before the council, but Moore refused. Brooks has led a group of residents, called Citizens for Better Government, trying to get the city's wastewater-treatment plants closed and the city annexed into Springdale.
Keller noted the Freedom of Information Act doesn't require government boards to allow public comment at meetings. Rather, those rules typically are set by the individual governments.
"But what about the people who don't have Facebook accounts," he continued. "If they could have called in, that would be better."
"If it's a public meeting, it's a public meeting," Steinbuch said. "Government officials can't avoid public comment by hiding behind covid-19."
The council was expected to vote Tuesday on whether to accept an $11 million loan from the Arkansas Natural Resources Commission to build a pumping station and a connection to the waste water treatment plant operated by the Northwest Arkansas Conservation Authority in south Bentonville.
The commission set as one condition of the loan that the city raise its rates for sewer service by 66%. The commission tabled a decision on the loan Wednesday, concerned about the possible annexation.
Bethel Heights officials didn't vote on the loan or the rate increases at Tuesday's meeting. The livestream audio of the meeting was difficult to hear. The council approved the city pursuing the loan at its April 29 meeting.
Bethel Heights Mayor Cynthia Black and Robert Rhoads, an attorney hired to represent the city, didn't return three phone calls and email messages sent Wednesday and Thursday.