The chief financial officer for the state Department of Corrections told lawmakers on Thursday he doesn't believe the Board of Corrections intentionally violated state rules when it entered into a contract with outside legal counsel before filing a lawsuit against the governor and a former Department of Corrections secretary.
However, Chad Brown said during the Joint Performance Review Committee meeting the best path for preventing similar mistakes from happening in the future will depend on the Arkansas Supreme Court's decision regarding whether the board has the authority to get into such a contract in the first place.
Lawmakers also voted during the meeting to issue subpoenas for the Board of Corrections legal counsel, Abtin Mehdizadegan, and board member Alonza Jiles to appear before the body at its April 22 meeting. Neither attended Thursday's meeting, though Mehdizadegan said after the meeting he notified a member of the Bureau of Legislative Research's staff Friday that he was scheduled to appear at a separate function at the time.
The meeting is the second in which members of the Board of Corrections, officials from the Department of Corrections and others connected to the board or the procurement process were asked to appear before the committee. Mehdizadegan testified at the April 4 meeting, but Jiles was absent then as well.
Arkansas Legislative Council had requested the Joint Performance Review Committee's examination of the board's business during a March 15 meeting. The council also had requested a review from the Legislative Joint Auditing Committee.
Brown said Thursday he couldn't find a previous instance in which the Board of Corrections had procured a contract on its own. While the Department of Corrections has done so, and has protocols in place to catch "these kinds of nuances," the board does not, he said.
The Department of Corrections had asked the Legislative Council's Review Subcommittee on March 12 to ratify the board's contract with Mehdizadegan after state procurement director Ed Armstrong said ratification of the contract is required to make the contract a lawfully binding obligation on the state because it appeared that public procurement processes were not followed. Board of Corrections Chairman Benny Magness withdrew the body's contract with Mehdizadegan from consideration by the committee after he was unable to explain language that had been added to procurement documents.
Rep. Tara Shephard, D-Little Rock, asked Thursday for Brown's recommendation going forward regarding the Board of Corrections and possible future contracts. Brown said that would depend on "the legal side of the equation."
"If the court decides that the board has the authority to get into a contract, then I think protocols need to be put in place, not only from the department side, [but] from the board side, from the state procurement side, maybe from an appropriations side, where the board gets their own appropriation funding," Brown said. "There's a lot of pieces to this puzzle that I think need to be put together, but I think we need to wait for the courts to decide how we're going to move forward."
Brown said that, looking back on the Department of Corrections' request, "I'm not so sure the department should have been involved in this."
Instead, he said, the Board of Corrections should have written its own ratification letter and submitted it to the Office of State Procurement. Also, a Board of Corrections member or someone on its staff should have contacted the procurement office to tell it "we had no option to get something on y'all's agenda," Brown said. The Office of State Procurement website didn't provide an option for the Board of Corrections to fix the issue it faced, he said.
"There's multiple things around this whole issue that need to be addressed," he said. "If boards can get into contracts, they need to have the ability to go through the proper protocols to do that."
After committee co-chair Sen. Kim Hammer, R-Benton, asked him whether the board had the authority to enter into the contract, Brown said he didn't know the answer to the question because he isn't an attorney.
"Do you think it was a matter of there was no process in place, or do you think it was a matter that the processes in place were not followed?" Hammer asked.
"I don't think there's a process in place on the board's side of the equation because, again, they've never gone down this path before, so this is a new process," Brown responded.
The Department of Corrections normally handles administrative functions for the board, though those are "normal processes that always take place," according to Brown.
"This process had never taken place and we assumed that role, anyway," he said. "We didn't stop to really think, maybe this is not our role and we shouldn't be involved in this. Looking back, if I had to do it all over again, that's the process I would use."
SUBPOENAS
Rep. Marcus E. Richmond, R-Harvey, made the motion early in Thursday's meeting to subpoena Mehdizadegan and Jiles, which the committee approved.
Committee co-chair Rep. Mark H. Berry, R-Ozark, defended the decision at the close of the meeting, saying "when people refuse to comply" with invitations to appear before lawmakers, those lawmakers "can't get answers to the questions that we have."
"Believe it or not, this body has some authority," he said. "We don't use it that often, but when the Legislature is ignored it is our responsibility to hold those people accountable in order to get them into this room to answer questions of this body, the answers to our constituents and the state of Arkansas."
Mehdizadegan told the Democrat-Gazette he notified a Bureau of Legislative Research committee staff services member in an email that he had an appointment that day, but that he would be able to answer written questions as an alternative if a new time or date for his appearance couldn't be accommodated. According to the attorney, he was speaking at two conferences that day and had other responsibilities at the events.
Mehdizadegan said he received an email back from the staff member Wednesday apologizing for the delay in responding to him and that the staffer hadn't received any questions from the chairs.
Berry said in an interview Thursday evening the committee had rescheduled a meeting once before because the attorney initially said he couldn't make it before later telling them he would be able to attend after all.
"The subpoena is just letting him know that he needs to be there and if he has something on his schedule he needs to reschedule it," Berry said. "We're trying to wrap all this up, and the only way that we could do it is if all the parties are there."
However, Mehdizadegan said, "I am frustrated by the subpoena, and I believe it was an unnecessary act of political retribution and a waste of time and resources."
The attorney said he hasn't been paid for his work with the Board of Corrections.
"It's very curious to me that, over no payment of money, they have spent, what, 11 hours at this point grilling these volunteer board members and myself about money that's never been spent," Mehdizadegan said. "It would be nice if our government would act so quickly on other matters involving our government's operations."
Jiles' attorney, Jay Bequette, did not immediately reply to a request for comment on the vote to subpoena his client. Berry said the committee has invited him to appear before the committee twice but they haven't heard from him.
Jiles is one of several defendants named in five civil lawsuits by former residents of the Lord's Ranch. The 52 plaintiffs allege they were physically and sexually abused during their time at the now-closed treatment center in Randolph County, and that Jiles helped to cover up their mistreatment. Lawmakers, including several who are on the Joint Performance Review Committee, have made calls for him to resign from his seat on the Board of Corrections.
Mehdizadegan was hired by the Board of Corrections less than a week before he filed a lawsuit on the board's behalf challenging two laws passed in last year's legislative session that the board contends weaken its authority in violation of Amendment 33 to the state constitution.
Arkansas Attorney General Tim Griffin later filed suit against the board, saying it violated the Arkansas Freedom of Information Act when it went into executive session to hire Mehdizadegan.
Griffin has appealed rulings in the lawsuits to the Arkansas Supreme Court.
One appeal is related to a Jan. 19 ruling by Pulaski County Circuit Judge Patricia James that, in part, levied a preliminary injunction against two laws that the board's suit contends violate the state constitution. Gov. Sarah Huckabee Sanders is among defendants in that case.
The other concerns a Jan. 22 order from Pulaski County Circuit Judge Tim Fox's dismissal of Griffin's suit against the board.
The Joint Performance Review Committee will meet to discuss the Board of Corrections performance again at 10 a.m. April 22.
"Hopefully we'll be able to put this to bed or come up with some recommendations going forward," Berry said of the upcoming meeting.
Information for this article was contributed by Michael R. Wickline of the Arkansas Democrat-Gazette.