The Lonoke County Library Board dismissed a challenge for a violation of the Freedom of Information Act during its meeting on April 11.
According to the agenda provided for the meeting, the resignation of Lynnette Ward and restructuring of staff by cutting hours and eliminating positions were the two items the board would discuss during the executive session portion of the meeting. In addition, the agenda read that consultant to the library director, Leroy Gattin, requested permission to stay during the restructuring of staff portion of the executive session.
Before moving into executive session, the board unanimously voted to allow both director Deborah Moore and consultant Leroy Gattin, to stay for the full portion of the closed meeting. While resignation of an employee is permissible for executive session, restructuring of staff and allowing Gattin to be present during the closed meeting, was contested.
“It is permissible,” Moore said when the board was challenged during the meeting.
Despite being challenged on moving into executive session for a non-permissible purpose and granting a none employee permission to remain, the board moved into closed meeting.
Ark. Code Ann. § 25-19-106(c)(1) provides that “executive sessions will be permitted only for the purpose of considering employment, appointment, promotion, demotion, disciplinary, or resignation of any public officer or employee.” The exemption only applies to the extent that the governing body is dealing with individual employees.
“There are relatively few exceptions to the FOIA’s general rules that governing bodies not meet in public,” John E. Tull III, general counsel for the Arkansas Press Association, said. “In my opinion, a discussion of personnel restructuring including salary or hour reductions or elimination of staff is a violation of the FOIA.”
In addition, Section 25-19-106(c)(2) lists the persons who may attend an executive session: the person holding the top administrative position in the public agency, department, or office involved, the immediate supervisor of the employee involved, the employee himself, and for hiring decisions, the person being interviewed.
“The Arkansas Attorney General has ruled consistently that no one other than the listed persons are allowed to attend the executive session, ” Tull said. “For instance, legal counsel for the board nor legal counsel for the employee are allowed to attend an executive session. In my opinion, if an outside consultant was allowed to attend an executive session, it was a violation of the FOIA.”
After returning to the regular meeting, following a 35 minute executive session, the board did not vote in public on action, if any, arrived at in private. Despite the lack of public voting, Moore told her secretary Melissa Moody that the board amended the agenda during executive session, to reflect the executive session portion of the agenda as “discussion of personnel”. Although agenda amendment discussion is not permissible in executive session under FOIA, the statute also requires governing bodies to reconvene in public for a formal vote.
Furthermore, in their seminal treatise The Arkansas Freedom of Information Act (Fifth Ed.), Prof. John Watkins and Richard Peltz explain what is meant by “specific purpose” for executive session announcement. “By using the term ‘specific purpose,’ the legislature made plain that the announcement must reflect why the governing body is invoking the exemption. For example, ‘we are going into executive session to consider the demotion of an employee’ would suffice, as Section 25-19-106(c)(1) specifically lists demotion as one of the matters that can be discussed at a closed meeting. By contrast, a general statement that ‘we are going into executive session to consider personnel matters’ would not satisfy the requirement.”
Therefore despite the unratified amendment to the agenda, the general statement that “the board is going into executive session for discussion of personnel” would have not satisfy the requirements of the FOIA, as a more detailed description is required so the public understands the “specific purpose” of the executive session.
Negligent violation of the Freedom of Information Act is a punishable crime considered a Class C misdemeanor.
In other business during the meeting, new officers for the Lonoke County Library board were elected during the meeting. Patricia Schafer was elected as president and Sheila Rice as secretary.
Also during the meeting, the board unanimously approved to:
-Accept the 2017-2019 Technology Plan, 2016 yearly statistics, First Quarter 2017 Statistics, LCLS Disaster Preparedness Plan, proposed policy for the 3-D printer with money paid upfront and the Lonoke County Library System’s Unattended and Disruptive Children’s Policy with edits.
- Allow the Lonoke County Election Committee to use the Cabot Public Library as a site for a polling location.
-Advertise for three different branch manager position for Carlisle, Cabot and Lonoke.
-Remove Lynnette Ward’s name from all library bank accounts at Carlisle and Lonoke Libraries.
-Designate a computer at each library for 15 minute sessions from 3:30 p.m. until closing at all Lonoke County Library System branches.
The next regular scheduled Lonoke County Library Board of Trustees meeting will meet at 5:30 p.m. on May 9 in the Lonoke Library.