Attorney: CAPC violated state law on executive session

Thursday, January 30, 2020

By Scott Loftis

and Samantha Jones

The Eureka Springs City Advertising and Promotion Commission violated the Arkansas Freedom of Information Act at its meeting on Jan. 22, in the opinion of a Little Rock attorney who represents the Arkansas Press Association.

Before the commission went into executive session, a reporter pointed out that state law permits executive sessions only for certain purposes, including discussions related to hiring, firing, promoting, demoting or disciplining an employee. The law stipulates that the specific purpose of the executive session must be announced.

At the Jan. 22 meeting, CAPC chair Carol Wright said the commission would be going into executive session to “discuss personnel.”

When a reporter questioned whether Wright’s description constituted a specific reason, Wright responded: “That’s the reason I’m giving you.”

John Tull, a partner in the Little Rock law firm of Quattlebaum, Grooms and Tull, said Wright’s explanation was not in keeping with the FOIA.

“When an entity goes into executive session, they must give a specific rather than a general reason,” Tull said. “It can’t be just for personnel. It can be ‘we’re going for a personnel issue concerning hiring or firing somebody,’ or ‘we’re going for a personnel considerance regarding whether someone is going to be demoted.’ But it can’t be just a general personnel decision. … That’s clearly a violation.”

The FOIA outlines specific guidelines for public bodies meeting in executive session.

“(E)xecutive sessions will be permitted only for the purpose of considering employment, appointment, promotion, demotion, disciplining, or resignation of any public officer or employee,” the act says, with the only exception being for matters related to the security of a public water system or utility system. “The specific purpose of the executive session shall be announced in public before going into executive session.”

Decisions reached in executive session must be ratified by vote in public.

“No resolution, ordinance, rule, contract, regulation, or motion considered or arrived at in executive session will be legal unless, following the executive session, the public body reconvenes in public session and presents and votes on the resolution, ordinance, rule, contract, regulation, or motion,” the act says.

Tull received the Arkansas Press Association’s Freedom of Information Award in 2018 and has provided members of the press association with legal assistance since the early 1990s.

On Tuesday, Carroll County Newspapers contacted prosecuting attorney Tony Rogers to initiate a complaint against the CAPC regarding the executive session.

Alderman Bob Thomas addressed the CAPC's Jan. 22 meeting at a City Council meeting Monday night, saying he was "really disappointed.”

"Sometimes, when things are right or wrong, you still have to confront them because the people want to know what's happening," Thomas said. "Everybody was anticipating they would go into an executive session. When the chairperson called for the executive session, Scott Loftis got up and explained to her that to go into executive session, you have to be very specific about why you're going into that executive session."

Thomas said the chairperson cut Loftis off and said it was a personnel matter.

"The specific purpose of an executive session must be announced to the public before going into executive session. Personnel is not specific," Thomas said.

When the commission took no action, Thomas said, that didn't sit right with him.

"I don't know what they were talking about in there. They could have been having coffee or whatever," Thomas said.

Thomas said he was alarmed by the language he read in the Citizen's Jan. 16 report about executive director Lacey Ekberg's employment history.

"It's totally inappropriate for somebody in that position. I just felt the CAPC commissioners really really failed to be responsible for their employee," Thomas said, "and how she represented herself and the questions that were raised."

Alderwoman Mickey Schneider then spoke, saying Loftis has a personal agenda against Ekberg and this is "his way of fighting back.”

"He and I had a short little talk that night while they were in the privacy thing," Schneider said. "[Loftis] was right on some things and wrong on others, and [Ekberg has] been putting up with him since she got here. It's all private agendas."

Schneider said it was fine for the CAPC to give personnel as the reason for the executive session.

"Personnel is a very private session," Schneider said. "That's why you go into executive session, because it's private."

Alderwoman Susan Harman, who represents the council on the CAPC, said she was disappointed to answer questions about Ekberg's background and Ekberg's statement that the commissioners were "all laughing about this."

"For me, the answers to questions must always be truthful and accurate, though at times uncomfortable," Harman said. "Small town politics can be brutal and although some appreciate my truthfulness, others do not."

Harman said she will continue to work hard to be sure the issues at the CAPC are resolved and that there are policies in place for vetting future staff. It's important for city employees to represent the city professionally, Harman said. She said she has received "countless complaints" about how the CAPC and the city have been represented in this situation, calling for more professionalism within "not only the CAPC staff and CAPC commissioners but all of the city's institutions."

"We know it's been a topic needing to be addressed for a some time, but recent issues with the newspaper and social media make it a priority," Harman said. "There is a consensus in our community that we need to put measures in place to ensure professionalism not only with CAPC staff but with the commission as well."

When she moved to Eureka Springs, Harman recalled, someone told her that bad behavior has been rewarded too many times in the city.

"Well, I am here to say that bad behavior cannot and should not be rewarded," Harman said. "As representatives of the city, our goal should always be in the best interest of the city."

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  • This is the right direction. Shine the light on anything that may have been hidden. Look for any internal or external involvement. Remember, immunity doesn't apply if rules were broken intentionally. Let the depositions begin.

    -- Posted by outofthebox on Thu, Jan 30, 2020, at 8:47 PM
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