Unnoticed Law Makes School Board Matters Less Open

Republican state Sen. Kim Hammer, left, and Rep. Bruce Cozart, who sponsored a bill that weakens school board transparency (Arkansas State Legislature)

A bill that gives Arkansas school boards more latitude to hold closed meetings went unnoticed by government transparency groups and became law at the end of the spring’s legislative session.

Senate Bill 543, now Act 883 of 2023, allows school boards to meet behind closed doors in executive session on matters that were previously subject to Arkansas’ Freedom of Information Act, one of the strongest state transparency laws in the country, but one that has come under increasing legislative attack.

Act 883 “did an end-run on the FOIA so that school boards can engage in more secrecy,” one critic said, and publisher Ellen Kreth of the Madison County Record said it was “snuck in” at the end of the legislative session and will be “devastating” to transparency for parents.

State Sen. Kim Hammer, R-Benton, sponsored the bill “to amend Arkansas law concerning school district boards of directors,” and was joined in the Arkansas House by state Rep. Bruce Cozart, R-Hot Springs.

It allows school boards to meet in executive session outside public view with school superintendents and lawyers to discuss litigation, settlement offers, contract disputes, and “discussions pertaining to real property.”

“In addition to persons permitted to be present at an executive session under the Freedom of Information Act of 1967 … the following may be present,” the bill says, going on to list “the superintendent of the school district” and “the attorney for the school district.”

Executive sessions had previously been reserved for confidential issues like personnel actions.

Rob Moritz, longtime Arkansas journalist and journalism professor at the University of Central Arkansas who heads the Freedom of Information Task Force, said he learned about ACT 883 on June 15, a month after the session ended. He described it as a “kick in the teeth” to the task force, which was created by the Legislature in 2017 to provide lawmakers with guidance on proposed amendments to the FOIA.

“SB 543, now Act 844, was passed late in the session in less than a week and was never vetted by the FOIA task force or any other group. And, the language changing the FOIA was cleverly buried in section 3 of a 12-page bill … ,” Moritz told Arkansas Business, where his wife, Gwen Moritz, is a contributing editor. “It passed overwhelmingly in both Senate and House committees, as well as in both the House and Senate. Many in the Senate and House members who are strong supporters of the FOIA voted for the bill. To me, that indicates they were unaware of the amendments.”

Rob Moritz said, “God only knows how many other amendments” will be discovered in bills that were “cleverly” filed late in the session.

Kreth, whose paper won a national award in 2021 for reporting on a sexual abuse scandal and its cover-up by the Huntsville School District, told Arkansas Business that the bill went unnoticed by all Freedom of Information Act watchdogs and was passed in a rush at the end of the regular session. The bill doesn’t directly amend the FOIA and the public meetings law is not mentioned in the bill’s description.

“I’ve heard many legislators complain that too many bills zoomed through at the last minute and without vetting,” Kreth said. “I’m surprised that the sponsor, Kim Hammer, pushed it through because he usually acts in favor of transparency, but not in this case.”

Hammer told Arkansas Business on Friday afternoon that the bottom line is that whatever is decided in executive session will ultimately be subject to a public vote.

“But I think there are situations where the board needs to have that extension of opportunities to be able to have some real frank discussions in order to arrive at a decision. And one example I would use is if a school is looking at purchasing a piece of property.

“Historically, they have a discussion about purchasing a piece of property, and a third party would go out and buy it, and it would jack up the price of the property,” Hammer said.

Allowing those negotiations to go on behind closed doors is reasonable without undermining the intent of the FOIA, he reasoned.

But Kreth, the Huntsville publisher, said her paper’s reporting in recent years underscores how important the FOIA is for parents’ rights to know what’s happening in schools. The Huntsville district failed to report and minimized sex abuse allegations by junior high basketball players who were bullied, held down and subjected to unwanted locker-room “baptism” rituals.

“When the Huntsville School Board admitted liability [under Title IX of the U.S. Educational Amendments of 1972], the attorney presented the reasons the district should not vote to accept liability both in a memo that we obtained through FOIA and in an oral presentation to the board,” Kreth said. “The board then discussed its feelings, asked multiple questions and finally determined in a 7-0 decision to go against the attorney’s advice and accept liability. Under the new law, no parent will be privy to any of that. They won’t understand the attorney’s reasoning or the board’s reasonings.”

Huntsville also just completed two new career and technical education buildings that Kreth says the community is rightfully proud of. “They purchased real estate to build one and a patron donated land for the other, all great things for parents to know about how their tax dollars are being spent and the programs being offered,” Kreth said. “But it was a real estate transaction to get started. Does that now mean all of that gets discussed in executive session behind closed doors? Shouldn’t parents be privy to new buildings and programs?”

Both Kreth and Hammer noted that the senator has historically supported the goals of the FOIA.

“But these are some areas where I think school boards ought to be able to have just some real frank discussions, not that it’s going to hide anything or keep anything from the public, ultimately, because whatever is decided is going to have to be done in a public setting,” Hammer said.

He said that having a lawyer in the executive session would save time and make sense.

“A school board would be having a discussion, they call the attorney and ask a question, and then the attorney would have to leave.” The board members would discuss the advice and then have to call the lawyer in again.

“This [Act 883] is going to do is allow that attorney to be in that executive session throughout the whole time, so that they can have the kind of discussion that needs to be had,” Hammer said.

Hammer also noted that the majority of the bill involves language to hold school board members to a higher standard of accountability for ethical behavior.

It requires an oath for school board members to support the U.S. and Arkansas Constitutions and to refrain from entering into any contract made by the school districts they’re serving.

Moritz of the task force said he’s extremely concerned about the FOIA, especially considering some bills taking aim at it came near to passage before “cooler heads” in the Legislature eventually rejected them. “HB 1610 would have defined a public meeting as 1/3 of a membership and then the sponsor, who did not want to discuss a compromise with media groups and other FOIA supporters, proposed another amendment to set the definition at a quorum.” Moritz said. “Despite no support from the FOIA task force, she ran the second amendment and it passed committee and the House. It died in the Senate at the end of the session.”

Another bill would have drastically changed the FOIA, he said, “including language that all pre-decisions and attorney documents would be exempt and the public would be charged for FOIA document production.” That bill drew dozens of speakers against it, mostly from the general public. It was voted down after hours of debate.

Now, Arkansas Attorney General Tim Griffin has formed a working group to update the law, Moritz said. “It is stacked with AG personnel and two lawmakers, along with the director of the Arkansas Press Association and John Tull, attorney for media organizations… And, their meetings will not be open to the public.

“No transparency. Unbelievable.”