AAC F A M I L Y & F R I E N D S FOIA
randum, draft ordinance, and “other documents” to five out of seven board members before a “study session” of the board, “at which the proposed ordinance would be discussed but not voted on.” Although approval was not solicited by the city administra- tor, upon the memorandum’s delivery, two members expressed their favor for the ordinance, and two expressed disfavor. Te ordinance was discussed at the subsequent study session, but was never placed on the agenda of a regular meeting for a vote. McCutchen alleged that the city administrator held a series of
private individual meetings with board members to attempt to influence their decisions about this proposed ordinance, in know- ing violation of Arkansas FOIA public meeting provisions. How- ever, the court held that although the memorandum contained a draft of the proposed ordinance, went as far as to recommend approval of the ordinance, and even though some board mem- bers offered their opinion regarding the ordinance, the city ad- ministrator had not polled the members or attempted to “obtain approval of action to be taken by the Board as a whole.” Rather, the court found that in McCutchen, the purpose of distributing the memorandum was to “provide background information on an issue that would be discussed at an upcoming study session,” noting that there was no evidence that the issue was debated or further discussed prior to the public study session and also no evidence that the board members ever discussed the issue among one another prior to the study session. Like the Harris ruling, the McCutchen ruling would likely be applied similarly to a county judge/quorum court member situ- ation. Terefore, after the McCutchen ruling, the clear law set forth by the Arkansas Supreme Court concerning communica- tions outside of a public meeting between a county judge and quorum court members are:
• A county judge may not privately “poll” or seek approval or disapproval over a matter of business that will be before the quorum court for a vote, even if this polling is done on a one-on-one basis. Tis situation would be subject to the FOIA public meeting provisions.
•
It is permissible for a county judge to disseminate back- ground information to quorum court members on a mat- ter that will be before them for study purposes only, but not to poll, debate or further discuss the matter outside of a proper public meeting.
Tere are several instances that fall in between these two situ- ations that the court has not yet specifically addressed, for exam-
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ple: whether in McCutchen the court might have found a FOIA violation if the matter had been one coming before the board for a vote rather than merely a non-voting study session. Te clear lines regarding communications between a quorum court mem- ber and county judge have been drawn, while leaving plenty of room for gray-area interpretation in between.
“Meetings” Involving Various County or District Elected Officials
As a general rule, the Attorney General’s office has opined in
AG Opinion 97-202 that meetings involving various countywide elected officials, such as a meeting between the county judge, sheriff, circuit clerk, county clerk and assessor would not be sub- ject to FOIA public meeting provisions. Tis is because this col- lection of officials does not make up any “governing body.” How- ever, that group of officials could subject themselves to FOIA if the group had some actual decision-making authority, they “merely rubber-stamp the recommendations of a committee,” or more than one member of a represented governing body are at the meeting and discuss official business on which the governing body might foreseeably take action. Regarding quorum court members, this means that generally,
a quorum court member discussing county business one-on-one with a countywide elected official (other than the county judge) would not be subject to FOIA public meeting provisions. How- ever, a meeting involving two members of the quorum court and another countywide elected official probably would be subject to FOIA if the matter was one that would foreseeably come before the quorum court for their action. In conclusion, I leave you with my general advice on most any county government matter: it is better to be safe than sorry. If you have a question about whether a communication might be subject to FOIA public meeting provisions, call your county at- torney and ask him or her — particularly if your county attorney is also a prosecutor, the party who brings FOIA lawsuits. Former Attorney General Dustin McDaniel named access to information in an open and public government “one of the hallmarks of a democratic society.” By following these few guidelines set by the Arkansas legislature and the courts, and avoiding the gray areas in between, we can all preserve the intention and integrity of “the people’s law.”
* Te most recent Arkansas Freedom of Information Handbook can be obtained through the Arkansas Attorney General’s office, ei- ther in hard copy or electronic form.
www.arcounties.org 18 COUNTY LINES, WINTER 2016
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