Prison-board bypass barred for governor
AG sues panel, maintains it broke open-meetings law
A Pulaski County circuit judge has issued an order blocking the governor from using two recently passed laws to bypass the Arkansas Board of Corrections’ constitutional authority, while Attorney General Tim Griffin has filed a lawsuit against the board saying it violated the state’s Freedom of Information Act.
The temporary restraining order issued by Judge Patricia James on Friday afternoon comes in response to a lawsuit the Corrections Board filed Thursday against Gov. Sarah Huckabee Sanders and Department of Corrections Secretary Joe Profiri, alleging the two had used a pair of state laws to go around the board’s authority. James’ order temporarily bars the state from enforcing Act 185 and some sections of Act 659. James set a hearing date for Dec. 28.
In her order, James said the board’s lawsuit against the governor was likely to succeed on the merits as the board’s authority is ingrained in the state constitution.
“Governor Sanders will continue to work with the Attorney General to respond appropriately in court, end the policy of catch and early release of dangerous criminals, and defend the safety of Arkansans,” Alexa Henning, a spokesperson for the governor, said in a statement.
The dispute between the board and the Republican governor came to a head Thursday when board members voted to suspend Profiri — Sanders’ handpicked secretary to lead the Corrections Department — with pay and filed its legal action against the governor.
Just minutes after James’ order posted online, Griffin’s office announced a separate lawsuit against the Board of Corrections alleging the board violated the state’s open meetings and records law when it hired outside counsel during a closed session and that it failed to properly respond to a Freedom of Information Act request from the attorney general’s office.
During the closed session,
the board decided to hire Little Rock attorney Abtin Mehdizadegan of Hall Booth Smith to represent the board in the lawsuit against Sanders and Profiri.
The public fight between Sanders and the Corrections Board began last month when the governor called a news conference to pressure board members into backing her request to add additional beds at several state facilities.
The board has accepted part of Sanders’ request, signing off on plans to add 60 temporary beds at the Ouachita River Unit in Malvern and 70 at the North Central Unit in Calico Rock. However, it turned down Sanders’ request to add a combined 492 beds at the Ester Unit in Pine Bluff, the McPherson Unit in Newport and the Maximum Security Unit in Jefferson County, which drew the ire of the governor, attorney general and corrections secretary.
Sanders ordered Profiri to add the requested beds without the board’s approval, citing Acts 185 and 659, both passed earlier this year, as legal justification. Act 185 states the secretary of corrections serves at the pleasure of the governor, not the Board of Corrections. Act 659, also known as the Protect Act, requires directors of the Division of Correction and the Division of Community Correction to serve at the pleasure of the secretary, not the board.
The board maintains those laws violate the board’s authority, which comes from Amendment 33 to the Arkansas Constitution. Anticipating legal action to come, the board met in a closed session last week to retain Mehdizadegan as legal counsel and to discuss Profiri’s job performance.
The board voted 3-2 on Thursday to suspend Profiri, with board Chairman Benny Magness saying after the meeting, “The secretary has made it clear in public and in private that he works exclusively for the governor and not the board.”
The suspension meant Profiri was “prohibited from entry onto any property operated, owned, or leased by the Arkansas Board of Corrections or its subordinate departments and divisions,” except for his state-provided housing, and that he was “also barred from accessing any Board technology resources,” according to a letter sent by the board to Sanders and Griffin. The letter also stated, “In the event Mr. Profiri disobeys this directive, the matter will be referred to appropriate law enforcement.”
Profiri vowed to continue working as secretary, but he did not show up to any department offices Friday, according to Department of Corrections spokesperson Dina Tyler. Instead, Profiri met with Sanders on Friday in the governor’s conference room at the state Capitol, along with House Speaker Matthew Shepherd, R-El Dorado, and Senate President Pro-tempore Bart Hester, R-Cave Springs.
“Governor Sanders met with Secretary of Corrections Joe Profiri this morning to express her confidence in his continued leadership at the Department,” according to an account of the meeting from the governor’s office. “They discussed the need to add bed space in state prisons to take pressure off overburdened county jails and provide the safety and security that Arkansans deserve.”
The account of the meeting also said Sanders and Profiri “spoke about the Board of Correction’s politically motivated stunts to suspend Secretary Profiri.”
Tyler said Profiri’s suspension means he is not allowed to use his state-issued phone, computer and email or access the Department of Corrections’ databases.
AMENDMENT 33
The board’s legal arguments rely on Amendment 33 to the Arkansas Constitution that prohibits the governor and Legislature from making certain kinds of changes to state boards and commissions that oversee Arkansas’ charitable, penal, correctional and higher education institutions.
The amendment, which was ratified in 1942, was intended to make state boards and commissions independent from politics. What generated the amendment was a dispute between Gov. Homer M. Adkins and J. William Fulbright.
Adkins appointed all new members of the University of Arkansas-Fayetteville’s board so that he could fire Fulbright, who was serving as the university’s president at the time, according to the Central Arkansas Library System’s Encyclopedia of Arkansas. Adkins wanted to punish Fulbright, whom he saw as a political rival, and to exact revenge against Fulbright’s mother, Roberta W. Fulbright, publisher of the Northwest Arkansas Times and an outspoken critic of the governor.
The move angered much of the public, which prompted the attempt to curb the governor’s authority over certain types of state boards through a series of constitutional amendments that were ratified in the 1940s and 1950s, Ben Johnson, a retired history professor from Southern Arkansas University, said Friday in an interview with the Arkansas Democrat-Gazette.
“Whenever you shift [an] authority from elected to appointed officials … the desire is to insulate these agencies from politics,” Johnson said.
ATTORNEY GENERAL VS. CORRECTIONS BOARD
In the lawsuit, Griffin’s office alleges the Corrections Board violated the Arkansas Freedom of Information
Act when it went into closed session during its Dec. 8 meeting to discuss the hiring of a special counsel.
Griffin said public bodies can go into a closed session to discuss a personnel matter for “any public officer or employee.” Since Mehdizadegan, the attorney hired as special counsel by the board, is not a public official, its decision to meet in closed session to discuss his employment violated the state’s sunshine law, according to the lawsuit.
The lawsuit also alleges the board failed to properly comply with a records request the attorney general’s office made Dec. 11, in which it asked for the board’s communications concerning hiring outside counsel. The attorney general’s office said it received a response Thursday containing more than 1,500 pages of documents, none of which were the records Griffin’s office sought. The lawsuit states that if the board did not have the records the attorney general’s office was seeking, “a custodian is required to certify that ‘no records exist’ that are responsive to a specific request if that is the case.”
“The Board of Corrections has shown a complete disregard for the law, so I am asking the court to step in to compel compliance,” Griffin said in a news release announcing his lawsuit.
The attorney general’s office also contends the board violated the Freedom of Information Act when it named Jerry Bradshaw as acting Corrections Department secretary at its Thursday meeting, saying that decision also was made during an illegal closed session.
However, Tyler said the department has not appointed Bradshaw nor anyone else to lead the department in an interim role.
“I believe the attorney general’s FOIA lawsuit reflects a dangerous weaponization of the attorney general’s law enforcement resources,” Mehdizadegan said. “To exact political revenge against the Board of Corrections, which is doing nothing but attempting to fulfill its duty to uphold the constitution.”