Board investigated over closed session

Meeting to discuss takeover, chief says

FAYETTEVILLE — Prosecuting Attorney Casey Jones is investigating the Fayetteville Advertising and Promotion Commission for possible violations of the state’s Freedom of Information Act.

Joel Walsh, a Northwest Arkansas Times reporter, filed a complaint with Jones on Nov. 18 about an executive session that commissioners held Nov. 10 to discuss a Chamber of Commerce proposal to operate the group. Commissioners voted 4-3 to reject the proposal, said the public agency’s executive director, Marilyn Heifner.

The commission is reviewing applications to replace Heifner, who is retiring Jan. 31.

John Tull, general counsel for the Arkansas Press Association, has said the discussion and vote should have been done in open session. The Arkansas Freedom of Information Act requires public bodies to meet in open session unless members are considering the employment, appointment, promotion, demotion, discipline or resignation of any public officer or employee.

Jones is also investigating who attended the executive session. Heifner and Sandra Bennett, Town Center facilities manager, joined the seven commissioners in the closed meeting. Heifner has said she and Bennett are members of a search committee.

The law states that only the person holding the top administrative position in the public agency, department or office; the employee being discussed; and the employee’s immediate supervisor can attend an executive session.

The commission held a special meeting Nov. 14 to publicly vote on the chamber’s proposal. The group discussed the issue again during the open session at the suggestion of its attorney, Vince Chadick. He was not at the Nov. 10 meeting.

Commissioners voted the same way the second time, with Matt Behrend, Bobby Ferrell and Justin Tennant voting for further discussions with the chamber and Chairman Ching Mong, Tim Freeman, Matthew Petty and Hannah Withers voting to end discussion.

Heifner has said the group didn’t purposefully violate the law and would have done things differently if someone had pointed out the error.

Jones said last week that he is interviewing commissioners before determining whether criminal charges will be filed. He said charges may not be filed even if he determines there was a Freedom of Information Act violation. A violation is a Class C misdemeanor punishable by up to 30 days in jail and a $500 fine.

Jones had no timeline for when his investigation would be complete.

One thing that will help him determine whether he will file charges is intent, meaning commissioners knowingly violated the law, he said.

Commissioners have said they treated the chamber’s proposal as another job candidate that can be discussed during executive session. Tull said organizations such as the chamber and their proposals are not individuals who warrant privacy when their qualifications are discussed.

He added that the special meeting to discuss and vote on the issue does not change the fact they broke the law.

“If a meeting is illegal under the Freedom of Information Act, it is illegal under the Freedom of Information Act and you can’t undo that,” he said Friday.

The Advertising and Promotion Commission has fun afoul of the state open-records law before.

Heifner pleaded no contest March 14, 2012, to violating the state’s Freedom of Information Act. Under the plea agreement, she received a 30-day suspended jail sentence, $100 fine and $120 in court costs for the misdemeanor. Her record was expunged after a year without a violation. Her attorney at the time said she admitted no wrongdoing.

The charge came after the Northwest Arkansas Times filed a complaint against her, alleging she violated the law when she failed to immediately give a reporter papers related to the leasing of the old post office building on the downtown square.