West Memphis School Board Broke the Law with Secret Meetings

WEST MEMPHIS, Ark. – A settlement has been reached in a lawsuit against the West Memphis School District after they held secret interviews to hire a new superintendent without telling the public.

But open records advocates say this case is a broader example of why Arkansas needs stronger laws in place for free information.

In the agreed order, signed by Judge Keith Chrestman on February 23, the district agreed to pay a paltry $1,500 for their violation of the law. More importantly, they admitted to being wrong. The Arkansas Freedom of Information Act mandates that public entities give notice to the media and the constituents about any gathering where members meet to conduct business. The school board failed in doing so.

The case was brought by plaintiffs Tammy Bell and Cheryl Roe, represented by Fort Smith trial lawyer and public record advocate Joey McCutchen. A press release from McCutchen’s office described the events more. The school board announced in May 2023 that Dr. Terrance Brown had been chosen as the new superintendent following the board’s interviews of candidates. But no notice of these interviews was given to the public.

Emails later obtained in a FOIA request showed the board secretly interviewed four candidates for the superintendent position.

“There was to be complete lack of transparency by several board members beginning with the termination of Dr. Richard Atwill, the payment of $350,000 of taxpayer money, and concluding with the secret hiring of the new replacement Superintendent Terrence Brown,” McCutchen said in a release.

Board member Dr. Kimberly Wolfe was apparently concerned, herself, about the board violating Arkansas law by not giving notice of the interviews, the lawsuit stated. At least one other board member, Billy Thomen, also spoke up against the illegal meetings, but was ignored.

The board announced in May 2023 that Dr. Terrence Brown was selected as the new superintendent after the Board conducted interviews. No notice of these interviews was given to the public or media, in clear violation of FOIA. Emails obtained through a FOIA request showed that the board secretly interviewed four candidates for the superintendent position.

The court found that the defendants violated FOIA by holding these meetings without notifying the media at least two hours prior so the public could have representatives present. The court also found the board broke the law by not recording the special meetings and maintaining the recordings for at least one year, as provided under Ark. Code Ann. 25-19-106.

NEA Report contacted the board by email on Tuesday, directing our questions specifically to School Board President Joann Faulkner, but sending the email to all members including Joyce Gray, Anthony Hampton, Basil Joiner, Emily Scarbrough, Billy Thomen, and Dr. Kimberly Wolfe. We sent the following questions:

1. Do you think you should pay the school district back for the mistake you made?
2. Do you think it sends a good message to youth in your district that the board doesn’t follow the law?
3. Will you be offering a public apology for your mistakes?
4. Will you commit to following the law in the future and notifying the public of your meetings ahead of time?
5. Why all of the secrecy with this? What possible justification is there?

Any response we receive to our questions will be published here but there has been no response as of this publication.

“This lawsuit is a perfect example of why the people of Arkansas are pursuing a constitutional amendment and peoples’ act to enshrine the right to transparency in our constitution,” McCutchen said in his release. “This case is the perfect example of the need in the peoples’ law to allow a Circuit Court to hold individual wrongdoers personally liable with the imposition of a $1,000 civil penalty which will not be satisfied with public funds. Conduct rewarded is conduct repeated.”

Making Free Information a Right

Even when the courts rule that the defendants broke open records law, the penalty is always minimal. In this case, it was only for costs and attorney’s fees. Since those are paid for by the government entity losing, there’s no risk to the individual in breaking the law.

But there’s an effort underway in Arkansas to change that.

Jimmie Cavin is a free speech advocate and an open records proponent. Both he and McCutchen are part of a group that is pushing a major upgrade to public records laws in Arkansas. The goal of the group is to pass both a constitutional amendment, the Arkansas Government Openness Amendment, and an act supporting it, called the Arkansas Government Disclosure Act.

“The amendment puts it in the constitution that it is a citizen’s right to government transparency,” Cavin told NEA Report. “The second thing it puts in there is the legislature can not change the FOIA at all without a two-thirds vote in the House and two-thirds vote in the Senate, and that’s only to refer it to the people to put it on the ballot. The third thing is, it takes away sovereign immunity as far as FOIA, and would allow you to sue the state.”

The two-pronged approach includes an act, as well, which would do something McCutchen said the legislature has failed in its responsibility to do – define what a meeting is. Their failure to act has invited secrecy with relation to public meetings, McCutchen said.

“We’ve been to the legislature for a decade trying to get them to define what a meeting was,” McCutchen said. “They didn’t do it. The people had to do this.”

The act would also create what is being called the “People’s Commission.” It would be an oversight committee, with subpoena power, that would hear cases of FOIA violations. Presently, anyone who has a complaint about FOIA law must go through the circuit courts. Cavin said the average citizen must hire an attorney, then they’re out that expense. Then you must go before a judge and prove your case. And even if you win, there’s no guarantee that you’ll get your attorney fees paid.

Cavin points out this is exactly why government entities like the West Memphis School Board routinely violate public records laws.

“Even with the order against them, the district pays the legal fees, the attorney fees, but in reality, the taxpayers pay it,” Cavin said. “The board broke the law and taxpayers paid to defend them. And nothing got done to the board. They were not held accountable and there was no penalty to them.”

But, the proposed changes to the laws would fix that loophole. The act, if passed, will create a commission of five members. If citizens are denied rights, instead of going to court, they can go to the commission, who will look at the issue and decide if the law has been violated.

There’s more, too. If the person who violated the law can be shown to have done so purposely, the act creates a civil penalty for the person of up to $1,000 per instance.

“So in this case, all the board members who broke the law would have to pay $1,000 out of their own pocket,” Cavin said, as an example.

That’s where the teeth come into it.
– Jimmie Cavin

After much back and forth with the state’s attorney general, the language in both the act and amendment have been approved. Proponents for both are now in the signature gathering phase. The amendment will require over 90,000 while the act will need over 73,000. There are also specific requirements for those signatures to be spread out across multiple counties. For example, Craighead County will need to contribute over 5,000 signatures.

If the signatures are successfully gathered, then the measures will be on the ballot this November for the voters to decide.

“I think it’s an all or nothing proposition, frankly,” McCutchen said. “We will have the strongest FOIA in the country if we pass this two pronged approach. And if we don’t, we will have no FOIA left. This legislature will gut it. It’s sad, but I really think that. But we’ve got to pass both prongs. One without the other is not nearly as strong. It’s good to constitutionalize a right to know but if you don’t have the substance, like the definition of a meeting, then we’re stuck…”

McCutchen says the issue is about freedom at its core. He said if we are going to be a free society, we need the right to know what our government is doing – not just the decisions they make, but how they reached those decisions.

“We need to have the tough conversations in public and not secretly,” McCutchen said.

Both McCutchen and Cavin will be in Jonesboro next week talking to the public about the proposed amendment and act. At 6 PM on Monday at Golden Corral in Jonesboro, the Northeast Arkansas Tea Party will host their monthly meeting, with guests McCutchen and Cavin. Paul Harrell will also be a speaker at the meeting.