Bill Would Record Executive Sessions For Prosecutorial Review

A bill has been filed that would require all executive sessions to be recorded, with copies provided to the prosecuting attorney’s office for review. Prosecutors will oppose it as written because it would add too much work to their offices.

House Bill 1054 by Rep. Nate Bell, R-Mena, would require any “governing body, board, bureau, commission, or organization” that conducts an executive session to record the session, retain that copy for a year, and provide a copy to the local prosecuting attorney. The prosecutor or a designee would be required to review that recording to determine if Arkansas law was violated. The designee could be an individual or a review panel of three to five persons meeting to review one or more recordings.

The Arkansas Freedom of Information Act (FOIA) states in part, “Executive sessions will be permitted only for the purpose of considering employment, appointment, promotion, demotion, disciplining, or resignation of any public officer or employee. The specific purpose of the executive session shall be announced in public before going into executive session.”

Bell said that, because what happens in executive sessions can’t be verified, his evidence that they are being abused is anecdotal. He said one quorum court not in his district has a recent history of holding long executive sessions and short open meetings.

“The bill is aimed at creating a chilling effect on something that I’ve received a lot of citizen complaints on, and that is use of executive session to take up issues that are outside the scope of what is permitted in executive session,” he said.

The bill would add far too many responsibilities to prosecutors’ offices, said Larry Jegley, prosecuting attorney for the 6th Judicial District and vice president of the Arkansas Prosecuting Attorneys Association. As the prosecutor for the district that includes Pulaski County, Jegley’s office would be responsible for executive sessions that would occur during many state government meetings.

“I haven’t finished polling the other 27 elected prosecutors, but I’d be shocked if any of the 28 elected prosecutors would be in favor of the bill as written,” he said. “We’ve not had a chance to visit with Rep. Bell about our concerns, but obviously they will revolve around logistics and staffing, time and funding issues.”

Jegley, a prosecutor since 1991, said he has not seen evidence that abuse of executive session is a serious problem. “A mechanism like this particular bill would divert a herculean amount of resources from all 28 prosecutors’ offices, and I’m just not sure that that’s necessary at this point,” he said.

Bell believes volunteers could be found to listen to the recordings and said he is willing to consider changes.

“The mechanism is a means to an end. … If somebody has a better mechanism, I am totally open to listening to a better idea to accomplish the goal of the bill,” he said.

Under the terms of the bill, the recording can be erased or destroyed following the review. Correspondence between the prosecuting attorney and the designee would be exempt from disclosure, and a designee who discloses information would be guilty of a Class A misdemeanor and not immune from civil liability.

“That’s one of the reasons why I selected going to the prosecutors is because their activities are mostly FOIA-exempt,” Bell said.

The bill has been referred to the House State Agencies and Governmental Affairs Committee, which Bell chairs.

“Right now I would say I have my work cut out for me on passage,” he said. “I have several organizations that have indicated within the next few days that they will be publicly announcing their support. Should that happen, I think it helps us gain some synergy and get it done.”