Could an Arkansas civil service commission privately reconsider a police officer's discipline, and how could the officer appeal?

Plain-English summary

The Attorney General did not decide whether the Helena-West Helena Civil Service Commission acted lawfully when it met privately and later reconsidered a former police sergeant's reinstatement. Those questions depended on disputed facts and could have required the AG to give private legal advice. The opinion instead described the rules that governed civil-service disciplinary trials, executive sessions, and appeals in 2013.

For a personnel executive session, the governing body had to give the required notice, convene a meeting open to the public, and announce the specific reason for entering executive session. The opinion also said the Freedom of Information Act's list of permitted attendees did not include attorneys. Whether the commission followed those steps was left to the appropriate fact-finder.

The AG gave a direct answer on appeal procedure. The employee had to file a notice of appeal with the commission within 30 days of its decision. The circuit court could review the record and receive further evidence, and the statute provided a further appeal to the Arkansas Supreme Court.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

How the opinion applied in 2013

Civil-service commissioners and municipal officials

The opinion described a commission proceeding under A.C.A. § 14-51-308 as a trial that could involve witnesses, pleadings, evidentiary rulings, a transcript, and a final decision by majority vote. It did not decide whether this commission's first vote, private meeting, rescission, or later trial complied with those requirements.

Public employees and police officers

For an employee challenging a civil-service commission decision, the opinion identified a statutory appeal to the circuit court where the commission was situated. It said the appeal began with a notice filed with the commission within 30 days.

Open-government readers

The opinion treated the commission as a governing body subject to Arkansas FOIA meeting procedures. It also drew a distinction between a possible violation at the private meeting and the validity of the commission's later action, which the request described as occurring at an open public trial.

Common questions

Did the AG find that the private meeting violated Arkansas FOIA?

No. The AG said he lacked all surrounding facts and opposing arguments, so he left that determination to the appropriate fact-finder.

Could attorneys attend a personnel executive session under the rule discussed in the opinion?

No. The opinion said A.C.A. § 25-19-106(c)(2) contained the complete list of permitted attendees and that attorneys were not on it.

How could the former employee challenge the commission's decision?

The opinion said the city and the employee had a right to appeal to the proper circuit court. A notice of appeal had to be filed with the commission within 30 days of its decision.

Would a violation at the private meeting automatically undo the termination?

The AG said it did not appear that such a finding would affect the termination. He explained that the validity of the ultimate action depended instead on the final meeting, which the request described as an open, public trial.

Background and statutory framework

The request described a former police sergeant who appealed his firing. According to the facts supplied to the AG, the commission first voted publicly to reinstate him with back pay, met privately the next day with city officials and attorneys, then rescinded its earlier action and held a later trial at which it affirmed the dismissal while awarding two months of back pay.

The opinion discussed A.C.A. § 14-51-308 as the source of the disciplinary-trial and appeal procedures. It discussed A.C.A. § 25-19-106 for public attendance, special-meeting notice, stated purposes for executive sessions, and the permitted attendees at a personnel executive session.

Citations and references

Statutes:

• A.C.A. § 14-51-308(e)
• A.C.A. § 25-19-106(c)(2)

Case:

• Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968), cited for the rule that a city council could not consult its attorneys in executive session

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS

THE ATTORNEY GENERAL
DusTIn McDANIEL

Opinion No. 2013-040

July 12, 2013

The Honorable Chris Richey

State Representative

Post Office box 2356

West Helena, Arkansas 72390-0356

Dear Representative Richey:

You have requested my opinion on a dispute between a former police officer and the Helena-West Helena Civil Service Commission. You have provided certain background facts, which I will summarize as follows:

A former police sergeant, who was fired for an “off duty incident,” made a timely appeal to the Civil Service Commission, which had
[by statute] 15 days within which to hold a trial on whether the sergeant was properly disciplined. The Commission did not respond to the request for an appeal until two months after receiving it. The Commission then held “a public meeting to address the appeal.” The Commission unanimously voted to reinstate the sergeant and award him “back pay without holding a hearing/trial” because the Commissioners “felt they were in violation of their own policy by refusing to respond to the appeal letter within 15 days.”

The next day, however, the Commission “met privately with the Mayor, Chief of Police, the Chief’s Attorney, and the City Attorney,” to discuss rescinding “the reinstatement and holding a hearing/trial at a later date.” Within one week of this private meeting, the Commission “held a special call meeting to [rescind] all actions taken by the Commission and [it then] held a trial/hearing.” During this “trial/hearing,” the Commission “admitted to holding a private

323 CENTER STREET, SUITE 200 ¢ LittLe Rock, ARKANSAS 72201 TELEPHONE (501) 682-2007 » Fax (501) 682-8084 INTERNET WEsSITE * http://www.ag.state.ar.us/

The Honorable Chris Richey
State Representative
Opinion No. 2013-040

Page 2

meeting” and voted to dismiss the sergeant from the department but award him the two months’ back pay.

With this background in mind, you ask three questions:

1. Does the Civil Service Commission have the right to hold a private
   trial/hearing after a decision has already been made in a public meeting regarding the reinstatement of the appellant?

2. Was the Civil Service Commission in violation of the Arkansas
   Freedom of Information Act when holding the private meeting?

3. What are the remedies for the person seeking reinstatement?
   RESPONSE

I am unable to answer your first two questions in this case because doing so would require me to engage in fact-finding and possibly engage in the private practice of law, both of which I am unable to do. Instead, I can speak more generally about the purpose, conduct, and culmination of meetings of a Civil Service Commission under A.C.A. § 14-51-308. Regarding your second question, I will simply explain the general procedural requirements and leave to the appropriate fact-finder the question whether the procedures were followed in this particular case. The answer to Question 3 is found in A.C.A. § 14-51-308(e), which requires the aggrieved former employee to appeal the Commission’s decision to the appropriate Circuit Court within 30 days of the Commission’s decision.

DISCUSSION

Question 1: Does the Civil Service Commission have the right to hold a private triaV/hearing after a decision has already been made in a public meeting regarding the reinstatement of the appellant?

Because I am not a fact-finder when issuing opinions, and I am prohibited from the private practice of law, I am neither in a position to judge whether the Commission’s actions were proper nor how the Commission’s actions affect the termination or reinstatement of the former employee. I can however speak more generally about your question to the extent that it states a pure question of law

The Honorable Chris Richey
State Representative
Opinion No. 2013-040

Page 3

regarding the purpose, conduct, and culmination of meetings of a Civil Service Commission under A.C.A. § 14-51-308.

Section 14-51-308 establishes a clear procedure and timeline for the Commission’s review of certain disciplinary decisions. Any civil-service employee who is to be fired, reduced in rank or compensation, or suspended for at least three days, must be notified in writing of that disciplinary action at the time it occurs. That writing must also explain the reasons for the action.’ Employees who object to the discipline can then request that the Commission hold a “trial” “on the charges alleged as the grounds for” the disciplinary action.” During this trial, the Commission’s ultimate purpose under the statute seems to be to determine whether there is sufficient evidence to support the “charges alleged as the grounds” for the disciplinary action.

The statute also indicates the means for accomplishing this ultimate purpose or objective. The Commission must conduct a “trial.” Several factors throughout section 14-51-308 indicate that the legislature intends for this “trial” to be robust and akin to what we normally mean by the term “trial”:

e -308(c)(2) speaks of the employee’s right to present “witnesses”;

e -308(d)(1) speaks of the Chair of the Commission issuing rulings on “pleadings” and the “admissibility of evidence”;

e -308(e)(1)(B)(i), which speaks of preparing a “transcript of the proceedings before” the Commission, seems to contemplate arguments being elicited from opposing sides, witnesses being examined and cross-examined, and evidentiary rulings from the Commission; and

e -308(e)(1)(B)Gi) speaks of the Commission’s obligation to ensure that the “transcript” of and “evidence” elicited during the proceeding being “made available” to the party who is filing the appeal with the Circuit Court.

Like a standard trial before a court, the “trial” conducted by the Commission culminates in a final order. Subsection -308(d)(2) requires that the final decision—

| A.C.A, §14-51-308(a)(1) (Supp. 2011), as amended by Act 994 of 2013.

7 A.C.A. § 14-51-308(b).

The Honorable Chris Richey
State Representative
Opinion No. 2013-040

Page 4

on whether there is sufficient evidence to support the “charges alleged as the grounds” for the disciplinary action—“shall be by a majority vote of the members of the commission.”

Further, and also like a standard trial before a court, the parties to the proceeding before the Commission have appellate rights. Specifically, -308(e)(1)(A) gives both the city and the employee “[a] right of appeal ... from any decision of the commission to the circuit court within the jurisdiction of which the commission is situated.” If either party follows the statute’s procedure for perfecting the appeal, then the Commission must “prepare a written order containing its decision.” That decision is then reviewable by the circuit court.’

For reasons stated earlier, I am unable to apply the foregoing rules to the set of facts you convey. Instead, I must leave to the appropriate fact-finder the questions of (a) the degree to which the Helen-West Helena Civil Service Commission has diverted from the foregoing rules and (b) the effects of that diversion on the Commission, the City, and the former employee.

Question 2: Was the Civil Service Commission in violation of the Arkansas Freedom of Information Act when holding the private meeting?

Not having been apprised of all the surrounding facts nor opposing argument, I cannot be definitive about whether the Commission violated the FOIA. Instead, I can simply explain what procedures should have been followed, and leave to the appropriate fact-finder the question whether they were in fact followed.

If a governing body wants to convene for a special meeting to hold an executive session to discuss a personnel matter, the governing body must give a least two hours’ notice to certain parties and must allow the public to attend.* Further, when the governing body convenes for this special meeting, it must announce that it intends to go into executive session, and it must state the “specific” purpose for doing so,” The FOIA provides an exhaustive list of the permissible reasons for

7 A.C.A. § 14-51-308(e)(1)(B)(ii).

• A.C.A. § 25-19-106(a) (regarding attendance), -106(b) (regarding notice).

> A.C.A. § 25-19-106(c)(1).

The Honorable Chris Richey
State Representative
Opinion No. 2013-040

Page 5

going into a personnel-matters executive-session.° The FOIA also provides an exhaustive list of the persons who can attend an executive session. Attorneys are not permitted to attend executive sessions.’

The Commission is clearly a governing body, a meeting of which would qualify as a “meeting” under the FOIA. Therefore, it is plainly subject to the above procedures. I believe it is important to note, however, that even if it is determined that the particular private meeting in question was a FOIA violation, that determination would not appear to affect the former officer’s termination. The validity of the Commission’s ultimate action (which affirmed the officer’s termination), depends instead on the Commission’s final meeting, which you say was held as an open, public meeting and conducted as a “trial/hearing.”

Question 3: What are the remedies for the person seeking reinstatement?

The answer to this question is set out in A.C.A. § 14-51-308(e), which affords the city and the employee a “right of appeal ... from any decision of the commission to the circuit court within the jurisdiction of which the commission is situated.”® This appeal begins by filing a “notice of appeal” with the Commission within 30 days of its decision.” The circuit court must “review the commission’s decision on the record and may, in addition, hear testimony or allow the introduction of any further evidence upon the request of either the city or the employee.”"° The statute also gives a further “right of appeal” from the circuit court’s decision to the Arkansas Supreme Court. "

° Id.

’ See A.C.A. § 25-19-106(c)(2) (containing a comprehensive list of those persons allowed to attend an executive session; attorneys are not listed); Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968) (holding that city council could not consult its attorneys in an executive session).

8 A.C.A. § 14-51-308(e)(1)(A).

°A.C.A. § 14-51-308(e)(1)(B).

' AC.A. § 14-51-308(e)(1)(C).

ACA. § 14-51-308(e)(2).

The Honorable Chris Richey
State Representative
Opinion No. 2013-040

Page 6

Assistant Attorney General Ryan Owsley prepared this opinion, which I hereby approve.

Sincercly,

DZSTIN MCDANIEL
Attorney General

DM/RO:cyh