If a city mayor wrote a termination memo for a public works director but later rescinded the termination, can the memo still be released under the Arkansas FOIA?

Plain-English summary

The City of Cave Springs received a FOIA request for a memo that the City's former mayor had written regarding the termination of the manager of the City's Public Works Department. The City's records custodian decided to release the memo. The subject of the memo objected on a specific ground: he argued there was no final administrative resolution because the termination was rescinded and the termination process abandoned. He further argued that because the termination was rescinded, he was not required to seek a city council override under Ark. Code Ann. § 14-42-110.

Attorney General Leslie Rutledge concluded that the memo was properly classified as an employee-evaluation record, since termination letters that contain the reasons for the suspension or termination are evaluation records. But she could not resolve the underlying factual dispute about whether the termination was actually effective. Her conclusion: if the termination was effective, the memo was releasable under FOIA, with all four parts of the Thomas v. Hall test very likely satisfied. If the termination was rescinded before it became effective, the level-of-discipline element would be unmet and the memo could not be released as an evaluation record. The custodian, not the AG, had to resolve the question of whether the termination was effective.

Currency note

This opinion was issued in 2019. 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.

Historical context

The procedural pattern (as of 2019)

In Arkansas first-class cities, the mayor has appointment and removal power over department heads, but a city council can override the mayor's decisions in some circumstances under Ark. Code Ann. § 14-42-110. Here, the former mayor wrote a termination memo, and someone within the city later rescinded the termination. The Public Works manager seems to have remained or returned to the position. The new question was whether the termination memo, sitting in the file, was now releasable.

How the AG analyzed it

Classification: evaluation record. A termination memo that contains the reasons for the termination is an evaluation record under Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, and consistent prior AG opinions (e.g., Op. Att'y Gen. 2012-077). The AG concluded the memo at issue was properly classified.

Level-of-discipline threshold. Section 25-19-105(c)(1) requires "final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate the employee." If the termination was rescinded before becoming effective, there was no termination at all, much less a final administrative resolution. The level-of-discipline prong fails.

The fact dispute the AG cannot resolve. Was the termination effective? The subject said the termination was rescinded before it took effect. The custodian apparently disagreed. The AG could not resolve this kind of dispute about a separation's validity. The AG cited Op. Att'y Gen. 2012-077 (and a contemporaneous companion, 2019-024) for the rule.

What "effective" means in this context

The AG did not provide a single definition, but the analysis points to the surrounding facts: did the manager actually leave the position? Was a successor appointed? Did the city council confirm or override under § 14-42-110? Was payroll terminated? If yes to most, the termination was likely effective. If no, the termination memo never matured into a discipline action that could trigger evaluation-record release.

Why this matters

Cave Springs is a small city in northwest Arkansas. The Public Works manager position is locally significant. A "termination memo" sitting in a file with no termination behind it is essentially a draft personnel action that never matured. The AG's treatment respects the statutory threshold: evaluation records are not released unless the underlying discipline actually happened.

Common questions

Q: If a termination is rescinded, can the termination memo still be released?
A: Per the AG, no, not as an employee-evaluation record. The level-of-discipline prong of the four-part test requires actual suspension or termination. A rescinded termination that never took effect does not satisfy this prong.

Q: What if the termination took effect first and was then rescinded after the fact?
A: That is a different scenario. If the termination was effective and there was a "final administrative resolution," the four-part test could potentially be met before the rescission. Whether a later rescission undoes the effective termination for FOIA purposes is fact-specific.

Q: Could the memo be released as a personnel record instead?
A: The personnel-records exception (§ 25-19-105(b)(12)) uses the Young v. Rice balancing test, not the four-part Thomas test. A termination memo is typically classified as an evaluation record, but if the custodian classified it as a personnel record, the balancing test would govern. The AG focused on the evaluation-records analysis here.

Q: Who decides if a termination was effective?
A: The custodian, in the first instance. A court, ultimately. The AG cannot resolve disputed facts about whether a separation was a termination, a resignation, a rescission, or something else.

Q: What does Ark. Code Ann. § 14-42-110 say?
A: It allows a city council in a first-class city to override certain mayoral decisions about department heads. The subject here argued he did not need to invoke § 14-42-110 because the termination was rescinded before he would have needed to seek an override.

Background and statutory framework

This opinion applies the Thomas v. Hall four-part test to evaluation records and the level-of-discipline threshold from Ark. Code Ann. § 25-19-105(c)(1). The framework is identical to companion 2019 FOIA opinions (Ops. Att'y Gen. 2019-028, 2019-030, 2019-031).

The distinct contribution of 2019-022 is the application to a rescinded-termination fact pattern: termination memos are evaluation records, but if the underlying termination was rescinded before becoming effective, the threshold for release is unmet. The AG cannot resolve disputes about whether a termination was effective.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (definition of "public records")
• Ark. Code Ann. § 25-19-105(b)(12) (personnel-records exception)
• Ark. Code Ann. § 25-19-105(c)(1) (employee-evaluation exception)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG opinion procedure)
• Ark. Code Ann. § 14-42-110 (city council override of mayoral decisions in first-class cities)

Cases:

• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, Ark. Supreme Court, definition of evaluation records

Related AG opinions:

• Op. Att'y Gen. 2012-077 (termination letters as evaluation records; AG cannot resolve termination disputes)
• Op. Att'y Gen. 2019-024 (level-of-discipline threshold not met)
• Op. Att'y Gen. 2019-028, 2019-030, 2019-031 (companion FOIA personnel/evaluation opinions)

Source

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

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Opinion No. 2019-022
March 15, 2019

R. Justin Eichmann, City Attorney
Harrington Miller Kieklak Eichmann Brown
4710 South Thompson, Suite 102
Springdale, AR 72764

Dear Mr. Eichmann:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the custodian's attorney, is based on Ark. Code Ann. § 25-19-105(c)(3)(B)(i).

Your correspondence indicates that the City of Cave Springs has received a request under the FOIA for a memo authored by the City's former mayor regarding the termination of the manager of the City's Public Works Department. You state that the City has determined that this record, which you attached for my review, is available for inspection under the FOIA. The subject of the record objects to the release, arguing that there was no final administrative resolution of the termination because the termination was rescinded and the termination process abandoned. He further argues that because the termination was rescinded, he was not required to seek an override of his termination by the City Council as provided by Ark. Code Ann. § 14-42-110.

You have requested, on the subject's behalf, my opinion on whether the City's decision to release the record is consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Although you have not stated as much, I take it from your request for my opinion that the custodian has decided that the record at issue is an employee-evaluation record. I further gather that the custodian has determined that the subject of the record was terminated, so as to meet the FOIA's threshold requirement (discussed further below) for the release of an evaluation record.

It is my opinion, based on the face of the record and the limited information before me, that the record is properly classified as an employee-evaluation record. I cannot, however, resolve the apparent dispute regarding the validity and/or effectiveness of the termination decision. In my opinion, the custodian's decision to release the record is consistent with the FOIA if the employee's termination was effective. However, the effectiveness of the termination involves issues of fact and law that are outside the scope of my review under Ark. Code Ann. § 25-19-105(c)(3)(B)(i).

[Standard FOIA framework, with focus on the employee-evaluation exception under § 25-19-105(c)(1) and the four-part test from Thomas v. Hall. See companion Ops. Att'y Gen. 2019-028, 2019-030, 2019-031 for the full framework.]

III. Application.

As reflected by the above test, disciplinary records that were created by (or at the behest of) the employer and that detail the employee's performance or lack of performance on the job are properly classified as employee-evaluation records. With regard, specifically, to letters of termination, this office has consistently opined that such letters constitute employee evaluations if they contain the reasons for the suspension or termination. E.g. Op. Att'y Gen. 2012-077 (and opinions cited therein). It is, therefore, my opinion, based on the face of the record and the limited information before me, that the custodian has properly classified the record at issue in this case as an employee evaluation.

As also reflected by the above test, suspension or termination is a threshold requirement for the release of an employee-evaluation record. It appears there is a dispute in this instance as to whether this level-of-discipline element has been met. I cannot resolve disputes regarding the validity and/or effectiveness of a termination decision because that involves issues of fact and law that are outside the scope of my review under section § 25-19-105(c)(3)(B)(i). See Op. Att'y Gen. 2012-077. If there was a final termination, then I believe the record in question is subject to disclosure, as it undoubtedly would have formed the basis for the employee's termination. And there would be, in all likelihood, a compelling public interest in disclosure. In sum, if the custodian has correctly determined that the employee's termination was effective, then it is my opinion that the decision to release the record is consistent with the FOIA.

Sincerely,

Leslie Rutledge
Attorney General