When the state takes over a Level V school district's personnel authority, can the local school board still go into closed executive session?
Plain-English summary
On July 13, 2022, the Arkansas State Board of Education classified the Helena-West Helena School District (HWHSD) as Level V-Intensive Support and transferred all personnel decision-making from the local board of directors to the Arkansas Commissioner of Education. The local board kept its title but lost its core authority over hiring, firing, promotion, and demotion.
State Senator Keith Ingram asked whether the local board can still go into executive session. The Arkansas Freedom of Information Act allows closed sessions only for "considering employment, appointment, promotion, demotion, disciplining, or resignation of any public officer or employee" (A.C.A. § 25-19-106(c)(1)). If the board cannot lawfully consider those matters because the State has taken the authority away, can it still close the meeting under that exemption?
The AG's answer to question 1 was a clean rule of law: if a governing body lacks authority to consider any of the personnel matters that may properly be considered in executive session, then it cannot legally hold a closed meeting under the FOIA's personnel exemption. The exemption is tied to the substantive authority. No authority, no executive session under that ground.
The AG cited two prior opinions for the principle: Op. Att'y Gen. 2008-115 (county board of election commissioners may close a meeting to consider disciplining a poll worker only "[assuming] that the discipline contemplated is within the power of the election commissioners") and Op. Att'y Gen. 97-178 (municipal water commission could close a meeting under the personnel exemption "assuming that the subject matter of the executive session falls within that authorized under the FOIA, and that the commission in fact has authority with respect to the particular personnel matter under consideration").
For questions 2 and 3 (are there OTHER circumstances under which the HWHSD board can close a meeting, and what subject matter), the AG declined to opine. Those questions depend on the specific scope of authority the State Board of Education left the local board, which is a factual question outside the AG's role.
The opinion does not address other FOIA executive-session grounds beyond the personnel exemption. Arkansas FOIA has limited closed-session grounds; if the personnel exemption is unavailable, the board would need a different statutory basis to close a meeting.
What this means for you
School board members in Level V-Intensive Support districts
If the State Board of Education has transferred your personnel authority to the Commissioner, you cannot use the personnel exemption to close a meeting on hiring, firing, promotion, demotion, discipline, or resignation. Topics that might historically have been discussed in closed session (a teacher's discipline, a principal's appointment) must be discussed in open session if discussed at all, and your discussion is largely advisory because the decision authority sits at the state level.
Two practical implications:
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Coordinate communications with the Commissioner's office. If personnel matters need to be addressed at the state level, work through the proper channel rather than holding a quasi-decisional meeting yourselves.
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Document carefully what you can and cannot do. The exact scope of remaining local authority varies and may include some peripheral functions. A school-district attorney should map the remaining authorities so the board knows what it can address (and how) without violating the FOIA.
School district attorneys advising boards under Level V
Build a written authority map for your board. Walk through the State Board's transfer order and identify each function: which decisions still rest with the local board, which have been transferred. For any topic involving personnel, default to open session unless the local board still has substantive authority over that specific matter.
Be conservative. The FOIA penalty for unauthorized closed sessions can include open-meeting violations and exposes the district to litigation.
State Board of Education and Commissioner staff
Your transfer orders create FOIA consequences for local boards. When you transfer personnel authority, articulate clearly what remains. Ambiguity creates compliance risk for the local board. The local board may need to invoke residual authority for some narrow functions, but the line should be clearly drawn.
Parents and community members in takeover districts
Open meetings should be more visible to you, not less, when state takeovers occur. The personnel exemption is no longer available to close meetings on transferred topics. If the local board attempts to close a meeting on personnel grounds, you can challenge under the FOIA.
Education journalists covering takeover districts
This opinion strengthens your access to local-board meetings in Level V districts. Watch for unauthorized closed sessions and ask the board to articulate their authority for closing. The AG's framework gives you a clean test: does the board still have substantive authority over the matter being discussed? If no, the closed session is improper.
County, city, and other governing bodies considering executive sessions
The principle generalizes. Any governing body considering invoking the personnel exemption should first verify that it actually has authority over the personnel matter at issue. Boards whose authority has been narrowed by statute, ordinance, or interlocal agreement face the same analysis as the HWHSD board.
Common questions
What does Level V-Intensive Support classification do?
The Arkansas State Board of Education can classify a struggling school district as Level V-Intensive Support and transfer specific authorities (often personnel and major operational decisions) to the Arkansas Commissioner of Education. The local board may continue to exist as a body but with reduced or removed substantive authority.
Are there other FOIA exemptions available to closed sessions?
Arkansas FOIA's closed-session grounds are limited and primarily found in A.C.A. § 25-19-106. The personnel exemption is the most commonly invoked. Other narrow grounds may apply in specific contexts (e.g., legal advice from an attorney, specific statutory exceptions). Each exemption has its own scope.
What about discussions involving students or confidential information?
Some matters may be governed by separate statutes (FERPA at the federal level, Arkansas-specific student-records statutes). Those statutes can authorize closed handling of specific records but do not necessarily authorize closed-session discussion in violation of the open-meetings rule. Boards should pair record protection with open-session discussion that does not reveal confidential identifiers.
Can the board enter executive session for legal-advice purposes?
Arkansas FOIA does not have a general "attorney consultation" closed-session exemption. The personnel exemption may cover specific HR-related legal advice when the board has the underlying personnel authority. Without authority, even legal-advice framing may not justify closure.
What if the local board only has authority over a specific subset of personnel matters?
The AG's rule applies item by item. If the board still has authority to consider, say, contracting with substitute teachers but not regular hires, it can close meetings only on the matters within its authority. Mixing topics in one closed session risks invalidating the closure.
Does this opinion bind a court?
AG opinions are persuasive only. The principle (authority required to invoke exemption) is well-grounded in prior AG opinions and FOIA's text. A court is likely to follow it, but a binding holding would require a specific FOIA case.
Can the board be sued for an improper closed session?
Yes. Arkansas FOIA provides civil and criminal remedies for violations. Citizens can seek mandamus to disclose actions taken in improperly closed sessions and can challenge actions taken in violation of the open-meetings rule.
Background and statutory framework
Statutory framework:
- A.C.A. § 25-19-106(a): all meetings of governing bodies of municipalities, counties, townships, and school districts are public meetings unless specifically authorized otherwise.
- A.C.A. § 25-19-106(c)(1): authorizes executive session for "considering employment, appointment, promotion, demotion, disciplining, or resignation of any public officer or employee."
Prior AG opinions cited:
- Op. Att'y Gen. 2008-115: county board of election commissioners may close meeting to consider disciplining a poll worker only if discipline is within their power.
- Op. Att'y Gen. 97-178: municipal water commission may close meeting under personnel exemption only if it has authority with respect to the personnel matter.
Underlying context:
- Arkansas State Board of Education classified HWHSD as Level V-Intensive Support on July 13, 2022, and transferred personnel authority to the Commissioner of Education.
The opinion does not directly cite a statute for the Level V framework, but the framework is established under Arkansas's school accountability statutes administered by the State Board of Education. School district attorneys should review the State Board's specific transfer order for their district.
Citations
- A.C.A. § 25-19-106(a) (open meetings rule)
- A.C.A. § 25-19-106(c)(1) (personnel-matter executive session)
- Ark. Att'y Gen. Op. 2008-115 (county election commissioners)
- Ark. Att'y Gen. Op. 97-178 (municipal water commission)
Source
Original opinion text
Opinion No. 2022-029
November 21, 2022
The Honorable Keith M. Ingram
State Senator
P.O. Box 369
West Memphis, AR 72301
Dear Senator Ingram:
This is in response to your request for my opinion concerning the authority of a public school district board of directors to meet in executive session under the Arkansas Freedom of Information Act ("FOIA"). As background for your questions, you provide the following:
On July 13, 2022, the Arkansas State Board of Education classified the Helena-West Helena School District (HWHSD) as Level V-Intensive Support. The State Board of Education also removed all personnel authority from the HWHSD Board of Directors and transferred all decision-making to the Arkansas Commissioner of Education.
Against this background, you ask:
- Since the HWHSD Board of Directors no longer has any authority for personnel matters, they cannot consider hiring, firing, promotion, or demotion. Since they lack this authority, does that remove their legal authority to go into executive session where discussions of those matters had traditionally taken place?
- Are there any circumstances, while the HWHSD remains in Level V, in which the Board of Directors can go into executive session?
- If the answer to question 2 is yes, what are those circumstances and what is the subject matter in those circumstances that the Board of Directors could discuss out of public view?
RESPONSE
With regard to your first question, if a governing body lacks authority to consider any of the personnel matters that may properly be considered in executive session, then it cannot legally hold a closed meeting pursuant to the FOIA's personnel exemption. But as I do not act as a factfinder in issuing opinions, I cannot address any factual questions that your background statements might invite. I consequently cannot opine on your remaining questions, as they depend largely upon the specific surrounding facts.
DISCUSSION
Question 1: Since the HWHSD Board of Directors no longer has any authority for personnel matters, they cannot consider hiring, firing, promotion, or demotion. Since they lack this authority, does that remove their legal authority to go into executive session where discussions of those matters had traditionally taken place?
The board of directors of a public school district is a governing body and is subject to the open-meetings provision of the FOIA. The FOIA nevertheless allows governing bodies to meet in executive session (i.e., in closed meetings) for the limited purpose of "considering employment, appointment, promotion, demotion, disciplining, or resignation of any public officer or employee."
A public school district board of directors therefore must have authority to consider one of the grounds upon which an executive session may be held, i.e., "employment, appointment, promotion, demotion, disciplining, or resignation" of an officer or employee, before it may hold a closed meeting pursuant to the FOIA's personnel exemption. That means that where a school board lacks the authority to consider any of the personnel matters listed in the personnel exemption, it cannot invoke that FOIA exemption.
However, determining the precise scope of a particular governing body's powers is beyond my purview in issuing opinions. I am, therefore, unable to opine whether such is the case with regard to the particular school board in question.
Question 2: Are there any circumstances, while the HWHSD remains in Level V, in which the Board of Directors can go into executive session?
Question 3: If the answer to question 2 is yes, what are those circumstances and what is the subject matter in those circumstances that the Board of Directors could discuss out of public view?
I must respectfully decline to address these questions, which seek my opinion on factual matters that are beyond the scope of my authority to address in a formal opinion.
Sincerely,
LESLIE RUTLEDGE
Attorney General