Can a school board hold a closed personnel meeting after the state takes over its personnel powers?

Plain-English summary

Senator Keith Ingram asked whether the Helena-West Helena School District board could still meet in executive session after a state takeover. As background, he said the State Board of Education had classified the district as Level V-Intensive Support and transferred all personnel decision-making to the Commissioner of Education. The Attorney General treated that account as the senator's premise. She did not decide the board's actual remaining powers.

Arkansas FOIA makes school-board meetings public unless law specifically provides otherwise. Its personnel exemption permits a closed session to consider employment, appointment, promotion, demotion, disciplining, or resignation of a public officer or employee. The AG answered the legal question conditionally: if a governing body lacks authority to consider any of those matters, it cannot use the personnel exemption to close a meeting. The board's authority to consider the matter must be established first.

The AG expressly declined to decide whether the Helena-West Helena board met that condition. She also declined to answer whether this board could hold an executive session in any other circumstances. Footnote 3 cites prior AG opinions applying the same authority requirement to a county election board and a municipal water commission.

What this means for you

If you serve on a board affected by a state transfer of powers

Before closing a meeting for a personnel discussion, identify both the personnel matter and the board's authority to consider it. If the board lacks authority to consider any matter listed in the exemption, this opinion says it cannot use that exemption. Check the governing transfer order and other authority for the particular board; this opinion did not determine the Helena-West Helena board's powers.

If you advise a school board

Separate the legal rule from the facts of the transfer. The AG's rule requires authority to consider the personnel matter. Her opinion does not say which functions this board retained, and it does not decide whether a different legal ground could permit a closed meeting. Resolve those questions from the applicable orders and law before relying on an executive session.

If you attend or report on board meetings

A board's Level V status alone does not answer whether a personnel executive session is lawful. Ask what personnel matter the board proposes to consider and what authority it retains to consider that matter. This opinion gives a conditional rule, not a finding that the Helena-West Helena board violated FOIA.

Common questions

Q: Did the AG rule that the Helena-West Helena board could no longer hold personnel executive sessions?
A: No. She said a board without authority to consider any listed personnel matter cannot invoke that exemption, then declined to determine this board's actual authority.

Q: Which personnel matters can support this FOIA exemption?
A: The opinion quotes the statute's list: employment, appointment, promotion, demotion, disciplining, or resignation of a public officer or employee. The board must have authority to consider the matter at issue.

Q: Does transferring personnel decisions to the state necessarily remove the local board's ability to consider personnel matters?
A: The AG did not decide that. Senator Ingram described a transfer of all personnel decision-making, but the AG said determining the precise scope of this board's powers was beyond her role in this opinion.

Q: Could this board close a meeting for another reason?
A: The AG declined to answer that question because it depended on the surrounding facts. This opinion addresses the personnel exemption's authority requirement.

Q: Did the AG rely on earlier opinions?
A: Yes. Footnote 3 cites Opinions 2008-115 and 97-178, both conditioning a personnel executive session on the body's authority over the matter being considered.

Background and statutory framework

Ark. Code Ann. § 25-19-106(a), quoted in footnote 1, makes school-district governing-body meetings public except as specifically provided by law. Footnote 2 identifies the provision permitting an executive session for the listed personnel matters. The AG linked that exemption to the body's authority to consider the subject of the proposed closed session.

The opinion states: “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.” It immediately adds that determining this particular board's powers was beyond the AG's purview. Its rule therefore applies only after the board's actual authority is established.

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

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

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:

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?
2. Are there any circumstances, while the HWHSD remains in Level V, in which the Board of Directors can go into executive session?
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?

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

1 Ark. Code Ann. § 25-19-106(a) (Repl. 2021) ("Except as otherwise specifically provided by law, all meetings, formal or informal, special or regular, of the governing bodies of all municipalities, counties, townships, and school districts ... shall be public meetings.").

2 Id. at § 25-19-106(c)(1).

3 See, e.g., Ops. Att'y Gen. 2008-115 (opining that a county board of election commissioners may meet in an executive session to consider disciplining a poll worker "[assuming] that the discipline contemplated is within the power of the election commissioners and that the executive session itself stays within the boundaries set forth by the applicable law."); 97-178 (opining that a municipal water commission could hold a closed meeting pursuant to 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.").