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Arkansas’ prison oversight board voted Thursday to suspend Secretary of Corrections Joe Profiri, who promptly responded that he plans to ignore the directive and continue working.
“I’m reporting to my office right now. And I’ll be here tomorrow,” Profiri said in a brief interview after a special meeting of the Board of Corrections.
The board, in turn, plans to file a lawsuit against several new state laws that weakened its authority and laid the groundwork for an ongoing dispute between the board, Profiri and Gov. Sarah Huckabee Sanders.
Chairman Benny Magness said the seven-member body would ask a judge for a temporary restraining order enjoining Profiri from working while the constitutional dispute is litigated.
“We feel like we’re in a legal state that we just should consider appealing to a higher authority with the impasse we’re having,” Magness said.
That impasse stems from a pair of new state laws enacted during this year’s legislative session that the board argues are unconstitutional. The acts moved the state’s secretary of corrections and director of the Division of Correction from under the board. The secretary now serves at the pleasure of the governor instead of the board, and the director of correction serves at the pleasure of the secretary.
The change has fed the escalation of a dispute over whether the Department of Corrections should add several hundred temporary beds to existing prison space. Profiri has said he plans to move forward with adding the more than 600 temporary beds despite the board’s disapproval.
At the heart of the dispute is a fundamental question: Who has authority over Arkansas prisons?
Is it the board, which in 1942 was cemented into the Arkansas Constitution when the people ratified Amendment 33?
Or, like most state entities, is the power vested in the governor and her appointees?
“This is not about adding beds,” said Corrections Board member William “Dubs” Byers. “The board will work tirelessly with the administration to ease county jail backup. We know it’s a problem.
“This is a constitutional issue, and it needs to be clarified.”
Amendment 33 was the first of a series of amendments passed by the people of Arkansas in the mid-20th century to protect certain government boards and agencies from political influence and decentralize the executive branch’s power.
In addition to the Board of Corrections, the amendments gave additional independence to governing boards of Arkansas’ colleges and universities as well as the Arkansas Game and Fish Commission and Highway Commission.
The Arkansas Supreme Court has not ruled squarely on a conflict between the executive branch and a constitutional board under Amendment 33.
The closest it came was during a dispute in 1995 between the University of Central Arkansas Board of Trustees and the State Board of Education, which had rejected the school’s request to start doctoral programs for physical therapy and school psychology.
The state board appealed a lower court’s ruling that found it had violated Amendment 33 and infringed upon power held exclusively by the UCA board. But the Board of Education dropped its appeal before the Supreme Court could rule, fearing a ruling in favor of UCA could establish binding precedent related to Amendment 33.
Magness said he expected a lawsuit to be filed Thursday by outside counsel Abtin Mehdizadegan, who the board voted to hire last week.
Arkansas Attorney General Tim Griffin questioned the board’s authority to hire an outside attorney without his permission, and he also accused the board in a letter on Monday of violating Arkansas’ open meetings law when it entered executive session during a meeting last week.
“We are reviewing the board’s actions but remain troubled that they continue to violate the law regarding compliance with the Freedom of Information Act and the unauthorized hiring of an outside counsel,” Griffin said in a statement.
The board again entered executive session for about 20 minutes on Thursday to discuss Profiri’s employment and other personnel matters.
It has maintained that it has the authority to hire Mehdizadegan under Arkansas Code Annotated § 25-16-711, which gives constitutional officers the authority to hire outside counsel when they and the attorney general “disagree on the interpretation of any constitutional provision, act, rule, or regulation which affects the duties of that constitutional officer.”