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Local government officials gathered Monday evening to learn about recent changes to Arkansas’s Freedom of Information Act, with Mountain Home attorney Roger Morgan emphasizing the continued restrictions on private communications between board members.
Speaking to members of the Mountain Home Public Schools’ Board of Education, Baxter County Quorum Court, and other local officials at the Baxter County Courthouse, Morgan outlined how Act 505 attempts to clarify what conversations are permissible between officials while maintaining strict prohibitions on deliberations outside public meetings.
“The fewer conversations you can have with your fellow court board and council meeting members about outside the public, the fewer conversations you can have the better,” Morgan told the gathering. “The best decision is to not discuss matters with council members, court members, or any board members. Just don’t discuss it.”
The new law, passed earlier this year, removes the term “informal” from the definition of public meetings and allows officials to share “background and non-decisional information” with each other. However, Morgan warned that the distinction between permitted information sharing and prohibited deliberation remains unclear.
“It’s up to you to determine what constitutes deliberation,” Morgan said, noting that asking colleagues how they plan to vote remains strictly forbidden. “The ultimate no-no is to ask how they’re going to vote.”
The attorney, who has served as Mountain Home’s city attorney since 1988, explained how FOIA laws often run counter to what people would normally expect.
“When I first started practicing law, Jimmy Johnson told me, he said, you know, lots of times, just think of what the answer ought to be. And that’s normally what the law is,” Morgan recalled. “Well, that’s not really true when you get to the Freedom of Information Act, because if you’re on a board or a council report, you would normally think that you ought to be able to be present and talk with your board members and talk about what decisions you’ve got to make. Well, so we’re going to see you can’t.”
Morgan shared personal anecdotes about learning FOIA requirements the hard way. He recalled attending an executive session as a new attorney in 1986, only to be told by his mentor Jimmy Johnson the next morning that he wasn’t supposed to be there.
“That’s the first thing I learned about FOI in ’86,” Morgan said, “through a mistake, and I think we’ve all learned things and sometimes that’s the best teacher.”
Morgan also highlighted that the polling prohibition now explicitly extends to mayors, county judges, and superintendents. “I think if you’re the mayor, you can’t ask a council member how they’re going to vote,” he said. “And that’s a change, somewhat.”
The training comes after years of FOIA violations in Baxter County, including a high-profile case involving the Mountain Home school board’s use of a secret group text for approximately eight years, according to former MHPS Superintendent Jake Long’s confession on the matter. Morgan acknowledged that many board members don’t realize when they’re violating the law.
“I’ll tell you a war story. I’ve served a couple of times and filled in for people on the Mountain Home School Board over the last 20 years,” Morgan said. “And if we were in an executive session and anybody ever asked a question about anything that wasn’t about hiring, firing, promotion or demotion, somebody would always say, ‘Hey, Bodenhamer’s out there and if we’re going to talk about that, he has the right to be in here.’ Most people realize that, and I think the only purpose for me to be here to discuss what a public meeting is and what is to be known is to just emphasize to you that it can get out of hand very quickly.”
Morgan was referring to Jim Bodenhamer, who currently serves on the Mountain Home City Council and was known during his journalism career for his expertise in FOIA law.
During the discussion, Justice of the Peace Lisa House, who was part of the school board during its FOIA violations, spoke about the difficulty of regaining credibility after making mistakes.
“It is really hard to get back your credibility when so many people assume the worst about you because you weren’t taught and made a mistake that you didn’t think was a mistake,” House said. “I had no idea we were in a group text when he was asking about, ‘are you going to go for the 2.3 mills or the 2.5 mills?’ Of course, I’m going to go for the lower millage because of the taxpayers.”
House was referring to text messages with Long, where he asked her and then Board President Dan Smakal about what millage paperwork to start working on before the school board held an official vote on the millage in 2023.
Morgan emphasized that officials who violate FOIA typically do so unknowingly. “In fairness to the school board in the last issue that rose will do, I don’t know that anyone ever gave them any kind of legal information regarding what they were doing,” he said. “As soon as it was discovered what was going on, it stopped.”
Morgan also warned officials that even legal meetings between board members could draw unwanted attention from the public.
“There’s no problem with you being out in public,” Morgan said. “You just got to be really careful, and you got to expect some scrutiny if you’re out there all the time eating lunch every day with [another board member]. It’s going to be hard to believe that y’all are talking about some business sometimes.”
He added that officials need to realize they’re “in the public eye” and “you’re going to get some criticism.”
The new law also strengthens enforcement mechanisms, giving courts the authority to invalidate decisions made through illegal private meetings. Morgan noted this puts “a little more teeth into it,” as previous violations often resulted in what he called “a slap on the wrist.”
Morgan traced the history of Arkansas’s FOIA laws back to 1967, when they were enacted following the tenure of Governor Orval Faubus to address concerns about backroom deals and closed-door meetings.
Despite the attempted clarifications in Act 505, Morgan predicted that court decisions will ultimately be needed to define key terms like “deliberation.”
“These definitions are really, really hard to follow,” he said. “It’s going to take some court cases to define.”
The attorney concluded by reiterating his primary advice: avoid conversations with fellow board members about public business whenever possible, warning that even casual encounters could lead to violations.
“If you run into somebody in Walmart and say, hey, you know, I don’t want to talk about anything on the agenda, but hey, how are you going to vote tomorrow night on the decision? You can’t do that,” Morgan said. “You just cannot do it.”
