Mountain Home School District Superintendent Jake Long has confessed to operating a secret group chat between himself and members of the Mountain Home School Board following the Observer’s discovery of the group chat during an investigation into text message communications uncovered by a local resident’s watch dog group.
The group chat, which was created by Long eight years ago, appears to have allowed the school board to discuss policy behind the scenes in preparation for school board meetings and political campaigns such as the school district’s upcoming millage increase election.
Long and other members of the board have admitted to regularly deleting text messages sent in the group to each other, often immediately after being sent and read, thereby circumventing the ability for the public to obtain those communications through the Arkansas Freedom of Information Act (FOIA).
Dan Smakal, President of the Mountain Home School Board, admitted to participating in the group and said he felt that he and the school board had done nothing wrong.
The Observer is in possession of some of these text messages, spanning the length of April.
“The thing I want to say, is that number one, we want to follow the FOIA law,” said Long after he was notified that the Observer had obtained proof of the text message group. “If there’s any practice that we are participating in that breaks [the law], then we’re most definitely going to stop it. We’re going to fix that.”
Opening an investigation
The Observer’s investigation into secret meetings held by the Mountain Home Public School Board began after Melissa Klinger of MH Watchdogs posted screen shots of text messages obtained by a FOIA request between Long and Smakal, and Long and School Board Vice President Lisa House in a substack article.
Both text discussions dealt with whether the school board should move forward with a 2.25 or 2.75 mil increase for its next election to address issues with Mountain Home’s ailing high school.
The messages, which show Long revealing the results of potential straw polling from members of the school board to Smakal and House, appear to be violations of Arkansas FOIA law at worst, a gray area in the law at best.
Under state law, it is illegal for a superintendent to poll members of a school board in the hopes of knowing the board’s direction before an official vote is cast.
“…individual discussions in this instance serve as a vehicle for arriving at a board policy prior to the public meeting. I believe this is contrary to the spirit, if not the letter of the FOIA. Although the Arkansas Supreme Court has not addressed this precise issue, we know from its decision in Rehab HospitalServices Corp. v. Delta-Hills Health Systems Agency, Inc.,285 Ark. 397, 687 S.W.2d 840 (1985), that a ‘telephone poll’ can violate the FOIA if the proper safeguards are not present,” wrote Attorney General Mark Pryor on April 14, 2000 (Ops.Ark.Atty.Gen. Apr. 14, 2000).
Pryor goes on to state, “I believe by analogy that a series of individual, private discussions between the superintendent and members of the school board, if held for the purpose of polling the members and thereby arriving at a board policy, violates the FOIA.”
In this instance, Long polled to determine what millage paperwork to prepare for a future school board meeting. After looking at state law, the Observer is unable to determine whether polling over paperwork preparation crossed the line of a full FOIA violation. An opinion from the Arkansas State Attorney General or a state judge would be needed to clarify the issue.
The school board had also previously discussed what millage rate to approve during a public Jan. 5 work session that was attended by the Observer.
In addition to uncovering the texts, Klinger and another resident, Mark Howson, who runs the Baxter County Citizens Watch, also approached Baxter County Prosecuting Attorney David Ethredge over the text exchanges. After their discussion, Ethredge asked how they would like to proceed. Both individuals declined to prosecute.
Ethredge is claimed to be in the process of writing a cease and desist letter to the school district following a discussion with Roger Morgan, the district’s attorney. Long confirmed that Ethredge had visited Morgan over the text exchanges. A letter has not been delivered at this time. Ethredge did not return a request for comment.
Arkansas FOIA Law
Under the Arkansas Freedom of Information Act, any record that is “required by law to be kept or [is] otherwise kept and that constitutes a record of the performance or lack of performance of official functions” is a public record. Further, “all records maintained in public offices or by public employees within the scope of their employment are presumed to be public records.” The FOIA covers both records created by an agency and those received from third parties. The physical form of the record is unimportant, as the FOIA applies to “writings, recorded sounds, films, tapes, electronic or computer-based information, or data compilations in any medium.”
In addition, a meeting is defined as “any meeting, formal or informal, regular or special, of a governing body including sub-bodies. A quorum of the governing body need not be present for the meeting to be subject to the FOIA. If two members meet informally to discuss past or pending business, that meeting may be subject to the FOIA.”
The FOIA exempts four kinds of meetings from the requirement that the public be allowed to attend. A closed meeting, called an “executive session,” may be held “for the purpose of considering employment, appointment, promotion, demotion, disciplining, or resignation of any public officer or employee.” In contrast, an executive session to consider general personnel matters, an across the-board pay increase, or the overall performance of employees as a group is not permissible.
Under the law a person who “negligently violates” the FOIA is guilty of a Class C misdemeanor.
According to previous attorney general opinions in the state of Arkansas, a governing body must hold a public meeting even if its only purpose is to gather information.
In the case of emails or electronic records surrounding school boards and other governing bodies, the FOIA’s open-meetings provisions would apply to email exchanges. A violation may occur through a sequential or circular series of email communications or under circumstances suggesting that the governing body was deliberating in secret. Nevertheless, the email messages likely would be subject to disclosure as a “public record.”
In 2020, Pulaski County Circuit Judge Chris Piazza ruled that text messages constitute public records following a FOIA request over text messages between former Department of Information Systems Director Mark Myers and a vendor’s representative that raised questions about three state projects with that vendor, totaling $8.2 million.
Myers sued to block the release of the messages but was overruled by the judge.
Under the law, personal messages are allowed to be exempt or deleted from official FOIA requests.
My answer remains the same!
After opening an investigation, the Observer began to have sit down discussions with Long and members of the school board.
Out of the school board, only Bob Chester and Jason Schmeski agreed to visit in person. Lisa House and Neal Pendergrass answered questions submitted through email. Barbara Horton and Bill Wehmeyer did not respond to requests from the Observer for comment.
Smakal did not respond to requests for comment until the Observer asked Long to push Smakal to comment on the group chat.
The overall consensus between members of the school board and Long throughout various meetings and emails is that the board did not believe that it was in violation of the law and that communication with Long generally occurred in legal one-on-one sessions prior to meeting in an official meeting. Only Neal Pendergrass appeared to not be involved in the group chat.
One school board member agreed to allow the Observer to look at their phone following questions surrounding texting other members of the board, leading to the revelation of the group chat.
After a final discussion with Long yesterday morning, the following email was sent to each member of the school board.
“I wanted to make you aware that board GROUP discussion via text, email, or other methods of communication is a violation of FOIA law. One way communication sent by me to all 7 board members is an acceptable method of keeping you informed. Even a 1-way reply to only me is acceptable. ‘Reply all’ or responding in a group text is NEVER acceptable. We will have a FOIA refresher at our next board meeting. I anticipate a media report on our violation and perceived violations tomorrow. Thank you for your help.”
In addition to the Observer’s interviews and questions, several FOIA requests were sent into the district. While most of those FOIA requests were fulfilled, those involving text messages were denied. The only text related FOIA approved involved the messages already released to Klinger.
“We provided everything that we do have,” said Long in a meeting on April 19.
In the first round of text messages in the secret group chat between Long and the school board, discussion shifted from a joke about tearing down a high school to the LEARNS Act that was working its way through the state legislature.
The discussion, which featured participation between Long, House and Smakal, focused on policy surrounding implementing the bill into the school district.
“So, if we get $20 million from taxpayer dollars, $30 million from per student government money, and budget is $35 million, what do we do with the extra,” said Lisa House.
Long responded by saying, “After ppc meeting yesterday, I recommend freeze current schedules, fulfill the implementation of Learns bill – everyone makes 50k plus 2,000 for those over 50. Spend a year studying it.”
Smakal inputted with, “My answer remains the same!”
In a text message following Smakal’s response, Bob Chester entered the chat.
“I think the best part of reading these texts is that I don’t have to have anyone’s name except Jake’s in my phone, so I get to guess who is saying what. Please, don’t tell me who is who cuz it will take the mystery out of it. Unless of course, you are the Reverend Mother trolling me here, also, in which case identify yourself immediately.”
Reverend Mother is a reference to Reverend Heather Duggins, who released research on alleged inappropriate books within the district’s libraries.
In an April 7 exchange in the chat group, members of the school board joked about the local news featuring articles about an individual with the last name of Rose being declared a fugitive at the same time that Dustin Rose was named the new assistant superintendent for the district.
That conversation pivoted with Chester taking shots at the Ozark Patriots and Klinger’s MH Watchdog group before ultimately landing on A+ For Education, the legislative question committee in support of the millage increase, and signs around the city.
“I hope everyone on the board at least has one in front of their house and/or business,” Chester said.
The topics of signs continued into a discussion about Wes Wood’s building across the street from the Baxter Bulletin, school board candidate Scott Booth and questions regarding the permission to hang signs on the building.
“Same building. Booth will not publicly support the millage. I guess I have to wonder who owns the building and does A+ have permission to put that banner up on the front of their building,” Chester said.
House responded by saying she would call Wood.
“I just talked to Wes Wood and he said that he and Booth had a conversation and he imposed that he was for the millage and I told Wes Wood he was all about and he said he may try to ask him what the deal is and why he wanted to put a sign on the backside of a promoted for millage.”
The conversation ended with Chester stating, “Right now, I can confidently say all 7 duly elected school board members and 2 of the candidates running for school board support the millage. I would love to be able to say all three candidates would commit, but I think the noncommittal candidate would lose his core support if that was the case.”
There were no other texts involving policy or politics in the remaining text messages that the Observer was able to obtain. It is assumed that other conversations have been deleted or withheld by other members of the school board.
Early voting for Mountain Home Public School District’s millage election begins May 2. This continues to be a developing story.
