Utility is to replay paring of CEO list

A committee selecting final candidates for the Little Rock Wastewater Utility’s top official shouldn’t have allowed a search-firm consultant to deliver her presentation to it privately Wednesday, the city attorney and the mayor both said Thursday.

Also Thursday, Sanitary Sewer Committee Chairman Marilyn Perryman announced that in light of objections to the way Wednesday’s meeting took place, she will reconvene the commission’s Executive Search Sub-Committee and redo the meeting.

“While I believe the search committee made every attempt to adhere to the public process and applicable law, out of an abundance of caution we will reconvene the committee meeting as soon as practical to repeat the review of the applicants,” Perryman said in an emailed statement.

Perryman would not talk by phone Thursday about the propriety of Wednesday’s meeting. She also did not reply to follow-up emails asking whether the search-firm consultant will now deliver her presentation in public or when the redo meeting will happen.

The Executive Search Sub-Committee voted Wednesday to go into executive session to review 60 chief executive officer applicants and hear from Heidi Voorhees, president of the firm hired to conduct a nationwide CEO search and assist in the selection process.

Wastewater attorney Amber Bagley advised search committee members that they did not have to allow the public into Wednesday’s meeting.

The Arkansas Democrat-Gazette objected to Voorhees’ presence in the closed meeting. Arkansas Code Annotated 25-19-106 Section (c) states that only the head of the agency, an employee being discussed, his immediate supervisor and an applicant being interviewed for the top position can meet with members of the governing body in closed session.

“I don’t think it was appropriate,” Little Rock Mayor Mark Stodola said Thursday of Voorhees’ admittance into the meeting. “I think the law is pretty clear. … Obviously the committee was being given legal advice that I believe was erroneous, clearly. Hopefully they won’t do that again. That’s just not the law.”

When questioned Wednesday, Bagley initially asserted that governing bodies could appoint an individual or firm to replace the head of an agency for the purpose of executive meetings. But after not being able to provide a state statute that authorized such an appointment, she then said Voorhees was an ex-officio member of the search committee, a status that would allow Voorhees to participate in the executive session.

Stodola, a lawyer who has been an attorney for the city and public agencies in the past, said most lawyers he knows would agree with his opinion that the law was violated by Voorhees’ presence in the meeting. He said he became aware of the matter after reading an article in Thursday’s Democrat-Gazette.

“This is not rocket science. There’s pretty clear case law on this issue. I read the newspaper article, and it sounded like strained [legal] logic to get to that conclusion. Clearly the search committee firm that is hired under contract is never going to be considered to be a committee member of anything, and there was no documentation of that,” Stodola said.

A list of search committee members provided to the newspaper before Wednesday’s meeting didn’t include Voorhees’ name, and her name was not mentioned when the Sanitary Sewer Committee appointed search committee members in October. Bagley contended Wednesday that Voorhees’ inclusion had always been “the intent.”

Bagley did not return several phone messages seeking comment Thursday, but she did send the newspaper an email saying she had nothing to add to Perryman’s statement.

In addition to the concerns already raised, Little Rock City Attorney Tom Carpenter said Thursday that he questioned the legality of an out-of-state resident serving on a city committee if it were true that Voorhees is a search committee member. Voorhees lives in and operates her company in Illinois.

“I think that’s a problem,” Carpenter said. “If a city does not have the authority to appoint somebody from Tennessee to a commission, then I would think that the [city-created] commission would not have the authority to appoint somebody that lived in another state to a committee. They couldn’t have greater authority than the creating entity did.”

He cited Arkansas Code Annotated 14-47-134 that states that only “qualified electors” of the city shall be appointed to any board, authority or commission.

Most sewer committee members didn’t return phone messages or emails Thursday seeking comment about Wednesday’s closed meeting. Pete Hornibrook and Ward 5 City Director Lance Hines - who serves as a liaison between the Sanitary Sewer Committee and the city Board of Directors - are the only sewer committee members who are also on the search committee.

Hornibrook said after Wednesday’s meeting that he had no comment regarding why the panel had taken steps to ensure that the search firm’s presentation was given in private.

Hines said by phone Thursday that the search committee relied on advice from legal counsel and did not intend to circumvent the Arkansas Freedom of Information Act. He mentioned that after Voorhees gave her presentation to the committee, she was asked by Hornibrook to leave so the committee could discuss the applicants privately. When asked why Voorhees was asked to leave if they contended she was a member of the committee, Hines said, “That’s a good question.”

Sewer committee member Ken Griffey, who is not on the subcommittee, said Thursday that the search committee needed to move forward in a more transparent fashion and that he’s confident it will. Both he and sewer committee member Jean Block said they supported the subcommittee redoing Wednesday’s meeting.

It was unclear Thursday night whether the consultant will deliver the information on the applicants in public when the subcommittee reconvenes.

The search committee is looking for a replacement for longtime CEO Reggie Corbitt, who was fired earlier this year. Corbitt made $187,875 annually, plus benefits.

The ad seeking his replacement puts the CEO’s pay at approximately $180,000.

Although Wednesday was the first time the newspaper was notified of the search committee’s meeting, it is not the first time the committee has met, according to emails obtained by the newspaper under the Freedom of Information Act. The emails exchanged between the search committee members and interim CEO John Jarratt revealed that the committee has been meeting since last fall. During that time, it interviewed search firm applicants and made the decision to hire Voorhees.

A 2002 Arkansas attorney general’s opinion states that meetings are in violation of the Freedom of Information Act when the media are not notified of the meetings, but that actions taken at the meetings are not automatically null and void because of the lack of notification.

The nonbinding opinion says that the state Supreme Court has held that citizens can petition a court to rule that actions taken in meetings in violation of the law be deemed invalid after that citizen has exhausted administrative remedies.

Bagley did not respond Thursday to questions about the earlier meetings. Jarratt said he was under the impression that previous search committee meetings weren’t public and said Thursday that utility attorneys “are still telling me it shouldn’t have been a public meeting.”

A 1994 attorney general opinion states that committees in charge of screening applicants for the top position of an agency are subject to the open-meeting requirements under the Freedom of Information Act and that “proper notice of meetings must be given.”

Hines said Thursday that the committee wasn’t attempting to hide the meetings and noted that references to the subcommittee’s actions were made during public Sanitary Sewer Committee meetings. He also said he assumed that the wastewater staff would send out meeting notifications if it was proper, as it does for sewer committee meetings.

Comments by Hines and Jarratt indicated that the search committee was aware that proper media notification hadn’t been given for at least one of its meetings. Both men said that at the first meeting of the search committee, two sewer committee members - Block and Hornibrook - showed up, and Jarratt noted that if two members of a governing body were present to discuss business, then the media had to be notified under the Freedom of Information Act.

Block then excused herself from the meeting, Hornibrook stayed and the search committee continued to meet, Jarratt and Hines said.

“I don’t think we had any of the staff attorneys there at that time,” Hines said. “In that case, we were operating under the impression that the press didn’t have to be notified. We’ve made references to those meetings. I know there wasn’t an attempt to hide them.”