Meetings of state legislatures are usually conducted in the open, sometimes even streamed live to constituents’ computers, but many states also allow for closed sessions to conduct business out of the public’s view.
Last week, the Arkansas Senate met in a closed session to discuss the Medicaid private-option program. The meeting was private so senators “would feel willing to ask questions that they might not have asked for fear of not looking smart,” Sen. Larry Teague, D-Nashville, told the Arkansas Democrat-Gazette.
Most states allow their Houses and Senates to meet in closed sessions under certain circumstances, according to the National Conference of State Legislatures.
The private option refers to a state program in which federal Medicaid money is used to pay the private health-insurance premiums of about 100,000 Arkansans whose incomes are up to 138 percent of the poverty level - $15,860 for an individual or $32,500 for a family of four.
Senate President Pro Tempore Michael Lamoureux, R-Russellville, described last week’s private meeting as mostly organizational and said he used the occasion to inform lawmakers about when the key votes would be taken on the private option and what would happen afterward.
“I wanted people to be aware of what would happen if we did not get the votes,” Lamoureux said.
The closed gathering, which lasted more than 10 minutes, took place amid Capitol buzz over whether to continue funding the fledgling private-option program.
Open-meetings experts said the Senate’s meeting was legal.
Article 5, Section 13 of the Arkansas Constitution states that “the sessions of each house shall be open … unless the business is such as ought to be kept secret.”
Arkansas is one of 32 states that allow floor sessions to be closed if lawmakers vote to close them, according to a report by the National Conference of State Legislatures.
Many states require approval of a simple majority of a chamber’s members, or members present, to close a session.
But 24 states have at least one chamber - House or Senate - whose floor sessions can’t be closed.
Brenda Erickson, a senior research analyst at the National Conference of State Legislatures, said the requirements for closed or open sessions vary by state.
“It’s going to depend upon each state’s language in the constitution, open-meetings laws or chamber rules,” Erickson said.
She said some states may restrict the use of closed sessions to discussions on personnel matters, security or corporate proprietary matters. Some states also allow standing or interim committee meetings to be closed, she said.
People who oppose such private sessions could challenge them in court, but the challenge is unlikely to bear fruit, Erickson said. Courts are reluctant to touch the issue. In at least one case in Alaska, a court refused to intervene in an open-meetings dispute, citing the separation of powers between branches of government.
“Unless it’s a constitutional requirement for open meetings, they [courts] may not get into it,” Erickson said.
Debate over the private option has led to some compromises this session in a bid to gain wider support for its passage. Amendments have been approved for three agency appropriation bills - one each for the Insurance Department, Health Department and Department of Human Services’ Medical Services Division.
Many lawmakers have huddled privately with a handful of colleagues, but the Senate meeting was unusual in that it included the whole body.
Lamoureux said it’s not unprecedented. The Senate met privately “a couple of times” during the previous legislative session, mostly for organizational purposes, he said.
Tom Larimer, the executive director of the Arkansas Press Association, said the Legislature has always had the authority to meet in private, even though the public may not have been aware of it happening.
“The Legislature passed the Freedom of Information Act, and they had the ability to exclude themselves from it, and they did,” Larimer said.
He said the private option has been a “high-profile topic” that has attracted a lot of interest from across the state, and it appeared that some senators were unclear about aspects of it. The Senate’s private meeting was an opportunity for the senators to get more information about it, he said.
“I think that’s a good thing as far as the public is concerned,” Larimer said.
Meanwhile, the House has not met as a whole to privately discuss the private option. Its members frequently chat about it in small groups in the House chamber and in rooms off the House floor that are closed to the public, however.
House Speaker Davy Carter, R-Cabot, told reporters last week that it’s time to vote on the private option and move on to other matters. “We’ve negotiated with everybody who’s wanted to negotiate,” he said.
The House will take up the now-amended appropriation bills soon, he said, because the time for negotiation is over.
“That ship has sailed,” Carter said.
Arkansas, Pages 13 on 02/16/2014