Several issues have come up during this legislative session regarding the transparency of public meetings. Last week House Bill 1610, a law which proposes to amend the law relating to public meetings under the Freedom of Information Act (FOIA), passed in the House.
The current open-meeting law under FOIA defines a public meeting as "all meetings, formal or informal, special or regular, of the governing bodies ... supported wholly or in part by public funds or expending public funds." (AR Code § 25-19-106). HB1610 would limit the scope of the definition of a public meeting to only "more than one-third (1/3) of the governing body." This has some potential disadvantages.
One disadvantage is that it may allow some governing bodies to avoid public scrutiny. In the policy brief "Political Transparency For Improved Resident Participation," published in 2022 by the Arkansas Center for Research in Economics (ACRE), Dr. Mavuto Kalulu and I explain that the legislative intent of the current public open meeting is to make government decision-making accessible to the public and encourage residents to participate in the decision-making process.
Meetings held by governmental bodies should be open to the public and easily accessible to all. As residents, we rely on our local governments to make decisions that affect our daily lives. From approving zoning changes to setting budget priorities to representing the education interests of the community, the decisions made in public meetings can have far-reaching consequences.
If a bill like HB1610 were to pass into law, the goal of having residents stay informed and participate in decisions that can have an effect on their communities would easily be defeated.
For example, suppose a governing body knows that a particular issue is controversial or unpopular with the public; less than one-third of that body can propose to meet off the record regarding the issue. One person from that group can also meet with another group of less than one-third and so on. This can give room for polling and limit the diversity of public opinion that the open-meeting law seeks to protect.
The key question here is not how many members of a public body are meeting. The key question here is what is being discussed. Even if two members of a public body are meeting and they discuss public business, this should be considered a public meeting. If three or four members meet but just to discuss their kids' soccer game, it is not a public meeting. Thus, the content of the discussion is what matters.
In recent months, some remarkable occurrences came to light at the local government level, where residents and public officials sought clarification on public meetings. Last month, there were disputes over allegations that the Conway School Board held a secret meeting before the actual meeting. In November 2022, it was reported that the Little Rock School District board held a secret meeting to discuss cybersecurity threats. Furthermore that same month, the Conway School District prevented a resident from attending a meeting that had been announced as a public meeting in the media. In another event, the 8th Circuit Court in December 2022 ruled that Washington County had contravened the open-meeting law.
These occurrences suggest that our local governments needed more clarity on laws regarding public meetings. Lawmakers do have a chance during this legislative session to clarify the desired features of transparency in public meetings, not further complicate it with bills like HB1610.
Here are a few key best-practice considerations for transparent public meetings:
1. Participation: All members of the public should have the opportunity to attend, speak and share their thoughts and concerns, even if two members of the public body are discussing an issue that could impact the future and direction of their community. Further, public meetings should set aside time for public comments, questions, and suggestions.
2. Accessibility: Open public meetings should be held in accessible and convenient locations for the public to attend.
3. Notice: The public should be given adequate notice of public meetings so they have time to plan to attend, using multiple means of communication, including government Web platforms and emails to community members.
4. Agenda: The agenda for the public meeting should be made available in advance so that the public knows what will be discussed.
5. Record-keeping: The proceedings of public meetings should be accurately recorded and made available to the public, including meeting minutes, audio or video recordings, or transcripts.
There are several benefits to open and transparent meetings. One, they promote accountability. When the public can observe and participate in the decision-making process, it becomes more difficult for government officials to act secretly or make decisions outside the public interest. Second, open and transparent public meetings help to build trust and confidence in government. When the public can see and understand the process by which decisions are made, they are more likely to feel that their voices are being heard and that the government is acting in their best interests.
Joyce O. Ajayi, Ph.D., is a policy analyst at the Arkansas Center for Research in Economics at the University of Central Arkansas in Conway and co-author of "Access Arkansas: County Web Transparency." The views expressed here are those of the author and do not necessarily reflect those of UCA.