Arkansas Board of Corrections Chairman Benny Magness told lawmakers Thursday that he took responsibility for "any error" in how the board contracted with outside legal counsel a week before filing a lawsuit against the governor and a former Department of Corrections secretary.
"I won't do it this way again," Magness said during a Joint Performance Review Committee meeting at the Capitol, later adding, "If it falls on anybody, it falls on me."
Abtin Mehdizadegan, a partner in the Little Rock-based law firm of Hall Booth Smith P.C. that was hired in December to represent the board, also testified for roughly two hours Thursday, facing several questions about changes he made to procurement documents.
Speaking to reporters during a recess, Senate President Pro Tempore Bart Hester said he believed the main reason the Board of Corrections was called before the Joint Performance Review committee on Thursday was that "there doesn't appear to be any sort of a process that the Board of Corrections is using" and that it appeared unilateral decision-making was being done by only one or two members of the seven-member board.
Thursday's testimony comes after board secretary William "Dubs" Byers presented a report to the Board of Corrections on March 26 investigating the procurement process for the body's hiring of Mehdizadegan. In the report, Byers said he found no evidence of fraud or illegal conduct but noted that during its March meeting the board voted to establish new protocols to avoid future incidents involving contracts.
Arkansas Legislative Council had requested during a March 15 meeting that the Legislative Joint Auditing Committee also conduct a review. The council also had requested the Joint Performance Review Committee examine the board's business.
Several lawmakers on Thursday criticized how quickly the board moved to hire Mehdizadegan on Dec. 8 and the lack of communication between board members and the public beforehand. Asked by Rep. Jimmy Gazaway, R-Paragould, whether there were any discussions about hiring the attorney prior to the Dec. 8 meeting, Byers said he didn't believe so.
"I just have to say, that's just a complete lack of transparency, a complete lack of following any type of proper protocol to, I think, hire an attorney, and it's just shocking to me, quite honestly," Gazaway said Thursday.
However, Magness said later during testimony that he had instructed board member Lee Watson to look into hiring an attorney at some point between Nov. 17 and Dec. 8. Their goal when the conversation began was to get legal advice on what would happen if they fired then-Department of Corrections Secretary Joe Profiri, Magness said. The board ultimately voted to suspend Profiri on Dec. 14 and voted to terminate him Jan. 10.
Sen. Jonathan Dismang, R-Beebe, said Thursday the full board and the public were notified that Magness had asked Watson to research outside attorneys only three minutes before the board voted to hire Mehdizadegan at the Dec. 8 meeting. The board had came out of an executive session in which they discussed Profiri's performance and almost immediately voted to hire an outside counsel and shortly afterward voted to hire Mehdizadegan.
Watson testified Thursday he met Mehdizadegan "sometime in the middle of last year" after asking several other attorneys for recommendations about who could handle the board's situation. While he told Mehdizadegan he didn't have the authority to hire him, because that would take a vote of the board, Watson told lawmakers he did not speak to the attorney about being hired by the board at the time.
Watson said the hiring was done on an emergency basis that didn't allow time for the board to solicit applications from other attorneys.
When questioned about why Mehdizadegan billed the body Dec. 8 for work drafting a complaint ahead of a planned lawsuit, Magness suggested the board's reasons for seeking to hire an attorney had changed by then.
Lawmakers also questioned changes that were made to procurement documents and expressed concern over what appeared to be a lack of oversight by the board regarding those modifications.
On March 12 Magness withdrew the board's contract with Mehdizadegan from consideration by a legislative committee. The move came after Magness was unable to explain language that had been added to procurement documents. At the time, he promised to authorize a board investigation into the added language and submit the documents again later.
The Department of Corrections had asked the Legislative Council's Review Subcommittee on March 12 to ratify the board's contract with Mehdizadegan after state procurement director Ed Armstrong said ratification of the contract is required to make the contract a lawfully binding obligation on the state, because it appeared that public procurement processes were not followed.
The report presented by Byers in late March states Mehdizadegan "supplied revisions to those documents consistent with the legal arguments currently pending, and he expected that any concern regarding those revisions would have been addressed by Chairman Magness, Mr. Brown or his staff, or the [Office of State Procurement]. I found no evidence of fraud or legal misconduct in this matter."
Mehdizadegan has said he submitted the documents March 6 to the state Department of Corrections with "quick revisions" and made reasonable changes to the contract and that no one objected to the changes.
According to Byers, the changes included Mehdizadegan adding the phrase "if applicable" to four areas of the documents.
Mehdizadegan's contract started Dec. 8 and will continue until Dec. 7, 2024, with a total project amount of $207,000 under its terms. The board had incurred $139,639 in legal fees with the legal counsel in December, January and February, Chad Brown, the department's chief financial officer, testified before the subcommittee on March 12.
Mehdizadegan said Thursday he believed about 337 hours had been billed as of March.
Lawmakers questioned Mehdizadegan at length during testimony Thursday about changes he made to procurement documents.
Gazaway noted that included among the edits Mehdizadegan made to the documents were changes in a section that states in red text the provision is non-negotiable. He also accused the attorney of making the changes solely for the purpose of ensuring he gets paid.
Mehdizadegan said the changes were made to prevent the attorney general's office from making a claim that would harm the board's argument that it has standing to sue, and that he was "attempting to maintain the status quo."
Mehdizadegan said he had gone as far as spending his own money to get ethics opinions "from the highest level."
Sen. Kim Hammer, R-Benton, asked if Mehdizadegan was aware there was a possibility he may not get paid for his work for the Board of Corrections.
"There's always some potential that a bill goes unpaid, and I hope that is not the case here," Mehdizadegan replied. "A lot of people who have worked really hard would suffer because of that."
Mehdizadegan said every minute represented in his billing was accounted for and appropriate.
Rep. Tara Shephard, D-Little Rock, said she was "troubled" by Thursday's testimony. Shephard, an auditor for the American Correctional Association, asked Byers if there are clearly established standards for how the Board of Corrections governs itself when entering contracts. Byers replied that he didn't know.
"So it appears some of the inconsistencies that we've heard today is because there aren't clearly established guidelines for how the board governs itself?" Shephard asked.
"There may not be," Byers replied.
Rep. Jim Dotson, R-Bentonville, said he keeps coming up with more questions of "how we got to this place."
"I mean, this is just a royal mess," Dotson said. "This is definitely not the way that procedures should be handled."
Mehdizadegan was hired by the Board of Corrections less than a week before he filed a lawsuit on the board's behalf challenging two laws passed in last year's legislative session that the board contends weaken its authority in violation of Amendment 33 to the state constitution.
Arkansas Attorney General Tim Griffin later filed suit against the board, saying it violated the Arkansas Freedom of Information Act when it went into executive session to hire Mehdizadegan.
Griffin has appealed rulings in the lawsuits to the Arkansas Supreme Court.
One appeal is related to a Jan. 19 ruling by Pulaski County Circuit Judge Patricia James that, in part, levied a preliminary injunction against two laws that the board's suit contends violate the state constitution. Gov. Sarah Huckabee Sanders is among defendants in that case.
The other concerns a Jan. 22 order from Pulaski County Circuit Judge Tim Fox's dismissal of Griffin's suit against the board.
Information for this article was contributed by Michael R. Wickline and Grant Lancaster of the Arkansas Democrat-Gazette.