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Ignorance of the law no excuse for Bryant council action
Mike Dougherty
We've all heard the expression, "Ignorance of the law is no excuse."
Those of us who have been caught in that situation (turning left off of Main Street onto Markham when I was 16, in my case) may not like it, but that premise usually stands. And, it probably should.
But what do we do when public officials know that they are either breaking the law or coming near crossing that line?
Residents of the city of Bryant could very well be facing that problem, after a City Council meeting March 13 that come close to causing observers to question their vision.
Let's review …
As some of you may have noticed, Bryant's firefighters and their chief, Randy Cox, have come close to crossing swords again in recent weeks.
Cox fired two battalion chiefs in February for not properly filling out paperwork in the instance of trading shifts. Firefighters, most of whom are members of the newly formed Local 4604 of the International Association of Fire Fighters, immediately cried "foul," claiming that the chief's real reason was because battalion chiefs Chris Spruell and Brian Watson had joined the union. Some union members threatened to go to the City Council with allegations of wrongdoing by Cox.
A last-minute solution apparently was reached under which Spruell and Watson were reinstated, so no cross words were uttered at the council meeting.
Apparently, however, that was only the beginning, as Cox took medical leave for two weeks and, when that leave expired, he requested and received indefinite medical leave. When he had not returned after the first leave expired, firefighters began expressing concern to city officials that the department was without leadership.
Threats of public accusations against Cox again were made, with the airing of the dirty laundry scheduled for the City Council meeting to be held March 13. Plans for a no-confidence vote against Cox were scheduled for a union meeting that was to start 30 minutes before the council meeting.
Meanwhile, Mayor Larry Mitchell acknowledged after a day of stonewalling that Human Resources Director Shayne King was conducting an internal investigation into the fire department.
Depending upon your source, firefighters either were warned by an alderman on the day of the meeting to get their act together and drop the threat nonsense or they were trying to accuse the chief of improper activities in which some union members themselves had engaged.
Rumors flew throughout the day. One had the council planning to take care of the problem by deciding in a Finance- Personnel Committee meeting scheduled an hour before the council meeting. When members of the press received word of that plan, "insiders" contended, the plan by the council would be to prevent firefighters from speaking at the council meeting, if they weren't seated at the meeting when it started at 7 p.m. sharp.
Public comments were heard at the beginning of the meeting, as is customary, and the council conducted its regular business for what appeared to be a short agenda. However, after Alderman Robby Young questioned city employees about training practices, the council went into executive session.
Whatever the plans were before the meeting, the council did allow IAFF Local 4606 president D a n i eWegerand treasurer Gary Seibel to address the councisoon after they arrived at the meeting about 8:30 p.m. Seibel read a resolution passed "overwhelmingly" by union members in which they expressed their lack of confidence in Cox and requested that the mayor and the council replace Cox as chief.
Mitchell then began questioning Weger and Seibel about how the city was being protected if all the firefighters were at a union meeting. They pointed out firefighters are always on call, even if they are at a different location while they are on duty, noting that often all firefighters are in one location when training sessions are held.
Assistant Fire Chief Brandon Futch also answered questions from the council about the firefighters' whereabouts during the union's "no confidence" meeting. He noted that he knew that some were away from their posts, that he assumed they had gone to the meeting and that he had given permission for them to do so.
King, under questioning by the council, said she had questioned 12 people in the investigation into the fire department.
The council then voted to go into another executive session. After the second one, they returned and Alderman Ken Green asked City Attorney Nga Starzewski several questions about public records and whether the City Council was allowed access to an employee's personnel records. They then asked if council members could be named custodians of personnel records. Starzewski noted that she didn't know of a specific part of the law that prevented such action, but that she would have to seek an opinion from Arkansas Attorney General Dustin McDaniel to be sure.
After questioning King about the security of the records of the investigation, Alderman Rick Meyer and Green voiced the opinion that such records would be more secure under lock and key in the mayor's office. When King implored the council to at least keep the personnel records in a fire-safe apparatus, as they are when they are in her office, aldermen first suggested a safe in the fire department or police department. When told that the fire department had no such safe, they decided that they should move the records to the evidence locker at the police department. First they made plans to call an officer on duty to come get the records after they secured them, but decided that a detective would be needed to conduct such a job.
They then passed a resolution directing the attorney to draft an ordinance naming King, herself, the mayor and all aldermen as custodian of the public records. That motion passed 6-2 on a voice vote, with Alderman Danny Steele voting against it and the vote of Alderman Larry Smart, absent because of surgery earlier in the week, automatically recorded as a "no" vote.
A motion was made to order King to gather her records of the investigation and the personnel records of Cox and the 12 employees questioned in that investigation and bring them to the meeting room where alderman would meet in executive session to secure such records. Mitchell called for a voice vote of those in favor of the motion and then declared it passed. Steele had to call a point of order to remind Mitchell that he had no called for opposing votes. When fi- nally convinced that he had not, Mitchell did so and Steele again was the only alderman present to vote "no," thus making the official tally 6-2.
The council then went into executive session again. Eventually, a member of the Bryant Police Department's criminal investigation unit showed up in the council chambers to retrieve the records. A few minutes later, he and King, the human resources director, left with the records, apparently "sealed" by the aldermen.
Then, after all that, the council comes out of executive session, the announcement is made that there was no finding, meaning no personnel action had been taken, because they had decided to wait on an attorney general's opinion (to determine if they could be named custodian of the records). The meeting then was adjourned It was about 11:45 p.m.
The audacity of a group of men who have so little regard for the law that they take action in spite of being told that its legality is unknown amazes me.
Yes, they "backed off" and decided to "wait" on an opinion from the attorney general at the end of the night, but so what? They already had crossed that line by commandeering the personnel records of the individuals involved.
They can tell us all they want that no one looked at the files while they were in executive session, but who really knows? It's not like we're going to trust them after such a brazen disregard for the law.
The almost-comical part of the night was that they stopped in the middle of their plan to "secure" the personnel files to say, "wait, we'd better not include the medical records" in what they ordered the human resources director to turn over to them.
So, let's see … they observe Health Insurance Portability and Accountability Act, better known as HIPAA laws, but not the Freedom of Information Act.
Somehow, when we're talking about actions taken by people elected to represent the public, that seems a bit cock-eyed to me.
Yes, they should be concerned with HIPAA, but they should consider the FOIA as a tool that protects the public, not something only for the media's entertainment, as some public officials seem to believe.
I suppose that they may tell themselves that it's OK to try to get around FOIA, as long as they are acting on behalf of the public. But the fact is, if you rationalize that to do anything in secret that shouldn't be ... such as trying to get a good look at personnel records of employees who may be acting as a whistleblower, you are kidding yourself about your motives.
Mike Dougherty is the Editor of the Saline County Voice. His column appears weekly. You may contact Mike at 315-6397 or by e-mail at mdougherty@ salinecountyvoice.com.
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