Can an Arkansas city's planning commission close the doors and meet in private?

Plain-English summary

Representative Wooten asked whether a city's planning commission may go into executive session, the closed-door portion of an otherwise-public meeting allowed in narrow situations under the Arkansas Freedom of Information Act.

Then-Attorney General Leslie Rutledge said yes, with a tight set of conditions. Two pieces had to line up. First, the planning commission has to qualify as a "governing body" subject to the FOIA's open-meetings rule. The opinion treated this as settled, citing Op. Att'y Gen. 95-377 and the Watkins/Peltz-Steele/Steinbuch FOIA treatise's identification of municipal planning commissions as governing bodies because they have specific statutory authority. Second, the executive-session reason has to fall within one of the four narrow grounds the FOIA permits at § 25-19-106(c)(1), (5), (6), and (7).

The four grounds are:

1. Consideration of certain personnel matters (employment, appointment, promotion, demotion, disciplining, or resignation of any public officer or employee).
2. Preparation and administration of state licensing examinations.
3. Discussion of the security of public water systems and municipally owned utility systems.
4. Meetings of the General Assembly's Child Maltreatment Investigations Oversight Committee.

Of those, only the first is plausibly relevant to a planning commission. Planning commissions hire staff under Ark. Code Ann. § 14-56-412 (with the city's governing body first appropriating the funds under § 14-46-410). When the commission needs to discuss hiring, firing, discipline, or resignation of that staff, an executive session is on the table.

Two procedural rails apply: the commission must announce in public the "specific purpose" of the executive session before going in, and any action taken in executive session has no legal validity until the commission reconvenes in open meeting and votes publicly.

Currency note

This opinion was issued in 2021. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why is a planning commission a "governing body" when it's just an advisory group on zoning?
Because Arkansas planning commissions have specific statutory authority of their own, including the power to hire staff under § 14-56-412 and substantive powers over zoning and subdivision matters. The FOIA's open-meetings rules attach to bodies that have decision-making authority, not merely advisory ones. The AG's office concluded long ago (Op. Att'y Gen. 95-377) that planning commissions cross that threshold.

Can a planning commission close the door to discuss a sensitive land-use case?
No. Land-use matters do not fall within any of the four executive-session grounds. Discussions of pending applications, controversial rezonings, or developer negotiations have to happen in open session.

Can the commission close the door to get legal advice from the city attorney?
The Arkansas FOIA does not have a general "attorney-client" executive-session exception. The opinion did not address this directly, but the four grounds it lists are exhaustive (subject to § 25-19-106(a)'s narrow incorporation of other specific closed-meeting statutes). Most legal-advice discussions in Arkansas planning commissions therefore have to be public, even when uncomfortable.

What does "specific purpose" mean for the announcement requirement?
The commission must announce the actual purpose, not just say "executive session." For a personnel matter, that typically means naming the kind of action (hiring, firing, discipline, etc.) and identifying the position or, if appropriate, the employee. Vague announcements have caused FOIA-violation findings in past Arkansas cases.

What if the commission decides something in executive session?
Per § 25-19-106(c)(4), nothing decided in executive session has legal effect until the body reconvenes in public session and votes. So a commission that talks about firing a staffer in private must come back out and vote in the open before the firing takes effect.

Background and statutory framework

Arkansas's open-meetings rule sits at § 25-19-106. Subsection (a) requires that all meetings of governing bodies be open to the public, with a narrow door for other specific closed-meeting statutes (which are rare). Subsection (c) lists the executive-session exceptions: (c)(1) personnel, (c)(5) licensing exam administration, (c)(6) water/utility security, and (c)(7) the Child Maltreatment Investigations Oversight Committee.

The personnel-matter exception is itself narrow. Section 25-19-106(c)(1)(A) confines it to "the purpose of considering employment, appointment, promotion, demotion, disciplining, or resignation of any public officer or employee." General discussions about staffing levels, organizational structure, or workplace culture do not qualify; specific personnel actions about specific people do.

A planning commission's primary statutory authority comes from Title 14, Chapter 56. Section 14-56-412 lets the commission hire staff. Section 14-46-410 conditions that hiring on the city's governing body first appropriating funds. The fact that the planning commission can hire its own people is what makes the personnel-executive-session exception meaningful for it.

Citations

Statutes:

• Ark. Code Ann. § 25-19-106(a) (general open-meetings rule)
• Ark. Code Ann. § 25-19-106(c)(1)(A)-(B) (personnel executive sessions)
• Ark. Code Ann. § 25-19-106(c)(4) (no legal validity without public reconvening)
• Ark. Code Ann. § 25-19-106(c)(5)-(7) (other executive-session grounds)
• Ark. Code Ann. § 14-46-410 (city appropriations)
• Ark. Code Ann. § 14-56-412 (Repl. 1998) (planning commission staffing authority)

Treatise:

• John J. Watkins, Richard J. Peltz-Steele & Robert Steinbuch, THE ARKANSAS FREEDOM OF INFORMATION ACT 81-82 (Arkansas Law Press, 6th ed., 2017)

Prior AG opinions:

• Op. Att'y Gen. 95-377

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2020-050
January 28, 2021
The Honorable Jim Wooten
State Representative
P. O. Box 1330
Beebe, AR 72012-1330
Dear Representative Wooten:
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
This is in response to your request for an opinion on the following question:
[P]lease advise ... on whether a municipality's planning commission can enter into and meet in executive session?

RESPONSE
In my opinion and as a general matter, a planning commission may go into executive session, one of the exemptions to the open-meetings requirement of the Freedom of Information Act, if the reason for entering into executive session is among the permitted reasons under the FOIA. However, I cannot opine, without additional facts, whether a particular planning commission may go into executive session in a particular instance.

It is important to note here that your question is predicated on this office's long-standing position that municipal planning commissions are "governing bodies" subject to the FOIA's open-meetings provisions. See Op. Att'y Gen. 95-377 (opining that a planning commission is a governing body and must provide the required notice of its meetings). In addition, the leading commentators on the FOIA, relying on the established opinion of this office, cite municipal planning commission as an example of a body having specific statutory authority that therefore "should be considered a governing body" for purposes of section 25-19-106. John J. Watkins, Richard J. Peltz-Steele & Robert Steinbuch, THE ARKANSAS FREEDOM OF INFORMATION ACT 81-82 (Arkansas Law Press, 6th ed., 2017). Thus, I need not belabor that point in this opinion.

The FOIA permits "executive sessions," that is, meetings closed to the public, based on four limited categories of exemptions: 1) consideration of certain personnel matters, 2) preparation and administration of state licensing examinations, 3) discussion of the security of public water systems and municipally owned utility systems, or 4) meetings of the General Assembly's Child Maltreatment Investigations Oversight Committee. These are the only statutory grounds that justify executive sessions.

Among the many statutory powers and duties given to planning commissions is the power to hire staff. Thus, the first exemption listed above, the consideration of certain personnel matters, would appear to be the exemption that would be most applicable to a municipal planning commission.

To this end, the FOIA permits a governing body to go into executive session "only for the purpose of considering employment, appointment, promotion, demotion, disciplining, or resignation of any public officer or employee." Moreover, the governing body must announce in public the "specific purpose" of the closed-door meeting prior to the executive session. Finally, nothing the governing body elects to do in the executive session has any legal validity unless the governing body reconvenes in public and holds a public vote.

In sum, a municipal planning commission, as a governing body of the municipality with express statutory duties and powers, may meet in executive session as long as the reason for the private meeting is among the four limited reasons for an executive session, and provided that the commission complies with all other requirements regarding executive sessions under the FOIA.

Sincerely,
LESLIE RUTLEDGE
Attorney General