Can a mayor sit in on an Arkansas Civil Service Commission executive session about the fire chief?

Plain-English summary

In 1997, the Springdale City Council passed Ordinance No. 2775 under Ark. Code Ann. § 14-42-110, transferring authority to appoint and remove the police chief and fire chief to the Springdale Civil Service Commission. The ordinance preserved the mayor's power to take disciplinary action (short of termination) or to suspend the chiefs. The fire chief's job description specifies that the fire chief reports directly to the mayor.

Senator Lance Eads asked whether the mayor, who appears to be the fire chief's immediate supervisor under that arrangement, can attend an executive session of the Civil Service Commission about fire chief personnel matters. Attorney General Leslie Rutledge answered yes.

The Arkansas FOIA generally requires public meetings to be open, but Ark. Code Ann. § 25-19-106(c)(1)(A) carves out executive sessions for personnel matters: "considering employment, appointment, promotion, demotion, disciplining, or resignation of any public officer or employee." Section 25-19-106(c)(2) lists who, beyond the commission members themselves, may attend at the Commission's request: (1) the top administrator in the public agency, (2) the immediate supervisor of the employee, (3) the employee, and (4) any person being interviewed for the top administrative position.

If the mayor is the fire chief's immediate supervisor (a fact question the AG accepted based on the City's determination and the supporting documents), then the mayor falls into category (2) and can attend at the Commission's request, so long as the matter discussed is one of the authorized personnel topics under § 25-19-106(c)(1)(A).

Currency note

This opinion was issued in December 2021. The FOIA's executive-session provisions in § 25-19-106 may have been amended. Verify the current text and any superseding AG opinions before relying on this analysis to structure a session.

What this means for you

If you serve on a city civil service commission

Based on this opinion, you can invite the mayor into an executive session about a department head where the mayor is that head's immediate supervisor. Confirm the supervisor relationship before the session (job descriptions, ordinance citations, prior practice). Document who you invited and why, and limit the session to the personnel topics listed in § 25-19-106(c)(1)(A).

If you are a mayor reviewing a chief's discipline

You can attend a Commission executive session at the Commission's invitation. You cannot show up unilaterally. The statute carefully limits who may be in the room to preserve confidentiality. A mayor self-inviting risks a FOIA violation.

If you are a fire chief or police chief who is the subject of the session

The same statute that lets the mayor in lets you in. You are listed in § 25-19-106(c)(2) as one of the four categories who may attend at the Commission's request.

If you are a city attorney advising a Civil Service Commission

The opinion turns on a fact: who is the immediate supervisor. Make that determination before the session, not during it. Misclassifying a department head's reporting line can put the executive session itself in jeopardy.

If you are a journalist or transparency advocate

This opinion narrows, slightly, the people you can complain are improperly in the room. The mayor is allowed if the immediate-supervisor relationship is real. The argument shifts to whether the relationship is real, and whether the topic is one of the authorized executive-session subjects.

Common questions

Q: What does the FOIA's executive session provision allow?
A: Per Ark. Code Ann. § 25-19-106(c)(1)(A), governing bodies may meet in executive session "for the purpose of considering employment, appointment, promotion, demotion, disciplining, or resignation of any public officer or employee." Other topics are not authorized for executive session under that subsection.

Q: Who else can attend an executive session?
A: Section 25-19-106(c)(2)(A) lists four categories at the governing body's request: the top administrator, the immediate supervisor, the employee, and a candidate being interviewed for the top administrative position.

Q: How is "immediate supervisor" determined?
A: The opinion notes that the AG is not a fact-finder. The City of Springdale had determined the mayor was the fire chief's immediate supervisor based on the city ordinance, the job description, and operational practice. The AG accepted that determination and proceeded with the legal analysis.

Q: What if the mayor is invited but the topic strays?
A: Per the opinion, the executive session must be limited to authorized topics: employment, appointment, promotion, demotion, disciplining, or resignation. If the discussion strays into general policy or budgeting, the session loses its FOIA shield and the meeting must be conducted in open session.

Q: Does the same rule apply to police chiefs?
A: The opinion addressed the fire chief specifically, but the same statutory framework applies to any department head whose immediate supervisor is the mayor. A parallel analysis should reach the same result.

Background and statutory framework

Arkansas's Civil Service Commission scheme under Ark. Code Ann. § 14-42-110 lets cities transfer appointment and removal authority over the police and fire chiefs to a Civil Service Commission. Many cities split authority: the Commission appoints and removes; the mayor handles non-termination discipline and operational supervision. That structure can leave the question of "immediate supervisor" ambiguous unless the ordinance and job description settle it.

The FOIA executive-session statute in § 25-19-106 strikes a balance. Personnel matters are sensitive, and candor in the discussion is important. So executive sessions are permitted for the listed topics. But to prevent abuse, the statute lists exactly who may be in the room. The "immediate supervisor" category exists because that person typically has the most operational knowledge of the employee's performance, and the governing body benefits from that input when considering personnel action.

The AG's opinion confirms the natural reading: where the mayor is, in fact, the immediate supervisor (under the city's own ordinance and job description), the FOIA puts the mayor in the right category to attend at the Commission's invitation.

Citations and references

Statutes:

• Ark. Code Ann. § 14-42-110 (transferring chief appointment authority to Civil Service Commission)
• Ark. Code Ann. § 25-19-106(a) (open-meetings requirement)
• Ark. Code Ann. § 25-19-106(c)(1)(A) (executive session for personnel matters)
• Ark. Code Ann. § 25-19-106(c)(2) (categories of attendees beyond the governing body)
• Ark. Code Ann. § 25-19-106(c)(2)(A) (immediate supervisor as authorized attendee)

Prior AG opinions:

• Op. Att'y Gen. 2012-147
• Op. Att'y Gen. 88-058
• Op. Att'y Gen. 2020-046
• Op. Att'y Gen. 2019-026
• Op. Att'y Gen. 2019-023
• Op. Att'y Gen. 2017-123
• Op. Att'y Gen. 2015-005

Source

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

Original opinion text

Opinion No. 2021-073
December 7, 2021

The Honorable Lance Eads
State Senator
Post Office Box 8343
Springdale, AR 72766

Dear Senator Eads:

This is in response to your request for an opinion from this office, wherein you state the following:

In 1997, the Springdale City Council passed Ordinance No. 2775, pursuant to Ark. Code Ann. § 14-42-110, which granted the authority to appoint and remove the police chief and fire chief to the Springdale Civil Service Commission. I have enclosed a copy of Ordinance No. 2775. However, Section 2 of this ordinance reserves to the mayor the power to take disciplinary action against (except for termination) or to suspend the police chief and fire chief. In addition, the City of Springdale job description for the fire chief specifically provides that the fire chief reports directly to the mayor. I have enclosed a copy of the job description for the fire chief.

With the foregoing in mind, it appears the mayor is the immediate supervisor of the fire chief. This determination is made with reference to Ark. Code Ann. § 25-19-106(c)(2), which provides:

(2)(A) Only the person holding the top administrative position in the public agency, department, or office involved, the immediate supervisor of the employee involved, and the employee may be present at the executive session when so requested by the governing body, board, commission, or other public body holding the executive session.

In light of the foregoing information, you have asked the following question:

Would the mayor be legally permitted to attend an executive session of the Springdale Civil Service Commission if requested to do so by that commission?

RESPONSE

Yes, as the immediate supervisor of the fire chief, the mayor may attend an executive session of the Springdale Civil Service Commission at the Commission's request, provided that the session is held to discuss certain personnel matters regarding the fire chief.

DISCUSSION

As an initial caveat, I must point out that the Attorney General's office is neither authorized nor equipped to act as a factfinder in issuing opinions. Consequently, I must refrain from interpreting and applying local ordinances, as doing so would involve significant questions of fact. Thus, I cannot definitively opine on whether the mayor is indeed the immediate supervisor of the fire chief. However, the limited information before me suggests that the mayor is likely the fire chief's immediate supervisor, and this appears to be the City of Springdale's determination as well. I will therefore proceed with the analysis with this presumption in place.

The Springdale Civil Service Commission ("the Commission") is a municipal governing body that is subject to the open-meetings requirement of the Freedom of Information Act ("FOIA"). However, the Commission may meet in executive session "for the purpose of considering employment, appointment, promotion, demotion, disciplining, or resignation of any public officer or employee." In addition to the commissioners, there are four other individuals who may attend the executive session at the Commission's request: (1) the person holding the top administrative position in the public agency, department, or office involved; (2) the immediate supervisor of the employee involved; (3) the employee; and (4) any person being interviewed for the top administrative position in the public agency, department, or office involved.

While not explicitly stated in your request, I gather from the information you have provided that you are asking whether the mayor may attend an executive session held by the Commission to discuss personnel matters relating to the fire chief. In that case, the answer is "yes," so long as the matter(s) discussed fall within those authorized by subdivision 25-19-106(c)(1)(A). As the immediate supervisor of the fire chief, the mayor may attend such an executive session at the Commission's request.

Sincerely,

LESLIE RUTLEDGE
Attorney General