Arkansas State Police Commission v. Davidson , 253 Ark. 1090 ( 1973 )

Conley Byrd, Justice.

The issue on this appeal is whether the appellants, The Arkansas State Police Commission, J E. Dunlap, Chairman, et al, can hold the hearing required by Ark. Stat. Ann. § 42-406 (d) (Repl. 1968), for the reinstatement of a discharged State Policeman in executive session under the Freedom of Information Act, (Act 93 of 1967). The trial judge construed the Freedom of Information Act to require that the hearing of testimony, as distinguished from a discussion or consideration by the Commission, must be held in public. We agree.

For the purpose of this proceeding, it is admitted that appellee, B. G. Davidson was dismissed from the State Police Force, and that in apt time he made application for a reinstatement hearing, and that appellants refused to give him a public hearing.

Arkansas Statutes § 42-406(b) (Repl. 1968), provides that a member of the State Police Force can only be removed for cause. Subsection (d) thereof provides that the Director must give a discharged State Policeman written notice of the reasons therefor and that such discharged State Policeman can appeal his dismissal to the Commission. That subsection further provides:

“An appeal may be taken to the Circuit Court of Pulaski County from any order of the Commission discharging, . . . any member of the State Police Force, provided such appeal be perfected within thirty (30) days from the date of the final order made by the Commission, and such appeal shall be heard by the Circuit Court without the introduction of any further testimony.’’

The two germane sections of the Freedom of Information Act here involved are Sections 2 and 5. Section 2, [Ark. Stat. Ann. § 12-2802 (Repl. 1968)] provides:

“It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy. Toward this end, this act [§§ 12-2801 — 12-2807] is adopted, making it possible for them, or their representatives, to learn and to report fully the activities of their public officials.’’

Section 5, [Ark. Stat. Ann. § 12-2805 (Repl. 1968] provides:

“Except as otherwise specifically provided by law, all meetings formal or informal, special or regular, of the governing bodies of all municipalities, counties, townships, and school districts, and all boards, bureaus, commissions, or organizations of the State of Arkansas, except Grand Juries, supported wholly or in part by public funds, or expending public funds, shall be public meetings.

The time and place of each regular meeting shall be furnished to anyone who requests the information.

In the event of emergency, or special meetings the person calling such a meeting shall notify the representatives of the newspapers, radio stations and television stations, if any, located in the county in which the meeting is to be held and which have requested to be so notified of such emergency or special meetings, of the time, place and date at least two [2] hours before such a meeting takes place in order that the public shall have representatives at the meeting.

Executive sessions will be permitted only for the purpose of discussing or considering employment, appointment, promotion, demotion, disciplining, or resignation of any public officer or employee.

Executive sessions must never be called for the purpose of defeating the reason or the spirit of the Freedom of Information Act.

No resolution, ordinance, rule, contract, regulation of motion considered or arrived at in executive session will be legal unless following the executive session, the public body reconvenes in public session and presents and votes on such resolution, ordinance, rule, contract, regulation, or motion.” [Emphasis ours].

Appellants rely upon the italicized portion of Section 5, for their authority to hold an executive session. When that portion permitting executive sessions “. . . only for the purpose of discussing or considering employment, . . . disciplining, or resignation,” of any employee is considered in the light of the declaration of public policy set forth in Section 2, we cannot construe it broad enough to permit an executive session for the purpose of hearing testimony. Like the trial court, we read the provision permitting an executive session, when applied to a statutory evidentiary hearing such as this, as giving to the Commissioners, after the hearing of testimony (and arguments, if any), the limited right of retiring into executive session “. . .only for the purpose of discussing or considering. . .” among themselves the decision they should reach. However, we point out that the last paragraph of Section 5 makes it mandatory for the Commissioners to reassemble in public session for the purpose of voting on the matter before them.

Afirmed.

Fogleman, J., concurs.