Opinion No.

The Honorable Larry Jegley Prosecuting Attorney Sixth Judicial District 122 South Broadway Little Rock, Arkansas 72201

Dear Mr. Jegley:

This is in response to Mark Stodola's request for an opinion on whether, pursuant to the Arkansas Freedom of Information Act (A.C.A. §§ 25-19-101 to -107 (1987 and Supp. 1995)), the Board of Directors of a city with the city management form of government may go into executive session for "discussion and selection (by election or appointment)" of an individual to fill a vacancy in an unexpired term for a position on the city board which is currently vacant.

It is my opinion that the answer to your question is "yes," if the purpose of the executive session is to "consider" appointment of an individual or individuals to fill the vacancy.

The question is controlled by A.C.A. § 25-19-106(c)(1), which provides that:

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

The city board may therefore go into executive session to "[consider]" appointment of a "public officer," which appears to be the fact situation giving rise to your question. This is true assuming the meeting is held to consider the appointment of individual applicants. See Ops. Att'y Gen. 93-403, 91-070, 87-080 and 76-141.

It should be noted, however, that I have recently opined that such a city board may not actually interview candidates for the position in executive session. See Op. Att'y Gen. 96-269 (copy enclosed). The statute above, however, clearly allows the city board to consider the appointment of an individual or individuals to fill the vacancy in this public office in executive session.

The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elana C. Wills.

Sincerely,

WINSTON BRYANT Attorney General

WB:ECW/cyh