The Arkansas Legislative Council on Friday requested that the Legislative Joint Auditing Committee conduct a review of a contract between the state Board of Corrections and an outside legal counsel, and that the Joint Performance Review Committee review the functioning of the state Board of Corrections.
The council's decision to authorize these reviews came three days after board Chairman Benny Magness withdrew the board's contract with attorney Abtin Mehdizadegan, a partner in the law firm of Hall Booth Smith P.C., from consideration by a legislative committee. Magness pulled down the contract after he was unable to explain language added to the contract, and he pledged to authorize a board investigation into the language added to the contract and resubmit the contract later.
The contract started Dec. 8 and will continue until Dec. 7, 2024, with a total project amount of $207,000 under its terms. The board has incurred $139,639 in legal fees with the legal counsel in December, January and February, Chad Brown, the department's chief financial officer, testified Tuesday.
In making a motion requesting that the Legislative Joint Auditing Committee review the contract between the state Board of Corrections and the outside attorney, state Sen. Jonathan Dismang, R-Searcy, said there are clearly issues with the contract and questions about the initial contract and the language added to it.
He noted that Magness testified the board contracted with Mehdizadegan at the recommendation of Board of Corrections member Lee Watson.
In asking the Joint Performance Review Committee to review the functioning of the Board of Corrections, Dismang said there are clearly issues with how the board operates and how it relates to the state Department of Corrections, and he alleged individuals have been able to unilaterally make important decisions at significant cost to the state for the board.
Dismang is a co-chairman of the Legislature's Joint Budget Committee.
After the Legislative Council meeting, Magness said Friday in a written statement "The investigations didn't come as a surprise, and the board will cooperate fully with them.
"The board has always maintained a good working relationship with legislators, and the other members and I will do all we can to continue that relationship."
Asked when the state Board of Corrections plans to complete its investigation of the outside attorney contract, Magness replied in a written statement "ASAP."
Asked when the Board of Corrections plans to present the findings of its investigation to lawmakers, he said, "As soon as the investigation is complete, and the board has an opportunity to meet to review the findings."
The Arkansas Department of Corrections had asked the Legislative Council's Review Subcommittee on Tuesday to ratify the board's contract with Mehdizadegan after the state's procurement director Ed Armstrong said ratification of the contract is required to make the contract a lawfully binding obligation on the state because it appears that public procurement processes were not followed.
Magness acknowledged the error Tuesday.
Brown stated in a letter to the Legislative Council's Review Subcommittee co-chairs that "The Board of Corrections believes they are a constitutional board, based on Amendment 33 of the Arkansas Constitution.
"However, in order for this invoice and anticipated future invoices to be paid out of Division of Correction funds, the Department of Corrections leadership is requesting ratification of this contract to allow for payment(s) to the law firm," he wrote.
Attorney General Tim Griffin on Tuesday urged the Legislative Council's Review Subcommittee not to ratify what he called "the Board's unconscionable conduct and profligacy in this instance.
"The Department wants the committee's blessing for these legal bills to be 'paid out of Division of Correction funds,'" the Republican attorney general wrote in his letter. "The Division of Correction's funds should not be diverted from the critical public safety purposes for which the General Assembly appropriated them to bankrolling a lawsuit against itself."
Magness testified Tuesday he didn't know whether he reviewed the contract with Mehdizadegan and it was changed later after he signed it, or whether he simply missed the changes to the contract before he signed it.
Mehdizadegan said Tuesday he submitted the contract March 6 to the state Department of Corrections with "quick revisions" and made reasonable changes to the contract and no one objected to the changes.
He said Magness signed the contract after Mehdizadegan signed the contract, and "there was no deception whatsoever."
Griffin has appealed to the Arkansas Supreme Court two circuit court rulings in separate lawsuits related to the ongoing dispute between Republican Gov. Sarah Huckabee Sanders and the state Board of Corrections.
One appeal is related to a Jan. 19 ruling by Pulaski County Circuit Judge Patricia James that, in part, levied a preliminary injunction against two laws that the board's suit contends violate the state constitution. Sanders is one of the defendants in that case.
The other concerns a Jan. 22 order from Pulaski County Circuit Judge Tim Fox dismissing Griffin's suit against the board. In that suit, Griffin accused board members of violating his rights under the Arkansas Freedom of Information Act and illegally hiring an attorney for their lawsuit against the state.
The appeals would give the Arkansas Supreme Court the chance to weigh in on a feud that began late last year and led to the firing of then-Secretary of Corrections Joe Profiri, who subsequently was hired by Sanders to serve as a senior adviser in her office.
The appeal in the suit filed by the board involves the interpretation and construction of the state constitution because the board argues Act 185 of 2023 and portions of Act 659 of 2023 violate Amendment 33 to the constitution.
Those laws make the corrections secretary and directors of the departments of Correction and Community Correction answerable to the governor rather than to the board.
The board contends the change violates the authority given to constitutional boards and commissions under Amendment 33, which prohibits the governor and Legislature from making certain kinds of changes to state boards and commissions that oversee Arkansas' charitable, penal, correctional and higher education institutions.
On Dec. 15, James, the Pulaski County circuit judge, issued a temporary restraining order barring enforcement of Act 185 and the challenged portions of Act 659.
After a hearing in early January, James converted the order into a preliminary injunction which, unless it is overturned by the Supreme Court in response to Griffin's appeal, will stay in place until the lawsuit is resolved.
Griffin's appeal in the open-records lawsuit also involves interpretation of the state's constitution because the board members argue they are constitutional officers, and the suit involves the scope of the attorney general's duties, the notice states.
The board in a Dec. 8 meeting about the hiring of a special counsel allowed no public discussion and produced no correspondence about the hiring of Mehdizadegan as the board's special counsel, Griffin's complaint states.
Discussion of the hire was not eligible in private executive session, Griffin contends, and the board discussed the topic in executive session.
Griffin also contends that Magness admitted under oath to meeting with another board member before the Dec. 8 meeting of the entire board about hiring counsel.
The board did not provide any documents related to a discussion of the hire in response to a Dec. 11 request Griffin made under the Freedom of Information Act, the complaint states.
Magness testified Tuesday that the state Board of Corrections hasn't violated the Arkansas Freedom of Information Act.
Griffin requested Fox declare the meeting between Magness and the other board members an illegal public meeting, find that the board acted illegally in the Dec. 8 meeting, prevent the board from retaining Mehdizadegan as counsel, prevent it from hiring any other counsel through an illegal executive session, and fulfill Griffin's open-records law request.
The board, through Mehdizadegan, countered by challenging the legality of the attorney general essentially suing one of his office's own clients, arguing that Griffin was violating the Rules of Professional Conduct.
Fox agreed with that assessment, noting the attorney general's duties under Arkansas Code 25-16-702 require that Griffin provide legal counsel for state agencies, either using his own assistants or by hiring counsel. Fox said Griffin could not simultaneously sue board members and bar them from having a lawyer.
On Jan. 22, he dismissed Griffin's case without prejudice, saying Griffin had failed to fulfill his duty to ensure the board had legal representation.
The board's Dec. 14 lawsuit followed a dispute between the board and Profiri over the addition of hundreds of temporary beds at state prisons. Griffin's suit followed Dec. 15.
Sanders sharply criticized Magness when the board asked for more information before approving all of the new beds, and Magness rejected Sanders' request for him to resign immediately Dec. 22.
Board members voted to fire Profiri on Jan. 10, and Sanders hired him as a senior adviser to her office. Last month, the board confirmed Sanders' nomination of the Department of Corrections' then-Chief of Staff Lindsay Wallace as corrections secretary.
Information for this article was contributed by Grant Lancaster of the Arkansas Democrat-Gazette.