Arkansas lawmakers spent six hours Thursday raking state Board of Corrections leaders and the board’s outside attorney over changes to the lawyer’s contract and how the board conducts its business.
Members of the Joint Performance Review Committee criticized prison board chairman Benny Magness and secretary Lee Watson over the handling of the lawyer’s hiring. They spent more than hour questioning attorney Abtin Mehdizadegan over changes he made to a service contract form before the board submitted it to state procurement officials.
Alterations to the contract weren’t caught before it went into effect could subject the state to liability, state Procurement Director Ed Armstrong said last month.
The Legislative Joint Auditing Committee is also looking into the board’s contract with Mehdizadegan and the Hall Booth Smith law firm.
Legislative panels to probe Arkansas Board of Corrections contract, practices
The board has been embroiled in a dispute since November with Attorney General Tim Griffin, Gov. Sarah Huckabee Sanders and former Corrections Secretary Joe Profiri over who has ultimate authority over Arkansas’ prison system.
The prison board hired Mehdizadegan on Dec. 8 after a half-hour closed-door meeting characterized as a meeting to discuss an employment matter. Griffin usually represents state agencies in legal cases, but Arkansas law allows special counsel to be appointed in disputes between the attorney general and constitutional officers.
Watson, Magness and board member William “Dubs” Byers all testified under oath to lawmakers Thursday, along with Mehdizadegan, about how the board decided to hire the attorney and how his contract was drawn up.
Mehdizadegan has been representing the board in two ongoing lawsuits, but there has been confusion about how the board should proceed with paying his fees.
In December, the board challenged two state laws — Act 185 of 2023 and Sections 79 and 89 of Act 659 of 2023 — that removed the corrections secretary, director of correction and director of community corrections from the board’s purview.
These laws appeared to violate Amendment 33 of the Arkansas Constitution and made the board “a toothless tiger,” board member Watson told lawmakers Thursday.
Watson said he contacted Mehdizadegan in November to ask for informal input about the two laws and Profiri’s conduct. The board took issue with Profiri attempting to proceed with parts of a temporary prison expansion plan without board approval. The board later suspended and fired Profiri.
Sanders subsequently hired Profiri as a special adviser at a salary of $201,699.89 a year, about $8,300 less than he made as Corrections Secretary.
The board saw hiring outside counsel in the dispute with the Sanders administration as a “worst-case scenario” but felt compelled to do so, Watson said.
“We were going, I think, [to a place] where we either had to do this or we all just needed to resign and walk away,” he said.
Pulaski County Circuit Judge Patricia James blocked the two laws in January, ruling the board was likely to succeed on the merits of its argument that the acts interfered with the panel’s constitutional authority to oversee the prison system granted by Amendment 33.
James also denied a motion from Griffin to disqualify Mehdizadegan and Hall Booth Smith from representing the prison board.
The other lawsuit in which Mehdizadegan represents the board is one Griffin filed in December, claiming violation of the state Freedom of Information Act by hiring Mehdizadegan behind closed doors.
Pulaski County Circuit Judge Tim Fox gave Griffin and his staff a deadline to work with the corrections board on an agreement with an outside attorney, and Fox dismissed the case in January after Griffin’s office did not meet the deadline.
Fox criticized Griffin’s office for wasting taxpayer money with the lawsuit; Griffin appealed Fox’s ruling to the state Supreme Court.
Confusion and accusations
Magness wrote a letter to Sanders in November stating that he believed Profiri was violating Amendment 33. Sanders did not respond, and she directed Profiri in December to move ahead with the temporary prison expansion without board approval, which made the need to hire outside counsel “an emergency,” Watson said.
This meant the board had no time to go through the state’s procurement process, which includes requests for qualifications and bids from multiple candidates, Watson and Mehdizadegan both testified. Mehdizadegan also said he has represented state agencies before and never had to go through the procurement and bidding process.
Watson, Byers and Magness all said Mehdizadegan was not presented as a potential hire to the board of corrections until it met and hired him Dec. 8 after the executive session. No other attorney was considered in the brief meeting.
Magness and Mehdizadegan did not sign the contract finalizing the hire until March. Mehdizadegan told the Advocate at the time that he altered the contract before it was signed. He said he believed the language was “reasonable” and reflected the ongoing differences in opinion between the prison board, lawmakers and executive branch officials over the board’s legal and constitutional independence.
He said Thursday that he believed the changes he made were permissible while the contract was still unsigned.
“What I had was a proposal and an offer, and I made a counteroffer,” Mehdizadegan said. “…The Board of Corrections are experts in corrections. They’re not experts in procurement. They have people for that, and so I expected those people to do their jobs.”
The board has the option of seeking the Legislature’s retroactive approval of Mehdizadegan’s hiring. Absent that approval, the law firm’s only recourse for seeking payment for its work would be to go through the state Claims Commission, lawmakers said.
Mehdizadegan added the words “if applicable” to the portion of the contract that said any amendment increasing his compensation would be subject to legislative approval.
Rep. Jimmy Gazaway, R-Paragould, accused Mehdizadegan of using this change to try to secure more money for his services; Mehdizadegan denied this claim.
Lawmakers also took issue with Mehdizadegan’s addition of the words “if applicable” to the section about the state’s sovereign immunity — the idea that the state cannot be sued without its consent — because it could be read as a waiver of this immunity.
Upon questioning from Sen. Matt Stone, R-Camden, Watson said he wasn’t sure sovereign immunity was an issue in either lawsuit, but it was a possibility he discussed with Mehdizadegan.
Magness, Byers and Watson all said the prison board’s meetings are open to the public and recorded, but executive sessions are not documented. Meeting minutes are not posted online.
Sen. Jonathan Dismang, R-Searcy, said he was disappointed in the board for conducting business in a way he believed was intentionally hidden from the public eye.
“The processes were to make sure that no one could follow the process,” he said. “…Nothing was done in the open. The only open thing that we have to talk about [regarding] a $207,000 potential bill for the state of Arkansas is a three-minute meeting in which someone was hired.”
The three minutes referred to the amount of time it took the board after the Dec. 8 executive session to vote in public to hire an attorney and to hire Mehdizadegan.
In response to lawmakers’ questions, Watson said he did not believe he and Mehdizadegan formed an attorney-client relationship before Dec. 8.
Dismang and Gazaway took issue with Watson’s later statement that he told Mehdizadegan during their informal conversations that they might be subject to attorney-client privilege or the Freedom of Information Act.
Joint Performance Review plans to continue its probe April 11, and co-chair Rep. Mark Berry, R-Ozark, said he expects discussion to include whether the committee should issue subpoenas for some witnesses.
