State lawmakers on Friday initiated a pair of investigations into the Arkansas Board of Corrections over the prison oversight panel’s hiring of special counsel to sue the state.
The Legislative Joint Auditing Committee will investigate the origins of the board’s contract with the Hall Booth Smith law firm and attorney Abtin Mehdizadegan; Joint Performance Review will look more broadly at the board’s practices.
The legislative probes further escalate tensions between the board and much of the legislative and executive branches and stems from differences in opinion about the board’s authority.
The board asked the Legislative Council this week to retroactively ratify the $207,000 legal agreement, which didn’t go through the typical state procurement process. (The board has argued that its constitutional independence may exempt it from state procurement law.)
Prison Board Chairman Benny Magness withdrew the request after being questioned about changes made to the payment agreement that neither he nor state procurement officials noticed.
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In addition to unanswered questions about those changes, Sen. Jonathan Dismang, a Republican from Searcy, and other lawmakers have also expressed concerns about the contract not being opened for public bid and about the board’s lack of public votes on the agreement.
“Clearly, there are issues with how the board operates and how that relates back to the Department of Corrections,” Dismang said Friday. “Individuals were able to unilaterally make significant decisions over significant amounts of money with significant impact on the state.”
Magness said the board intends to cooperate.
“The investigations didn’t come as a surprise, and the board will cooperate fully with them,” Magness said Friday. “The board has always maintained a good working relationship with legislators, and the other [board] members and I will do all we can to continue that relationship. As soon as the board’s own investigation is complete and board members have had an opportunity to meet and discuss the findings, they will be presented to the legislators.”
Origins
The friction between the prison board and top state officials began in November when Gov. Sarah Huckabee Sanders called a press conference to criticize the board’s reluctance to approve the entirety of a plan to add more than 600 temporary inmate beds to existing state correctional facilities.
Over several weeks, the board approved all of the beds after the plans were tweaked to address members’ safety concerns, but the disagreement with the governor and others has grown into a larger debate over who has final authority over the state’s prisons.
A lower court judge in the lawsuit filed by the board against the state determined that Amendment 33 to the Arkansas Constitution likely gave that control to the Board of Corrections, though Attorney General Tim Griffin is appealing the ruling to the Arkansas Supreme Court. The high court has never ruled squarely on the reach of Amendment 33, which also grants independence to the governing boards of the state’s colleges and universities.
Pulaski County Circuit Judge Patricia James also found that board members were “constitutional officers” and, therefore, fall under a state statute that allows them to hire special counsel when they disagree with the attorney general.
“This special counsel shall receive a reasonable compensation for his or her services,” the statute reads.
While members of the board felt they had the authority to hire and pay Mehdizadegan and his firm independently, the Department of Corrections’ chief financial officer decided the funds couldn’t be released without standard procurement approval through the Legislature.
To try to pay the legal bill sooner, the board elected to ask the Legislature for retroactive approval this week.
Lawmakers and state procurement officials raised questions Tuesday about language that was added in the payment agreement. There were concerns that the language, which included a potential waiver of the state’s sovereign immunity, was inserted after Magness signed the document.
After the meeting, though, Mehdizadegan provided documents showing that he made the changes before the document was signed by Magness.
Mehdizadegan said he had expected the department’s procurement officials would let him know if there were any problems with his additions, but those officials, until this week, apparently didn’t review the executed document or missed the changes.
In a letter to the prison board after the committee meeting earlier this week, Mehdizadegan explained the reasons for making changes to the procurement document, which included protecting the board’s legal arguments from collateral damage.
“I want to be clear: the insinuation that there was any misconduct on the part of the Board or me is simply untrue,” Mehdizadegan wrote in the letter. “I will not compromise my integrity under any circumstance, and I did not do so here; however, if the Board has questions, I am more than willing to answer them in an open public meeting at your convenience.”
