Recording confirms Soffer’s account of alleged FOIA violation

A tape recording of an executive session of the Jefferson County Election Commission Monday night confirms statements by one of its members that the session appears to have violated the Arkansas Freedom of Information Act.

Commissioner Stu Soffer brought the recording to The Commercial on Wednesday afternoon and two reporters and an editor listened to the tape. On Monday, Soffer told a reporter that the executive session was illegal and later that night sent an e-mail to expand on his comments.

Under the Arkansas Freedom of Information Act, executive sessions can only be called to discuss personnel issues involving individual employees, but the tape indicated that the commission discussed complaints that followed the May primary election, particularly concerning absentee ballots.

The executive session was called by Commission Chairman Ted Davis and included Commissioner Cynthia Sims, Election Coordinator Will Fox and initially Soffer, who walked out after making several statements that the subject matter at the meeting did not meet the requirements for an executive session.

On the tape, Davis can be heard starting to talk about absentee ballots, a reference to a complaint filed by former Jefferson County Judge candidate Ivan Whitfield following the May Democratic primary, when Soffer is heard to say “Excuse me, I don’t think this is executive session stuff.”

Davis responded, saying the content of the discussion could be addressed in executive session.

Davis continued talking about the absentee ballots, and Soffer again made the comment that the executive session was illegal and told Davis and Sims they should consult prosecuting attorney S. Kyle Hunter, who is the legal adviser for the commission, about the subject matter they were discussing.

After Davis began questioning Fox about the absentee ballots, Soffer said he would not participate in an illegal executive session and walked out.

Monday night, Davis told a reporter that it was not illegal to hold an executive session to discuss matters other than personnel as long as the media is informed about what went on in the session after it is over.

When Davis and Sims returned from the executive session, Davis said they discussed complaints that followed the May primary election and decided no action would be taken.

On Tuesday, Hunter said he wanted more information about the executive session before deciding if it was illegal and when Soffer brought the tape to the newspaper on Wednesday, he said he had talked to Hunter and played the tape for him.

Hunter was out of the office when a reporter tried to contact him late Wednesday afternoon.