AT THE HEARING: State Sen. Alan Clark. Arkansas Senate

Leaders of two state agencies declined to appear before a joint meeting of the Arkansas legislature’s State Agencies and Governmental Affairs committees on Thursday, inspiring outrage, threats and ultimately approval of a motion to subpoena the state officials from lawmakers.

Commerce Secretary Mike Preston, invited to discuss the troubled rollout of the state’s Pandemic Unemployment Assistance program and a recent data breach, emailed the committee to say he would be unable to appear because of an ongoing FBI investigation into the data breach.

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The joint committee had also requested attendance by Doralee Chandler, executive director of Alcohol Beverage Control, to discuss the ABC’s temporary revocation of the alcohol permit for Temple Live, the Fort Smith venue that tried to face down the state over a concert scheduled ahead of the date the state set for large indoor venues to re-open. Representatives from Temple Live were in attendance. Larry Walther, secretary of the state Department of Finance and Administration, wrote the committee to say that Chandler wouldn’t appear because the “appropriate venue for Temple Live to air their grievances is in a hearing before” the ABC board and the ABC wouldn’t “participate in a hearing on an administrative violation outside the proper forum.”

Sen. Jimmy Hickey (R-Texarkana) said, “I think this is a horrible, horrible precedent that these agencies are setting by not appearing for these bodies.” Hickey was recently elected to lead the Senate next year, a result that many have interpreted as a sign that many in the Senate are ready to serve as a greater check on the executive branch. Noting that the legislature appropriates state money, Hickey said in warning, “I’m going to tell you now there will be some bad times ahead.”

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Sen. Jason Rapert (R-Conway), who is not a member of the committee, received permission to speak and suggested that the chairs of the committee inquire as to who ultimately made the decision to prevent Chandler and Preston from appearing. “I think it would be very important and revealing to find out who made the decision for them not to come,” he said.

Sen. Trent Garner (R-El Dorado), serving as a substitute co-chair of the committee with Sen. Ronald Caldwell (R-Wynne) absent, said he was gravely concerned about the data breach and the potential exposure of 30,000 applicants’ information. He said that number could be greatly compounded, considering the supporting documentation applicants had to upload, including tax returns. Was only the whistleblower able to access the information or were there more people? he asked. Legislative committees often interview people under investigation. Even so, he asked Preston to appear even if he couldn’t talk about the data breach. “We understand he’s under tremendous pressure, but he isn’t under the pressure of those 30,000” applicants, he said. “I think it is incomprehensible that he wouldn’t come.”

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UPDATE: Governor Hutchinson provided the following statement after the meeting:

“The decision not to appear before the State Agency Committee was at my request and direction.  I discussed the issue with both the Sen. Pro Tem and Speaker of the House and advised that my administration would testify before the full ALC next week and answer questions relating to the Pandemic Unemployment Assistance website and payment of funds.  We certainly welcome legislative oversight.  This week my leadership team had to be fully focused on supporting the effort of getting the website secure and the payments to the applicants.  In reference to the ABC Director, we also welcome legislative oversight but we expect that agency directors will not be asked to attend a hearing under one premise and surprised by additions to the agenda that have the potential to place an agency director in adversarial circumstances with an entity regulated by that agency.”

“As of May 19, 43 states have been making payments. I think we need to know why it has taken so long,” Sen. Will Bond (D-Little Rock) said of the PUA system. “It’s important to the legislative process to understand why we are lagging behind the vast majority of the nation in getting these payments out.”

Rep. Megan Godfrey (D*-Springdale) said she’d been inundated with questions about the PUA program from constituents. She said she wanted to know how ProTech, the private company that designed the PUA web application, got the contract. Garner said representatives for the company had been asked to appear but also declined, citing the FBI investigation.

Sen. Bob Ballinger (R-Berryville) then made a motion, contingent on approval of House Speaker Matthew Shepherd (R-El Dorado) and Senate Pro Tem Jim Hendren (R-Gravette), to subpoena Chandler and Preston to appear at a future meeting. It was approved without any audible “no” votes.

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A large portion of the rest of the four-hour meeting was devoted to Republican legislators asking sympathetic questions of Mike Brown, vice president of operations at Temple Live, and John Scott, the venue’s owner. Sen. Mark Johnson (R-Little Rock) suggested that the state had violated at least the First and Fifth Amendments of the U.S. Constitution in dealing with the venue. The actions of the state inspired Sen. Alan Clark (R-Hot Springs) to describe the plot of “The Minority Report,” where “they arrest people for murders they thought people were going to commit in the future.”

Arkansas Senate
WHY THE PUA DELAY: State Sen. Will Bond wanted to know.

Brown said he felt like the state was intimidating him when Health Secretary Dr. Nate Smith said in a press briefing, “We don’t carry guns, but the State Police does.”

Dr. Jennifer Dillaha, an infectious disease specialist with the Health Department, said after much back and forth that the venue’s plan met the department’s criteria, but the originally scheduled date, May 13 — three days before the state directive allowed large venues to re-open — did not.

Reginald Rogers, deputy general counsel for the Department of Health, said the matter “took a lot of time from our team that we needed to devote to flattening the curve of this pandemic.” He said that had the venue pressed ahead, the Health Department would have allowed it to proceed and would have merely fined top officials. 

Later, legislators pressed Dillaha on public health matters: Garner asked why restaurants faced more stringent regulations than retail stores. He said he might closely pass 200 people in the El Dorado Walmart over an hour shopping trip, but be around only three people in a restaurant. Dillaha said the issue was about trying to limit prolonged contact, which would be more likely in a restaurant than in a retail setting. She said the department was constantly weighing ways to reduce the risk of exposure to what’s feasible to enforce.

Rep. Brandt Smith (R-Jonesboro), who has made a career of crusading against problems that don’t exist, said he and pastors in his community were worried about the Health Department requiring churches to keep attendance logs. Smith said he had spent many years in China and Iraq and knew that in authoritarian regimes registration lists were used to round people up for persecution. Dillaha said that churches had been asked to keep such lists only to help in the event of an outbreak. She said it would greatly help the department’s contact tracing investigation and the state would only ask for the list in the event of an outbreak.

Several legislators, including Rep. Jim Dotson (R-Bentonville), asked versions of talking points that circulate widely in conservative circles: COVID-19 so far has killed far fewer people than the flu or car wrecks; why are we reacting in such an extreme fashion? Dillaha said that the disease was very contagious and can spread asymptomatically. She said increased testing and contact tracing would be necessary to fully open up the state. Flattening the curve will give health officials more time to learn about the disease and develop effective strategies for treatment.

Dillaha repeatedly stressed the importance of wearing cloth masks in public. She acknowledged that it would require a significant culture change. She and her Health Department colleagues all wore masks when they weren’t speaking. Only a handful of legislators did.

In a previous version of this post, State Rep. Megan Godfrey was described as a Republican.

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