As the Arkansas State Board of Education considers allowing the Friendship Education Foundation charter school management group to take the lead in Marvell-Elaine Public Schools, an attorney representing the Elaine mayor and other community members says the state board can’t do this. At least, not yet.
“On behalf of my clients, I am writing to advise you that the State Board of Education cannot legally vote today to authorize a ‘transformation contract’ with Friendship Education Foundation pursuant to Act 237 of 2023, known as the Arkansas LEARNS Act, because the LEARNS Act is not yet effective,” wrote attorney Ali Noland in a letter sent today to state board members and Arkansas Education Secretary Jacob Oliva. Noland is also a member of the Little Rock School District Board and a contributor to the Arkansas Times.
There’s been increasing chatter online and among state politicians that failure to follow a procedural requirement clearly laid out in the Arkansas Constitution negates the emergency clauses attached to more than 90 of the laws passed during the 2023 session.
Only bills passed with emergency clauses can go into effect immediately. Otherwise, they sit for 90 days, with the thinking that this interim period gives citizens time to mount opposition and gather signatures if they want to challenge any laws by referendum. Laws passed with emergency clauses can still be challenged, even though they go into effect immediately upon the governor’s signature.
Article 5, section 1 of the Arkansas Constitution requires lawmakers to vote on emergency clauses separately from the bills themselves. But they did not do that in 2023. Not for the Arkansas LEARNS Act, nor the democracy-squelching 15/50 law that significantly boosts requirements for citizen-led ballot initiatives to get on the ballot. The votes on these laws and the emergency clause components of them were taken in one fell swoop.
The law granting the state attorney general the power to approve or deny ballot titles passed with an emergency clause folded in too, meaning that if two separate votes are indeed required as the constitution suggests, Tim Griffin may not have had the legal authority to deny the CAPES group’s first stab at a ballot title to get a repeal of the Arkansas LEARNS Act on the November 2024 ballot. He’ll have it 86 days from now, but he arguably didn’t have it when he denied the public education advocacy group’s first submission.
So did they really mess this up, or does the apparent requirement in the state constitution not really demand separate votes for the emergency clauses to be in effect? A number of legislators said they didn’t really notice any difference to the way votes were called this session compared to sessions past.
The parliamentarians for the Arkansas House and Senate had different takes. Steve Cook, who retired this year as parliamentarian for the Arkansas Senate, said this conundrum over whether emergency clauses must be voted on separately has been a matter of discussion. He agreed that a literal reading of the state constitution would require two votes, but said that’s not how it’s been done.
“I guess somebody could challenge that,” he said.
Buddy Johnson, parliamentarian on the House side, sent his answer to our question on this via House spokeswoman Cecillea Pond-Mayo: “Emergency clause votes are recorded separately in the House Journal. Voting in the House is a matter of process which the House has the authority to determine,” she said in an emailed statement.
Pond-Mayo further clarified that the votes are logged as separate items, even if only one vote was taken. She pointed to this example in the journal of House proceedings.
This emergency clause question could factor in as the state board moves forward on approval of a transformation contract to give Friendship Charter the reins on Marvell-Elaine Schools.