When Governor Asa Hutchinson asked the Arkansas General Assembly to change the education and experience requirements so that Johnny Key could be appointed as head of the State Board of Education, many people were bemused. Why was it so important for Governor Hutchinson that the position go specifically to Key, and, relatedly, why was Key assumed to be such a great choice for the job if he did not even meet the bare minimum of qualifications for it?
Whatever the answers to those questions, everyone can at least agree that appointing someone to that position was specifically within the powers and duties of Hutchinson as Governor. People may not like the choice — they may even find the choice ridiculous, given the circumstances — but they cannot deny that the choice was the Governor’s to make.
It would be much more problematic if the Governor had, say, interfered with the hiring of an executive director for a joint state-federal agency whose bylaws and enabling statutes explicitly bar the Governor from such interference.
Case in point: the Governor’s Developmental Disabilities Council (DDC).
First, some context. The DDC, like similar councils in other states, was created under The Developmental Disabilities Assistance and Bill of Rights Act of 2000, and the DDC’s purpose is “to improve the independence and productivity of people with developmental disabilities and to ensure their integration and inclusion into the community.” To qualify for certain federal support, each state’s DDC has to meet certain criteria and has to submit a plan for approval by the feds. Per section 124(c)(5) of the federal statute, part of the state plan has to include assurances about various aspects of the program, one of which is:
L. NONINTERFERENCE.—The plan shall provide assurances that the designated State agency and any other agency, office, or entity of the State, will not interfere with the advocacy, capacity building, and systemic change activities, budget, personnel, State plan development, or plan implementation of the Council, except that the designated State agency shall have the authority necessary to carry out the responsibilities described in section 125(d)(3).
These assurances, including noninterference, are important enough that they appear throughout the documents that created and/or govern the DDC. For example, the Memorandum of Understanding between the DDC and the Arkansas Health Services Permit Agency (“HSPA”) specifically notes that the HSPA “is responsible for assisting the DD Council in obtaining the required assurances and in ensuring that the State Plan is consistent with state law.”
On August 15, 2011, the Arkansas DDC submitted their state plan for the years 2012 through 2016, and this plan specifically referenced the submission of signed assurances. Which is to say, Arkansas got approval for federal matching funds for the DDC in part because they promised not to let “the designated State agency[foot]The “designated state agency” for the DDC in Arkansas is the Arkansas Health Services Permit Agency.[/foot], and any other agency, office, or entity of the State…interfere with the…personnel” of the DDC.
Now, in the federal statute, and in the state laws and DDC policies and procedures, the primary “personnel…of the Council” is the Executive Director. Federal law specifies, “The Council shall, consistent with State law, recruit and hire a Director of the Council, should the position of Director become vacant, and supervise and annually evaluate the Director.” It is then up to the Director to do the remainder of the staff hiring. So, for all intents and purposes, the noninterference of any other state office with the personnel decisions of the Council applies most directly to the hiring of an Executive Director.
On December 1, 2014, Brenda Mercer resigned as Executive Director of the DDC, effective December 5, 2014. Through much of December, DDC Chairman Matthew Glass worked with staff to revise the job description for the ED position, with the idea that the job would eventually be posted, since that is required under DDC policies, and hiring would follow the normal route for such things. (We’ll come back to that whole “following policies” idea in a bit.)
By January 20, 2015, the ED job description had been changed and the changes had been approved, but the opening was still not posted. Then, on February 13, 2015, an email was sent to all DDC members, announcing an “extremely important meeting” to occur via teleconference on February 18. It was stressed to the DDC members that a quorum was needed because they would be taking a vote, though no agenda was provided and no explanation as to what they would be voting on was given.
Remember that part about noninterference that we discussed earlier? Well, keep that in mind as you listen to this recording of the teleconference of the Council from February 18, 2015 (jump ahead to 7:15 to skip the pre-meeting chit-chat, or listen from the beginning if you’d like to hear Chairman Glass disparage Arkansas State University).
In case you aren’t able to listen to the recording right now, allow me to summarize:
Once that meeting is called to order, Chairman Glass starts talking about an “incredible opportunity” for the DDC. He mentions how the ED position was a class C119 position, which he (incorrectly) states has a pay range of $31,000 to $50,000. (In reality, that position has a range of $35,554 to $65,221.) According to Glass, this range “inhibited” the DDC from attracting “really quality candidates” for ED. Then Glass drops this nugget:
As it turned out, Governor Hutchinson’s office has literally bent over backwards and offered us something on a silver platter. So…the governor’s office has agreed to raise the salary–the legislature has to approve this on Tuesday morning, but the governor’s office–the governor–has signed an executive order. It’s waiting to be presented to the legislature on Tuesday morning, which I’ll come over and testify to the Joint Budget Personnel Committee, to raise the salary level to $90,000, to hire a guy named Eric Munson to be our new executive director.
I had the opportunity to go spend a couple hours with Eric and kinda call around and check up on just kinda some references for the guy, and there’s just absolutely no way we can pass it up.
With a ringing endorsement like that, Eric Munson must have extensive experience working with and on behalf of people with developmental disabilities, on top of meeting the job qualifications, right? Or not; here’s Munson’s resume. He doesn’t have the requisite degree type, nor does he have any experience in developmental disabilities. He is (or was) a lobbyist, and he donated to Asa’s campaign. Oh, and he worked for Mark Martin in the Secretary of State’s Office, overseeing the department of business and commercial services for a while.
More to the point, however, even if Munson was experienced, the ED of the DDC is specifically a position where the governor cannot interfere with the hiring process. And the DDC has a very defined process for hiring an ED, which you can click to enlarge:
So, let’s see…they followed step 1, inasmuch as they got notice of the impending vacancy when Mercer announced her resignation.
They sorta followed step 2, though it is unclear how much input the Director of the HSPA, the Vice Chair of the DDC, or another council member had in the revision of the job description, since it appear that Glass did most of it himself.
As for steps 3 through 8? Those were completely ignored, and they were ignored entirely because the governor hijacked the process with his all-or-nothing move on behalf of Eric Munson Which means, by definition, the governor “interfere[d] with the…budget [and] personnel…of the Council.”
In addition to being a problem under the federal statute, this whole thing raises a number of questions:
1. Chairman Glass mentioned an executive order that the governor had signed; why does no such order appear on the website with all of the governor’s executive orders?
2. Why, when I sent a FOIA request to the DDC for all hiring-related policies, procedures, and bylaws, did Eric Munson not provide me with the hiring checklist in the image above?
3. Why is Munson so special that the governor not only gets him into a position for which he is not qualified, but also feels the need to raise the position’s salary by $40k?
4. How disingenuous is Glass’s saying that the increased salary is needed to attract good candidates, and that attracting those candidates was the sole reason Glass started asking to increase the salary generally, then turning and taking the governor’s proposed increase that comes only by accepting a candidate who didn’t even meet the minimum qualifications?
5. The last several EDs and interim EDs have been women; does it seem odd to anyone else that the governor decided to increase the salary by $40k and then hire a specific man for the job?
It is entirely possible that Governor Hutchinson was unaware of the noninterference rules of the DD Act. If that is the case, however, one would expect Munson to be gone in short order and a new, qualified ED to be properly hired, according to policy, at the current $90,000 salary. After all, Glass stressed that the increased salary would allow the DDC to attract better candidates for the position, and we all want to believe that he wasn’t just saying that to justify selling out to the Governor.