Somewhat lost in the rightful outrage about Sen. Trent Garner’s taking a part-time public defender job in south Arkansas while still a sitting state senator is just how badly the Arkansas Public Defender Commission handled it, from initial hiring to this very day. So, while there is still plenty more to come on the Garner side of the story, I thought it might be interesting to take a look at the questionable APDC actions, decisions, and statements.
In fact, let’s do it as a list. People love lists.1
1. Gregg Parrish Relied on an Outdated, Irrelevant Attorney General Opinion
Once the first post about Garner went live on June 2, I sent it to Arkansas Public Defender Commission Executive Director Gregg Parrish. When I still hadn’t heard back from Parrish by the following day, I sent the post to Daren Nelson, the managing public defender for the 13th Judicial District.
By Monday, June 6, I had not heard back from either of them, so I sent an email to both men that included a FOIA request for, among other things, pretty much all communications in any format to, from, or about Trent Garner. Included in the responsive documents was this email that Parrish had sent to Nelson on June 2, a few hours after he received my first message:
Now, in the second post about Garner, I already noted that Parrish’s off-hand comment about the language change in Ark. Code Ann. 21-1-402 was a silly excuse:
Parrish’s explanation of that change, however, is wrong. Prior to the amendment, the statute read, in pertinent part, “no person elected to a constitutional office…may enter into employment….” Following the 2017 amendment, the statute reads, “a person elected to a constitutional office…shall not enter into employment.” These sentences mean the same thing. Relying on the earlier “may” to support your position, while ignoring the “no person” at the beginning, is ridiculous.
What is even sillier, however, is relying on that attorney general opinion in this situation at all. That opinion, Ark. Op. Att’y Gen. 2003-138, dealt with whether then-Sen. Tracy Steele, who was Executive Director of the MLK Commission, could continue to hold that position now that he was a state senator in light of Ark. Code Ann. 21-1-402.
In determining that Steele could hold the position while a senator, the opinion noted that Steele had held the position prior to being elected and that the statute explicitly grandfathered in positions that were held prior to being elected to office.2
See how I italicized “prior” twice in the preceding paragraph? Yeah, that’s kind of a hugely important distinction. To this day, Ark. Code Ann. 21-1-402(a)(4) states, “Subject to any restriction or condition prescribed by the Arkansas Constitution, any constitutional officer who was employed by a state agency prior to being elected a constitutional officer my continue that employment….”
Trent Garner, of course, did not hold a position as a public defender prior to being elected to the state senate. Meaning that the only way Parrish could say with a straight face that he relied on that AG opinion is if he either had pretty much no idea what the opinion said or he lacked the critical-thinking skills necessary to see the difference between someone who held a position prior to being elected and one who got hired five-plus years after being elected. Neither answer is good.
My guess, however, is that it is the former, and Parrish did not really have a clue what that AG opinion said. After all, in addition to being clueless about how the “may” / “shall not” distinction he was drawing was meaningless, he also seems to have been completely unaware of the provision of the statute that requires a legislator to wait at least two years after leaving office to take any position that was created within the legislator’s final two years in office.3 That provision would also have barred Garner’s acceptance of this position, even if he had already resigned his senate seat.
In short, there was simply no scenario where Trent Garner was eligible to take that position. Parrish, as Executive Director, should have known this, or at least researched it, rather than relying on a hazy memory of an AG opinion that doesn’t even apply to this situation.
2. Sharing e-Filing Accounts
On April 20, about a week after Garner started his public defender job, a paralegal with the district office emailed Daren Nelson, managing public defender for the 13th district, noting that Union County was not accepting entries of appearance that were filed on paper and were accepting electronic filings only. Nelson responded:
Ms. Evans responded that Tommy did, in fact, have his e-filing account set up, but that Garner did not, to which Nelson responded again:
Now, if you have looked at CourtConnect since this story broke, trying to locate the cases Trent Garner worked on, you have come up pretty empty. Using someone else’s electronic-filing account will do that sort of thing, since the system associates a filing with the person on the account, not whatever person’s name might be written in the submitted document.
If this was just sloppiness or laziness, it would only be mildly noteworthy at best. But it’s somehow sketchier than that. First, Garner has an electronic-filing account, or at least he had one by May 23, when he filed the one case on which he appears in CourtConnect, a divorce in Garland County. Why are there no cases with the public defender’s office on which he used his own e-filing login?
Second, getting an e-filing account takes literally less than two hours. You fill out a form with your name and bar number and contact info, you watch a one-hour video on how the e-filing system works, and you pay $100. That’s it. In what world does it make sense to tell someone “just use mine” instead of telling them to take 90 minutes or so and get their own?
Third, the Supreme Court and the AOC want every lawyer to have his or her own filing account. Administrative Order 21, section 10, says:
Nelson is likely not in violation of the letter of this provision since he specifically authorized Garner to use Nelson’s e-file account, but allowing another attorney who is entering multiple appearances and filing documents to continue to use an e-filing account that isn’t his definitely runs afoul of the spirit of the rules. This provision about allowing employees and agents to use one’s login is designed to make it ok for a lawyer’s paralegal or assistant to log in and file things on the lawyer’s behalf, not to allow two lawyers to use one login over and over again.
3. Haphazard FOIA Responses
When I sent the initial FOIA request to Parrish and Nelson on June 6, I received a response from Charlotte Bogan, an attorney with the APDC, in which she claimed that there was a lot of information to sort through and asked if I would agree to give her until June 27 to respond.
Three weeks after the request was sent, and long after the heat behind this story would have started to fizzle out if it was ignored.
So, no, I wasn’t agreeable to such an extension. And, wouldn’t you know it, even without an extension, the documents started arriving pretty quickly.
Of course, just because someone provides documents in response to a FOIA request does not necessarily means that they provided the documents correctly. A person could comply timing-wise with the AFOIA and still do something improper like, say, providing an unredacted copy of a paystub, showing the employee’s home address. Or you might redact the employee’s personnel number from most of the documents you provide, but then provide the termination confirmation with the personnel number visible. Or perhaps you inexplicably disclose one reporter’s call-back number but redact another reporter’s number, because what even is consistency? Or maybe you include a completely unredacted affidavit of indigency for a public defender client, which I am not going to post or link to because there is no reason that this private citizen’s home address, date of birth, marital status, and financial information should have been sent out in the first place.
The Arkansas Freedom of Information Act has been around for over 50 years. It has undergone tweaks and amendments in that time, but the general provisions have remained remarkably consistent through the years. That fact that today, in the year of our Chthulu 20 and 22, we still have public agencies that don’t know how to properly respond to a FOIA request is nothing short of absurd.
4. Deleting Hours Worked?
I’m going to start this one off by admitting that it’s a bit outside my baliwick, at least as far as being able to confidently say whether it was proper. I welcome feedback from anyone who reads this part and knows more about the topic than I do.
That said, Trent Garner was hired in a part-time position that allowed him to work up to 30 hours per week as a public defender. Pay periods cover two weeks at a time. Apparently, Trent worked slightly over 30 hours for the week of 4/18, prompting this email:
If this was a private employer, telling an hourly employee not to report hours worked would be illegal on its face. My assumption–which, again, I could be wrong about–is that the same thing applies when you’re talking about a part-time, hourly state employee in a non-exempt position: if he worked an hour, you have to pay him for that hour. You can’t just not pay attention to how many hours a part-time employee is working, see that they’ve worked an extra hour, and then tell them they have to delete that hour and not get paid for it, can you?
Now, far be it from me to defend Garner here or act like he “deserves” any pay for a job that he legally couldn’t accept in the first place, but c’mon. The last thing any employer should be doing is telling an employee to delete time that was actually worked4 and not paying them for that time.
When I started writing about this whole thing, I had no clue how weird the rabbit hole would get. I figured Garner would throw a fit on social media, deny any wrongdoing, and hunker down until his hand was forced. Instead, we’ve had front-row seats to one of the more bizarre comedies in a while, with more plot twists apparently looming.
But one twist that I really did not see coming was the Arkansas Public Defender Commission’s complete ineptitude as a running plot-line throughout the narrative. Watching it from a distance is like watching a person go out of their way to step on rake after rake when there’s a nice, rake-free path a couple feet away. It’s even sort of funny in the abstract.
It’s decidedly less funny, however, when you realize that an agency as important as the APDC is apparently led by Wile E. Coyote.
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Or, at the very least, somewhat lazy bloggers love lists on a Friday afternoon post.↩
The opinion also looked at the Arkansas Constitutional provisions against dual office holding, concluding that employment did not equal an “office,” so that the Arkansas Constitution was also not violated. That part of the analysis isn’t relevant to our situation, however.↩
Ark. Code Ann. 21-1-402(e)(1).↩
How much actual work Trent Garner was doing is the subject of an upcoming post.↩