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Senate State Agencies
Jan. 31, 2023
Sen B Johnson: Senate State Agency will come to order. Guess we will begin by putting Senate Bill 4 on deferred. And move on to Senate Bill 87. Senator Dotson, you’re recognized.
Sen Dotson: Thank you Mr. Chair, members of the Committee. I have Mr. Miller here from the Bureau. This bill is kind of long in length, but basically does a very simple thing. If you’ll recall, couple years ago, actually four years ago, we started the process of putting all of the – codifying all of the rules that come out of committees and are on, across state government. And that process has taken, we gave them four years, and it’s stretching into a little bit longer than that, but we’re getting close to the go-live date. And so as we’re getting closer BLR reached out to me and said hey, there’s a few things we need to make – put into statute. Or, not put into statute, most of this is uncodified language. But for the transition from one to the other, I’m sure if you sat there and started reading through this it was great for going to sleep last night or the night before, whenever you started to. But if there’s any specific questions within the details of the bill I’ve got Mr. Miller here with me to try and answer those and I’ll turn it over for questions.
Sen B Johnson: You have anything?
Miller (BLR): I do not, Senator Johnson. But I’ll be happy to answer any questions that y’all have.
Sen B Johnson: Members have any questions? Seeing no questions. What’s the will of the Committee?
Sen Dotson: Motion do pass
Sen B Johnson: Motion by Senator Dotson, second. All in favor say aye. All opposed, like sign. Thank you Senator.
Sen Dotson: Thank you.
Sen B Johnson: Next we will do Senate Bill 114. Senator Tucker, you are recognized.
Sen Tucker: Thank you Mr. Chair. Members, if you recall, a couple of weeks ago there was a bit of a scramble on Tuesday, January 16th to file a contribution and expenditure report that we weren’t really exp – I know for sure I was not expecting to file. And a lot of people I talked to weren’t expecting to file. It was a no activity report for December 31st only. And it was an unintended consequence of a law that was passed 2 years ago that did away with carryover funds. And the way the law is written, it says that you have to file your post election report no later than 30 days after the end of the month in which your name appears on the ballot. Now, if there’s a March primary it’s not a problem because you file your report on April 30th. Which is the last day of the month. If it’s a May primary it’s not a problem because you file your report on June 30th, which is the last day of the month. If it’s a general election, you have to file your report on December 30th, which leaves a 1 day gap. So I prepared this bill. Instead of saying 30 days after the end of the month in which your name appears on the ballot, it says the last day of the month after the month in which your name appears on the ballot. It was Representative Evans’ bill 2 years ago that created this unintended consequence. So I visited with Representative Evans about this. He supports this. He’s the House sponsor of the bill. I’ve also visited with the Ethics Commision and Graham Sloan. The primary concern that Mr. Sloan raised is just to make sure that if you are raising or spending money after election day for a future campaign that you still have to file that report as well. So that’s what Section 2 does, that language came straight from Mr. Sloan, which I put into the bill. And that’s basically it. It’s just to close that 1 day gap so that candidates with general elections don’t have to file a no activity report for December 31st only. That’s the purpose of the bill.
Sen B Johnson: Any questions? Seeing no questions. You’re ready to close?
Sen Tucker: I appreciate a good vote and I move do pass.
Sen B Johnson: Alright, that motion is seconded by Senator Crowell. All in favor say aye. All opposed, like sign. Thank you, Senator. Next we will go on to Senate Bill 121, Senator Johnson? Oh, there he is. Go ahead, Senator.
Sen M Johnson: Thank you, Mr. Chairman, Committee. Senate Bill 121 is a clean up bill from the Arkansas State Capitol Historical Monument Protection Act, which was in 2021. Without trying to get too far in the weeds, I’m going to try to clarify. There was a definition of temporary that we needed to clarify. Also, and this is kind of what really led to this, if you, if I were a distinguished jurist in reading the existing statute I would have said this is not necessary. But because of some real life situations, a friend of mine who just happens to be a former Senator is now Circuit Judge in Fort Smith, said that the existing law did quietly– he could rule that a waiver had been sought and denied to reinstate a, in this case, a flag display. Which is defined in the law. But the law did not specifically authorize him to rule that the entity had to restore the previous display.
Now, you would think, again, I read this thing a 100 times I think, I came to the same conclusion, that it probably did give him the authority. But when in doubt you clarify. So the language you will see, and this is on the end of page 1 lines 34-36, that the court of competent jurisdiction shall enjoin the removal of the historical monument and memorial or and then move it back over to page 2, order the government entity having title to restore the monument to its original condition and location. And this is simply a clarification of what we did 2 years ago. And also section 3 would allow attorney’s fees if it were in the case of an entity that you could sue in circuit court, which doesn’t include the State of Arkansas, of course. You would be able, the judge could award fees, and if it is the State then the – going over to page 3, the Claims Commission would be able to award fees. So that’s really what the bill does. The substantive portion of the Monument Protection Act is not changed. Most everybody, except for Senator Crowell, was around when we debated this 2 years ago. Senator Payton was my house co-sponsor at the time, so I hope y’all are familiar with it enough that we don’t have to go back. Much of this language is simply a restatement of what I thought we had written very well 2 years ago. But the judge was a little unclear and we just want to help clarify that. So I’ll be happy to answer any questions.
Sen B Johnson: Any questions? Senator Tucker.
Sen Tucker: Thank you Mr. Chair. Senator Johnson, there’s a few words in here that I’m particularly keyed on.
Sen M Johnson: Okay.
Sen Tucker: On page 1 line 31, it says: ‘Monument or memorial is removed or has been removed’ so as in past tense.
Sen M Johnson: Yes, sir.
Sen Tucker: And then you go over to page 2 line 5, or really, lines 4 and 5. ‘Subdivision applies to historical monument or memorial removed before April 28th, 2021’. So the Monument Protections Act was passed in 2021, correct?
Sen M Johnson: Yes sir, and it was, and the reason for that magical date of April 28th, that was the effective date. And there were triggers in the Act, and – stop me if I’m getting further than you need to know. Any monument that existed on that date fell under the protection of the Act. Any monument created after that date could fall under the protections of the Act, but only if the entity that created it applies to the History Commision to have it included. Now let me give you an example. Let’s say some city in the next few years, there’s some young Arkansan that becomes a member of the Space Force and becomes the first human to set foot on Mars. And they want to do a monument to the Space Force. Then that entity that creates that monument would apply to include, have it included as one protected under the Monument Protection Act. The reasoning behind that was that some very wise lawyers pointed out to me that it could be a loophole that someone could use to say that something that was not intended to be a monument. They even mentioned what if someone wrote Adolf Hitler, World War 2 on a concrete block and threw it out in the yard of the courthouse. That someone could come along and say no you can’t remove that because it refers to World War 2, and it refers to a historical figure, therefore it’s protected. That was the prospective thing we were trying to avoid, that possibility. If it’s some, and if some entity, on the other hand, wants to put up a short-term monument of some kind. They’re not thinking about it being permanent. Then they would simply not apply to have it come under the protections of the Act. So that was the logic of it. I hope we’re not back tweaking this again another time, but that’s the reason for that date. That was the actual effective date, and anything existent on or prior to that date was covered under the bill.
Sen Tucker: Right. Really the only point I was getting at there is that the effective date was April 28th, 2021.
Sen M Johnson: Yes sir.
Sen Tucker: So, the way I read this, if a city or town, just pick a town. City of Dardanelle removes something, the way this is written, in 1963, then a citizen of Dardanelle could bring a lawsuit and recover attorney’s fees to have that monument put back to where it was when the city of Dardanelle took it down in 1963. Am I reading that correctly?
Sen M Johnson: Senator, only if the City of Dardanelle put it in a warehouse and still had possession of it. And that long a time, I’m, I don’t even want go into the common law iterations of that. And I trust good lawyers like you to help me figure that out. But the idea being that, like in this example of this flag display that was in this litigation, it was in possession of the city. It was just not being displayed.
Sen Tucker: So, taking the 1963, I mean, go to 2012, or 2015, or 2018 or whatever the case might be. The main thing I’m trying to cl– whether you liked the original Act or not, I’m not trying to re-debate that Act. I want to clarify your intent is for this, I understand the rationale for passing a law, having it apply prospectively from that day, moving forward. Because people have clarity, they have expectations. They know what the law is when they act. I have a philosophical problem with passing a law that goes back in time. And what I’m trying to clarify is, is it your intent for this law to go back in time? For something, to put something back up that happened before the effective date of the Act. Is that your intent?
Sen M Johnson: Let me answer it this way Senator Tucker. The language, the April 28th, 2021 date is in current law. It’s restated in the bill just to clarify that that, it is restated in the new language related to the clean-up we’re trying to do. But if this bill didn’t pass, what you just pointed out, would not be resolved one way or the other. And I’m hoping that, surely there’s got to be a way to, whether it’s through some kind of a – I don’t think it’s ex post facto in any way. But there may be some common law things. The intent was, clearly, that if you took down a monument and stuck it in a warehouse then, for purposes of the Act, it’s still a monument. Now if it’s sold, destroyed, disposed of, it’s just the way. And obviously something could have been done without being in bad faith. It was just forgotten about. And you just pointed out an instance where, sometimes we need to go back and look at these things. But I don’t really see it as a problem. But the issue you bring forth is under existing law would still be there and the bill wouldn’t change that particular part of it.
Sen Tucker: Okay.I don’t think ex post facto applies because that’s just criminal law. But I think the rationale still applies, which is that people need to know what the law is when they act. And if you’ve changed the law after they’ve acted, you can’t go back and say hey, if someone sues you over this, you’re going to lose and you’re going to have to pay their attorney’s fees for something you did before this law was passed. So, anyway, that’s my concern. And I take your word for it that it’s in existing law. But that’s my concern with this particular bill.
Sen M Johnson: Okay. Thank you, sir.
Sen B Johnson: Any other questions from Members? Seeing none, I have– oh, Senator Dotson?
Sen Dotson: Thank you Mr. Chair. Senator Johnson, this was the area that I was talking to you about before. I think the “before” word on page 2 line 5 is the one that I have probably the biggest concern with. Is the going back in time. Page 2 line 5 it says “removed before April 28th, 2021” that date certain. I mean, I don’t know how we can do that. If it’s removed after, on or after April 28th, 2021, I think the law would apply but this is going back in time. I think prior to, and I, I kind of have a challenge with that. So, I listened to your explanation to Senator Tucker but I still have that same heartburn we talked about earlier.
Sen M Johnson: Senator Dotson, the bill passed and it was an emergency clause. And the effective date therefore was the date approved by the governor and that was April 28th, 2021. So it’s not an arbitrary date, it had to do with the effective date of what is now Act 1003 of 2021. So we didn’t –
Sen Dotson: Right, but it was everything from that day, as effective date, going forward. So anything that was in place at that point in time. But if something had been removed or. You’re potentially opening it up for everyone who has whatever is deemed as a historical monument to go back and restore something to a location that may not even exist any longer. If a building has been put in its place, what is a city supposed to do if they’ve sold the property and it was a monument that they have in storage. It was removed 10 years prior to the effective date, and they sold the land, and another building has been put on that location. Do they have to go tear down the building and restore the monument to that location because of this law?
Sen M Johnson: I’m trying to find the definition in the previous law but it specifically stated, and I believe I can find it. “An historical monument in existence on the effective date of this Act is considered an historical monument for the purposes of this subchapter” and then it says, “an historical monument not currently displayed by public entity is considered an historical monument for the purposes of this subchapter” now that’s from the existing law of Act 1003.
Sen Dotson: But your language here says that it, I’m missing where it’s at. Oh, it’s line 3 on page 2 right above it, it says that “it will restore the historical monument or memorial to its original condition and location”. So if it was in storage as of April 28th, 2021, is the original location in storage?
Sen M Johnson: No, the original location was where it was displayed. However, this is where the waiver could be sought from the History Commission. Let’s say the street had been widened. As long as its, that’s the kind of waiver they could grant. That it would simply be a convenience location because the streets not 2 lane anymore , it’s 4 lane. You don’t have to build the – you don’t stop construction of a water main or a street over this. But that –
Sen Dotson: Yeah, and I like the waiver aspect of it. Because those are for like, unanticipated,
Sen M Johnson: Yes sir.
Sen Dotson: Unintended consequences. But this is an actual legitimate consequence that’s likely to happen in certain instances. I don’t know. I would feel a whole lot, I think you got the beginnings of a really great bill, but as long as it’s on or after April 28th, 2021.
Sen M Johnson: Well, let me ask the Committee. If you take Act 1003, the 2021 bill, in context, it speaks on page 6 of the Act, it speaks to the historical monument in existence on the effective date of the Act, which is the April 28th, 2021 date. And then it speaks that “Historical Monument not currently displayed is considered a monument for purposes of this subchapter” and that’s, once again, as of April 28th, 2021. If the Committee would prefer, I do not mind deferring this, talking to the Bureau about some clean-up language. I think it’s clear, but I want y’all all to be happy with the language. And I’ll be happy to hold off until we can clean it. If y’all would please help me come up with something. Senator Tucker is a great lawyer, and he catches some way oh, you can use this word and it would fix it. I’m open to that, and would be happy to do that.
Sen Dotson: Thank you.
Sen M Johnson: We’ll go off the Committee.
Sen B Johnson: Thank you Senator. If there’s no,–you’re not going to, you’re going to continue or? Okay, question by Senator Payton.
Sen M Johnson: Yes sir, go right ahead.
Sen Payton: Thank you Mr. Chair. So when you look at the language, it has been questioned here, containing the date. It’s line 4 and 5 of page 2. And that date only applies to subdivision F-3-A. The only part of this law that’s subject to being prior to April 28th, 2021 is subdivision F-3-A. So if you scroll back up to the bottom of page 1, line 29, that is F-3-A. So, the only thing that is subject to being prior to April 28th of 2021, is if a waiver is not granted.
Sen M Johnson: Yes sir. That’s correct.
Sen Payton: So number 1, if a monument from 1963 is being fussed about, the commission can grant a waiver, and that goes away. Number 2, if they decide they don’t want to grant a waiver for a monument from 1963, then it says that it can go to a court of competent jurisdiction. And be settled in court, which I would hope that a competent court, a court of competent jurisdiction would also be a competent court and would ignore a frivolous lawsuit like that. So is it your understanding that it only applies to subdivision F-3-A, and that the commission can avoid any frivolous action by granting a waiver?
Sen M Johnson: I think now, Senator Payton, everybody understands why I wanted you to be my House Co-Sponsor on this. Because you saw through it and you see exactly the point.Yes sir, that is correct. Although on the other hand, it’s important to note that we very carefully did not grant waiver authority to the History Commission except under specific delineated circumstances. For example, if the Commission was made up of people who just didn’t like a particular monument for whatever reason, they could arbitrarily allow it a waiver or not allow a waiver based on that. The purpose of, and it’s spelled out in other parts of Act 1003, but it has to do with instances such as I described, like where we’re going to build a new street or we have a broken water main and we have to totally relocate utilities. And we need to, might be moving the same exact monument, but moving it over 40 feet or something like that. That’s what was envisioned in it, not giving a blank check to the History Commission or any other agency level that could basically do an end run on the law. So, with that exception, what you stated is absolutely correct. It has to do with the end product of this process, which is action by the Commission to deny or grant a waiver. And then someone goes into circuit court, that would be the court of competent jurisdiction. That Judge would rule based on that, and his ruling would have to be carried out. Up or down, his ruling would be order, and he could issue a writ of mandamus to whoever to carry forward with it. Now, you summed it up perfectly, and if that pacifies everyone, I would go ahead and get it out today. If you’d still like me to chew on this a little bit more, and go back to the Bureau, I’d be happy to. But I do appreciate you, Senator Payton, bringing forth that clarification. Because it does definitely just apply to that F-3-A A-I– has to do with when it gets into the waiver process.
Sen Payton: Thank you. Thank you, Mr. Chair.
Sen B Johnson: So any other discussion from my members?
Sen Tucker: I appreciate the discussion. It doesn’t pacify my concern. Because it still says that if a waiver is not granted, which may not happen, and it has been removed, which is in the past tense. I totally understand what Senator Payton is saying, it is limited to this subsection, but it still says if it has been, whether it was 2020, 1910, whatever the case might be. If it has been removed and no waiver is granted, then a person can sue, and they can recover attorney’s fees. They can win a lawsuit and recover attorney’s fees for something someone did that wasn’t against the law when they did it. I still have the same, I understand it’s more limited, but I still have the same concern.
Sen M Johnson: Mr. Chairman, I will work with my friend Senator Tucker, who works with me very well on many things. And we’ll come up with something that passes the Clarke Tucker test, and I’d feel like it could go to the US Supreme Court if it’d pass that test. So I will pull it down for now.
Sen B Johnson: We have 2 that were signed up to speak against it. Have Mark Whitmore and Lenny Richmond the 2nd. Do y’all want to speak now or wait? I would advise wait. So alright, if you’re going to pull it down.
Sen M Johnson: Yes sir. We’ll pull it down. We’ll clean it up.
Sen B Johnson: Alright. Thank you, sir.
Sen M Johnson: Thank you, Mr. Chairman. Thank you, Committee.
Sen B Johnson: We will go to Senate Bill 71, Senator Sullivan? We have an amendment to pass out. Give the members just a little bit of time to digest the amendment, since the amendment’s longer than the. Senator, I would ask that you go through this amendment line-by-line for the members.
Sen Sullivan: Okay, will do. The first line would be the Title “To Prohibit Discrimination or Preferential Treatment by the State of Arkansas and Other Public Entities”. And I think that’s very important. This only applies to the state. If you’ll look at the start there in Section 1, there’s a lot of stricken language here. Section 2 talks, strikes equity and talks about equality, and at the end of that it talks about, strikes some language, affirmative action language. And uses non-discrimination language. And you’re going to see that through that bill several times. Where it strikes civil rights, and strikes affirmative action, but refers to desegregation and non-discrimination. And again it references, that references the Title and that’s the purpose of the bill. It’s to prohibit discrimination or preferential treatment. If you’ll, again, you look in Section B there of that, it replaces civil rights with desegregation and non-discrimination responsibilities. That is again repeated in Section 2 and again in, I’m sorry, in C, 2, and then D. I’ll go to the 2nd page. Again it strikes, if you’ll see the very 1st part there in E. It strikes civil rights, but replaces that with desegregation and non-discrimination. And then Section 3 Part 1, again replaces equity with equality. And then Section 4 it strikes a lot of language there that references back to those previous laws.
By the way, we worked closely with the Attorney General’s Office on this. You’ll see on Page 3, again it strikes a lot of language. And this deals primarily with our educational system, state education system. And I’m assuming if you have questions on a certain line just. I’ll stop at the end then come back to questions. Or if you prefer you can ask them immediately. But again, we’re striking, I’m on Page 4, Section 6 we’re just repealing language based upon the former code that we’re replacing. And if you’ll look on Page 5, another comment or language where we replaced. If you’ll look in Section 9, it talks about “there is established the critical need minority teacher” and it just talks about the “critical needs teacher”. So again we’re removing preferential treatment or discrimination. If you’ll look in that Section 9-B, where again it talks about the purpose of the program is to attract qualified teachers to the Delta. I think everyone knows we have a hard time getting teachers to the Delta, whether they’re minority or other. And this bill seeks to attract everyone, and not discriminate against others. And if you’ll look on Page 6, in B, it talks about critical need teacher scholarships. So minorities would fall, still fall within that critical need category. I would assume. In Section 11, the same thing. In Section 13, the same thing. In Section 14, the same thing. We’re trying to attract teachers into critical need areas and not discriminate against any teacher that would like to apply.
I’m on Page 7. Again, very first line there it talks about critical need teachers. In Section 18, it talks about equal employment and hiring programs. Again it strikes language that is specific to or eliminates discrimination. And then the, towards the bottom there of the last part, it talks about the State of Arkansas does not discriminate in access to employment opportunities. So this eliminates all the sections, and all the stricken language, was examples where we do discriminate and are selective in who we can apply. When you get over to Section 20, that’s the new lang – I think that’s the start of the new language. Mr. Chair, I don’t really need to go through that at this time.
Sen B Johnson: Is that it?
Sen Sullivan: So that’s the end of the amendment. And I would say as an overview, this language has been adopted in 7 states. We would be the 8th, I think, to adopt this. It has passed constitutional review, excuse me, by attorneys at that level and there are no court challenges at this time saying that this action is unconstitutional. And I’d be glad to take any questions.
Sen B Johnson: Question by Senator Hester.
Sen Hester: I guess, right now we’re just about to amend the bill, is that correct?
Sen Sullivan: Correct.
Sen Hester: And then, it would be your intent to vote on the bill today?
Sen Sullivan: Yes.
Sen Hester: You know how the, going from 1 page to 9 pages, and then voting on it. I’m with you. I have some friends that I very much value their opinions that are never going to be for this bill. But I do very much value their opinion on this, I just wanted to clarify that. I’ll go on to the bill in a minute, but, it’s the appropriate time I make the motion that we accept the amendment.
Sen B Johnson: Senator Payton?
Sen Payton: That’s what I was thinking, for adopting the amendment.
Sen B Johnson: So we have motion and a motion by Senator Hester, second by Senator Payton for adoption of the amendment.
Sen Tucker: Can we ask questions about the amendment before we vote?
Sen B Johnson: Yes. Go ahead.
Sen Tucker: Thank you, Mr. Chair. I just have the same concern that Senator Hester raised. I just wished we had an opportunity more than just a couple minutes to review this and visit with people about it. I’ll totally defer to you, Senator Sullivan, on you getting the bill. Your own bill in any shape that you want it, whether I like it or not, but I’ll defer to you on that. But it’s a little bit unfair to the members of the Committee, I feel like to go from a one and half page bill to a 9 page bill and then expect us to vote on it at this moment. I understand what you’re trying to do here. But there’s still other parts of the code that aren’t included here. For example, there’s a minority in women owned business development in Title 15. Which in my opinion is good law. And if it creates a commission in the A-E-D-C essentially, to try to make sure that minority in women owned businesses get’s certain amounts of state procurements and contracts and that sort of thing. But people who, if your bill passes as amended then, if that office does what it’s required to do under that Act, then they’ll be guilty of a crime and can be sued and held liable. So I just, I have concerns about the bill. I have concerns about the amendment; and have concerns about the process so, you know.
Sen Sullivan: Sure, can I respond to that?
Sen Tucker: Please.
Sen Sullivan: I think the points you’re making are valid and if the amendment would be adopted today then I’d be willing to back off and give people a few days to talk about the bill and I thought I sent you a copy of the amendment. Maybe I didn’t. But I thought I did. But I think it’s valid to be, for it to be open to the public, for people to view and talk, I’ve got conferences later today on the bill. But if the Committee would adopt the amendment, then I’m willing to, if that’s the will of the Committee, to back off and wait for further review.
Sen Tucker: And you may very well have said to me, and I may have missed it. And if that’s the case I apologize, but I’m totally good with adopting the amendment if it’s engrossed. And I don’t know how that process works, if it gets engrossed so that the members of the Committee can view the bill as amended, as well of course, as the members of the public. Would it be engrossed if it’s adopted?
Sen B Johnson: I think Senator can pull it to the floor for engrossing. (Inaudible)
Sen Payton: Thank you Mr. Chair. So if we’re on discussion of the motion on the floor to adopt the amendment. I’d like to say that normally I’d be all completely interested in engrossment, but in this case it’s very easy. The original bill became Section 20 in the Amendment. So the only engrossing is just, sliding the original bill into Section 20 of the Amendment. It’s a pretty easy read.
Sen Tucker: Is the amendment on the website?
Sen Dotson: Probably not.
Sen Payton: It would be if we adopted it, wouldn’t it?
(Inaudible)
Sen Patyon: Okay, thank you.
Sen Sullivan: I think the amendment, it filed yesterday. I would think the amendment would be on the website. Yeah, the effective Act is that we’re eliminating, effectively eliminating, affirmative action and make, in reality making affirmative action available to everyone. Not just a select group. Which it says in the Title “To End Discrimination” that’s what’s in the Title. That’s the effect. So if those that are familiar with affirmative action, this bill effectively ends that.
Sen B Johnson: Senator, possibly, rather than adopt it in here for clarity. You could pull it out onto the floor and amend it for engrossing, and then, and it can be placed back into the committee as engrossed. That would probably be clarity for what you’re wanting to do and the public. That’s just a suggestion. We have a motion and a second on the floor in our Committee here, but if for clarity, then that’s probably the procedure that would make it more clear. That way it would come back into Committee engrossed. You could do that.
Sen Sullivan: That would be my preference, to bring it back to the Committee engrossed. And I, again I appreciate what the Committee chooses to do, but I think it’s important that people have an opportunity to discuss that I really think that they, I don’t know that people are going to change their mind after reading this. That’s not going to happen. People are pro-affirmative action or against the bill. And seeing this isn’t going to change anything. Those that are open to, as the bill suggests, this is ending affirmative action and ending discrimination. I think they’re pretty set in their ways too. So I’m open.What’s the will of the Committee? I heard a motion to accept the– and a second I think to accept the amendment? So I’m–
Sen B Johnson: We have a motion and a second, but for clarity, how do you want to proceed? You could pull it back to the floor and amend it at for engrossment and then bring it back to the Committee.
Sen Sullivan: I’d like to, I’d like for the amendment to be accepted.
Sen B Johnson: Mm-hmm
Sen Sullivan: And I’m willing to pull it down, have it engrossed, and then come back to Committee.
Sen B Johnson: I don’t think that’s –
Sen Sullivan: Is that the option?
Sen B Johnson: I don’t think that’s the option. You –
Sen Sullivan: Then my preference would be to hear the bill today.
Sen B Johnson: Okay. So, we have a motion and a second for the amendment. All in favor say aye. All opposed like sign. Your motion for your amendment passes. Do you want to wait?
Sen Sullivan: I’d like to hear the bill today.
Sen B Johnson: Okay. We will proceed then after the –
Sen Sullivan: You have seen the amendment, and if you’ll go to the Section 20, which is added there. The important parts there is “to prohibit discrimination or preferential treatment by state entities”. So this only applies to the State. It doesn’t apply to private businesses. And it lists there on line 26 and 27, those institutions. And then it repeats in line 30 “the State shall not discriminate against” and it lists those issues there on 34 “this section applies only to an action taken after the effective date of this Act”. So this doesn’t reach back and affect any decisions made prior to the date when this bill becomes effective. And then on line 36 it says “this section does not” and then if you’ll, on line 1 “it does not prohibit consideration of the State by bonafide, qualified based on gender that are reasonably necessary to the normal function of the employment”. If you look on number 3 it doesn’t prohibit any action necessary to establish or maintain eligibility for Federal Programs. If an eligibility would demonstrably result in the loss of federal funds.
You can read those. Again there’s a lot of sections where this just doesn’t apply. Had a couple of really good questions, One question, I’ll try to get out in front of the questions, you want to follow up. But we have some of our Higher Ed institutions award scholarships or award benefits, and if an individual wanted to write a check for a college athlete or other, musician, band, whatever. If they wanted to write a check for a scholarship, and that went through a foundation, this does not affect foundations. If that individual wanted to write a check for a certain profile. I want to write a check for a scholarship that promotes, and fill in the blank, maybe a race or a gender. That would be very questionable. Just like we wouldn’t want the State saying this scholarship applies to anybody except people of a certain gender or race. So that’s the discriminatory language that we’re trying to put in there. It encompasses, and again, this has been vetted at the national level. We would be the 8th state to put laws like this, non-discrimination laws in effect. I think it’s necessary. I think the time has come to do that. And I’ll be glad to answer any questions.
Sen B Johnson: Senator Dotson.
Sen Dotson: Thank you, Mr. Chair. Senator Sullivan, just for clarification, because I think I’ve read every word and compared them. But Section 20 is the original bill, there were no changes between Section 20 and what was originally filed correct?
Sen Sullivan: Correct.
Sen Dotson: Okay, thank you.
Sen Sullivan: And the amendment just made – was more specific. And dealt with some specific entities and that. And it may not be all inclusive. There may be other issues out there that come up as a result of this. And if there are then we’ll correct them.
Sen B Johnson: Senator Tucker.
Sen Tucker: Thank you Mr. Chair. I have a number of concerns. Just from a philosophical standpoint, I don’t think you and I agree, which is okay. But I, if we pass this bill, what it basically says, is if it passes through the process and becomes law then the State of Arkansas is saying that discrimination no longer exists. Racism no longer exists. Sexism no longer exists. And there’s nothing more that we need to do to make sure that people that who have been historically discriminated against, and historically disenfranchised. There’s nothing more that we need to do to put them on equal footing with everyone else. I think that statement would be absolutely wrong and morally and factually. I think we have a long ways to go to make sure that people who have been historically discriminated against have the same opportunities that people like I do. And so I think this is the wrong direction for the state for that reason. I don’t think, look at what’s happening in America, I think that’s hard to disagree with.
Sen Sullivan: Can I disagree? Or do you want to continue? Go ahead.
Sen B Johnson: Just one second, Senator. Go ahead Senator Tucker.
Sen Tucker: Beyond just the philosophical difference that, I think, you and I have, I do have specific problems with the way the bill is put together. I don’t think there’s a lot of clarity in what’s being done through the amendment when you change how is critical defined, some things like that. A rather big problem that I have is what I mentioned. There’s a whole subchapter in the code that’s the Minority in Women Owned Business Economic Development Act. It’s not addressed in this at all. As with a lot of Acts there are several sections of code related to that. One of the sections of code talks about the purposes of the Act. And it says “the purpose of the subchapter is to support to the fullest all possible participation of firms owned and controlled by minority persons and women in State-funded and State-directed public construction programs and in the purchase of goods and services for the state.” I think that’s the right goals for us to have as a state.
And this of course moves in the opposite direction. There’s a lot in that subchapter; but just as an example, it says that “all state agencies shall attempt to ensure that the following percentages of the total amount expended in State-funded and State-directed public construction programs, and in the purchase of goods and services for the State, each fiscal year are paid to minority businesses, business enterprises and women owned business enterprises. For minority owned business enterprises, 10%. And for women owned business enterprises, 5%.” To me, those numbers in the law reflect the fact that we’re not yet where we need to be. Because obviously we have a much higher percentage of minorities in Arkansas than 10%. And when we set that as the goal. If racism were over, then it would basically work out to be where the percentage of contracts yielded and goods purchased to minority owned businesses would be about the same as the minority population in Arkansas. But our goal is much less than what the minority population in Arkansas, which shows we’re not where we need to be yet. And obviously, 5% for women is not even remotely close to the percent of population of women in this state. So to me, we need to have those goals to get back to, to get where we need to be, and we’re not even close to where we need to be yet, in my opinion.
And just the last thing I’ll mention, which I mentioned before, we’re creating a crime here. Whoever works at AEDC and does this will commit a crime under this law when they do their job. But not just for the folks at AEDC, if someone negligently violates this act. Most crimes require a mental state of intent or knowledge, or recklessness. There’s not a lot of crimes on the book that have a mental state of negligence. This is creating a crime for negligently violating this Act, so we’re subjecting State employees to criminal liability. Fines, fees, imprisonment, for negligently violating this Act in doing their job. And also subjecting cities, counties, local governments and the state government to attorney’s fees. So for all of those reasons, and you are obviously welcome to respond, Senator. I don’t really have a question. But for those reasons, those are all of my concerns and why I’ll be voting against the bill.
Sen B Johnson: Go ahead, Senator.
Sen Sullivan: Yeah, you effectively accused me of racism. And they, the statements that you’re making, that racism isn’t over, I agree. And sexism isn’t over. And if you’re, effectively again, I think you’re saying that this bill denies that. And since I’m presenting the bill, that I’m guilty of those things. And I take, I disagree with that strongly. I don’t think the bill does this. There’s nothing in this bill that says those sexism, racism, those other discriminatory things. There’s nothing in the bill that says that is true. So to characterize that is false in my opinion. This bill puts everyone on an equal field. If the purpose of affirmative action is to give people who are in need a course of action, that’s exactly what the bill says. The bill says “people who are in need qualify” and it doesn’t have to be based upon the race or a sex or a gender or whatever. This effectively puts everybody in the category of if you’re in need, this bill addresses that, and I think it’s very fair. And I think it’s more fair than what the current language is. As to whether or not there’s a crime committed and, we’re serious, we’re serious against racism, we’re serious against people being taken advantage of, or not having a seat at the table. We’re serious about that. And if you’re going to treat people differently, then we’re not going to stand for that and there will be a crime and a penalty. And we expect our State employees to take it seriously, and make sure we don’t do that. And I think that the example that was brought up about the athletic scholarship. Yeah we would never stand for someone donating to a state institution and saying ‘we’re going to put this scholarship out there to everybody but Jews. Jews can’t get it.’ Or we’re going to put this scholarship out there, for everybody except for, and fill in the blank. We don’t want discrimination at any level, and that’s what this bill does. And I’d appreciate a good vote.
Sen B Johnson: Any other questions? Give a lot of leeway there, Vice-Chair. If there’s a question, you’re more than welcome, but. Is there any other questions from Members? Seeing none. You want to close for your bill?
Sen Sullivan: Again, I think.
Sen B Johnson: Oh. Hold on, hold on. I have one person to speak against the bill signed up. I apologize.
Sen Sullivan: That’s alright.
Sen B Johnson: Bernice Nazair? Would you come around and introduce yourself, and, just come around the, just go up. Senator, if you would. Show her how to push the button. Push your button so your mike is on.
Nazari: Alright, testing.
Sen B Johnson: And introduce yourself. Let the members know who you are, and who you represent and you’re welcome to voice your opinion against. Thank you.
Nazari: Alright.
Sen B Johnson: You pushed your button again. Just push it one time.
Sen Sullivan: It turns red, you’re good.
Nazari: Thank you. Hello, my name is Bernice Nazari. I am here representing the Black Chamber of Commerce and Community Development of Arkansas. We are a 501-C-6 Chamber of Commerce and a 501-C-3 Not-for-profit. I am the Vice-Director of the Little Rock region. Our concerns, also, I do operate a minority owned business that is certified through A-E-D-C, Kincare Painting. My father and I do have a family owned painting business, construction business. He is a native of Little Rock, out of Portland, Arkansas. A neighborhood that they call “Free Nigger Bin”, back in the day. Because this is one of the groups of people who gained their 40 acres and a mule from restitution from slavery. My great-great-grandfather then went on to buy an additional 60 acres of land, which we used to farm.
So I was actually born in Chicago and came back to, came to Arkansas to help my father with the family owned business, with the painting business. One of the things that strikes me the most is when he said that nobody, he didn’t really have a lot of support. Everything he learned, he ended up figuring it out on his own. My generation, with the help of the internet, and those other things, and also being probably from an urban city was exposed to a lot more things than even my cousins and families who do live here in Arkansas. What I find the biggest benefit of the minority business is, it did expose me to opportunities that I would not have been privy to, or exposed to. And I have a lot of collaborative partnerships because I work in the business community. We all work together beyond race. I will say that I personally felt like the minority owned business program was a great, kind of a substitute for restitution and reparations, because I felt supported by the state, by the government because of this program.
And it encourages me to encourage others around cooperation and collaboration, and even share my skills to help all people. I do have a young adult skill building program, which I call Place for Resources where I am helping young adults gain skills. But a big part of that exposure for me was because of the opportunities that came to us by way of the other opportunities from the minority women and minority owned division. I will say that, if you look at the chart of slavery and even like Jim Crow laws and the Black Codes. Those things were just a generation ago. My father was in a generation where Arkansas shut the schools down for a year because they didn’t want to support integration of the schools. That was in that same generation. Women also, in that generation, women also got the right to vote.
So the program, the affirmative action and the minority and women owned business programs, or programs period, have not even lasted a full generation. It is being effective. And I feel like this is a premature elimination of the program to allow it to work. I understand your concern around discrimination, but instead of removing a program that’s built to help other people in the equity division. There’s a lot a programs now around the DEI. What we learned is that equality gives everybody the same footing. But equity helps everybody get to the same space. Some groups need different levels of support, to get to the same playing field. Not necessarily equality, but the equity around that.
I would propose that, instead of removing the minority program, that maybe it’s an option to create programs to address specific needs of the people, or the persons, or the groups that are having trouble. Maybe if it is around education, class, or income status. And that was my contribution as a recipient of minority and women owned businesses. I am contributing back to the entire communities with the things that I’ve learned as a result of that. And as a result of the Black Community Development and our Chamber of Commerce we are also building programs to help, to contribute to the community as a whole. So that everyone benefits. And we are also aware of the need for equity and in contribution of that as well, we are also in contribution of that. Personally and as an organization, and even as our community. Thank you.
Sen B Johnson: Members, any questions? Seeing none, and we appreciate your input. Thank you very much ma’am.
Nazari: Thank you.
Sen B Johnson: Is there any other discussion? Or questions on the bill? Have no one else signed up. What’s the will of the Committee? Oh, you want to close for your bill. Sorry.
Sen Sullivan: Thank you. Yes, appreciate what the comments were. And that’s the goal of the bill. You heard the testimony that everyone should be included. You heard testimony that we work together beyond race. We heard testimony and questions about targeting certain groups who have been discriminated against. This bill directs that we end discrimination. Whether it’s race, or gender whatever those are, that this bill ends that discrimination and puts everyone on an equal foot. The bill has been successful in other states. Right now there’s a case before the Supreme Court on college admissions. And all the court watchers agree that the, most of the court watchers agree, that the Supreme Court will rule in favor of ending the quota system that we have in Higher Ed. That some have in Higher Ed. This bill directs us, puts us in the right direction. You heard the comment that this was maybe premature. I think it’s the right time. I think it’s time to move beyond being discriminatory towards some and non-discriminatory towards others. And we put everybody on an equal footing. That’s what this bill does, and I appreciate it.
Sen B Johnson: Thank you Senator. What’s the will of the Committee? Motion by Senator Payton. Second by Senator Dotson. All in favor say aye. Sure-oh. Vote do pass as amended whenever we –
Sen Payton: I’d like to vote do pass as amended.
Sen B Johnson: Second by Senator Dotson. Discussion?
Sen Payton: So, I’m in Business. And most people know that I run 2 auto auctions in this State. So the people I deal with, my customers, are businessmen and women who are car dealers. Used car dealers and new car dealers. The idea that you can’t start a business without a government contract, or without a government grant, is foreign to me. And my customers, the used car dealers in the State of Arkansas, the new car dealers of the State of Arkansas, are a very diverse group of businessmen and women of all colors and races. And I know that in recent years the business community has come to the State of Arkansas and the government for help over and over again. But the idea, just the business side of this and I know it’s broader than that, but the idea that you can’t succeed without government intervention, regardless of your race or your gender, is foreign to me. I know that in years past, you read history books and that was probably true. But I’m getting on up there in years, and I started in business in the early ‘80’s, and I just haven’t experienced that. And I’ve been among crowds that were very diverse in my business experience. I just appreciate the bill, and I’d appreciate a good vote.
Sen B Johnson: Other members?
Sen Tucker: [inaudible]
Sen B Johnson: Alright. Senator Tucker.
Sen Tucker: Thank you, Mr. Chair. I’ll be very brief. Couple things I want to say. Number one is it certainly was not my intent to accuse you of racism, Senator. I do think the message the bill sends is that racism is over. I don’t that makes, you can disagree with that, and I respect that. But I don’t think that is an accusation of racism, and I, at least that’s not the way that I intended it. So I just wanted to say that for the record. Beyond that, what you’re talking about, if you say, for example, if someone said we’re going to set up a scholarship program for everyone but members of the Jewish community I think that’s already illegal.We couldn’t do that under current law, under the Civil Rights Act, The Equal Protection Clause –
Sen B Johnson: Senator Tucker, this will be a discussion amongst our members, not to presenter. So, please direct those comments because, he’ll want to reply and that’s not this time or discussion. So, just amongst the members, huh?
Sen Tucker: So, okay. Thank you, Mr. Chairman. I just wanted to mention those couple things and I don’t think there’s anything in current law Senator Payton, that says that you can’t succeed without government help or intervention. We just have a few laws on the books that say, because of historical disenfranchisement and discrimination, which I don’t think anyone can dispute, some people just need, we need a little more focused attention to make sure that you have the same opportunities that everyone else has had. I still think we need those laws, and we’re moving in the wrong direction by passing this bill.
Sen B Johnson: Any other discussion? We have the motion and a second. All in favor say aye. All opposed like sign. Senator, your bill passed, as amended.
Sen Hester: Mr. Chairman?
Sen B Johnson: Yes sir.
Sen Hester: So I think for everybody knows this will go to our floor the day over there. But it will sit there for a day to be amended and engrossed, so this, pending whether the next day we have session it will sit on the floor to be engrossed. Then will actually be voted on, thanks.
Sen B Johnson: So, Senator Dotson, did we do 180 already or not?
Sen Dotson: We didn’t yet, no.
Sen B Johnson: Go ahead Senator.
Sen Dotson: Thank you Mr. Chair, members of the Committee. Senate Bill 180 is basically a real quick clean up bill on an international term the DFA brought to me to adopt. Basically the new terminology by the Government Accounting Standards Board. I’ve got DFA here if there’s any questions, but it’s not really an incredibly complex bill. More than happy to try to answer any questions if you have any.
Sen B Johnson: Any questions? So, it’s pretty much a clean up bill, Senator?
Sen Dotson: Yeah, it changes the order of words basically. It puts “comprehensive annual financial report” instead of “annual comprehensive financial report”. So the acronym is different.
Sen B Johnson: Any questions? No questions.
Sen Dotson: I’m not aware of any opposition to it.
Sen B Johnson: No one signed up to speak against it. What’s the will of the Committee? Motion by Senator Crowell.
Sen Dotson: Second.
Sen B Johnson: Second by Senator Dotson. All in favor say aye. Any discussion? All opposed like sign. Go ahead. Is there anyone here to do House Bill 1164, 1163, or 1099.
Sen Payton: 1099.
Sen B Johnson: Alright, let’s go to 10 – House Bill 1099.
Sen Payton: Thank you, Mr. Chair. Not sure how I feel about presenting a bill that’s a 1099, but.
Anyway Representative Collins contacted me several weeks back. And part of our laws concerning FOIA had a terminology there that if you wanted to get an Attorney General’s opinion on documents that you had requested that had been denied, that you had to immediately appeal to the Attorney General for the opinion. That, at some point, was interpreted to mean within 24 hours. And so Representative Collins wanted to clear that up in the law and state 24 hours. However, after visiting with our Attorney General, we thought it more prudent instead of stating 24 hours to say before the close of the office of the Attorney General the following business day. So it could happen on Friday afternoon and 24 hours would expire on Saturday, and there’d be no opportunity to ask for this opinion. It’s just clarifying language to make sure everybody knows that they need to make that application very quickly and that is defined as by end of business the following business day at the Attorney General’s office.
Sen B Johnson: Any questions? Seeing None, you want to close your bill.
Sen Payton: I’m closed and move do pass.
Sen B Johnson: Alright. Motion by Senator Payton do pass. Second by Senator Crowell. All in favor say aye. All opposed like sign. Thank you, Senator. Seeing no other business, no one to present the other House bills. Any other business to come before the Committee? Seeing none. We are adjourned.