Getting Fired In The Natural State

An Administrative Order entered by the Arkansas Supreme Court on January 3 underscores the tensions among the members of that august body.

The controversy involved the authority of the newly-instated Chief Justice (the first female to ever hold the position) to terminate court staff.

Reasons recited for the order

Certain events have recently transpired that require formal, written procedures for when a court or AOC employee may be terminated. These rules will provide a transparent process for employees and court members to follow in the event that termination is required. Sunlight—in the form of a written policy—provides the best process.

The events giving rise to this order have been percolating but came to a head on January 2, 2025, when the Chief Justice of the Supreme Court of Arkansas called the Director of the Administrative Office of the Courts (“Director”) and the Director of Emergency Preparedness and Chief of Supreme Court Police (“Police Chief”) into her office for a meeting. During the meeting, the Chief Justice confronted the Director and Police Chief about their responses to Freedom of Information Act requests involving her. The Chief Justice noted that she had prepared letters of termination for the Director and Police Chief, but was unsure whether she would fire them.

The next day, January 3, the Chief Justice intercepted the Police Chief as he walked into the Justice Building and purported to fire him. The Chief Justice had also prepared termination letters for at least ten (10) other employees of the Administrative Office of the Courts, including the Director. The Director, however, serves at the pleasure of the entire court, not the Chief Justice alone. Ark. Code Ann. § 16-10-102(a)(2).

Specifically, the Chief Justice attempted to terminate the following employees:

• Director of Administrative Office of the Courts; • Director of Emergency Preparedness and Chief of Supreme Court Police; • Juvenile Justice Division Director; • Director of Alternative Dispute Resolution Programs and Director of Judicial Education; • Director of Finance and Administration; • Legal Services Division Director; • Court Information Systems Division Director; • Court Information Systems Division Deputy Director; • District Court Staff Attorney; and • Administrator of the Commission of Children, Youth, and Families.

If carried out, those terminations would disrupt the administration of justice across the state of Arkansas. The Chief Justice did not notify—let alone consult—the court before attempting to unilaterally fire these long-tenured court employees. After learning of the attempt to terminate these employees, a fellow justice asked the Chief Justice to meet with other members of the court to discuss her decisions. The Chief Justice refused. Four members of the court then renewed the request to discuss the attempted terminations, and the Chief Justice again declined. Yet when asked why these ten employees were being terminated, the Chief Justice stated that she had “millions of reasons.” Then, when asked about those employees’ families and the fact that they were scared and fearful, the Chief Justice responded by saying that it was “good” for those employees to be scared. The Chief Justice then ended that discussion.

Not once did the Chief Justice articulate a specific reason for firing any of these employees, either to the full court or to the employees themselves. Some of these employees have pending human-resource complaints against the Chief Justice for recent incidents. And the Chief Justice has attempted to terminate the recipient of these complaints, the Director of Finance and Administration. These terminations therefore appear to be retaliatory. And given the uncertainty these terminations have created and the potential disruption of the administration of justice, the court hereby adopts the following Administrative Order.

This situation is unnecessary and unfortunate. The court thanks the employees targeted for termination for their service and offers its sincere apologies to their families for this situation. And the court appreciates their continued service to the people of the Natural State.

Order

Absent express statutory authority to the contrary, the Director of the Administrative Office of the Courts holds sole responsibility to hire and terminate the staff of the Administrative Office of the Courts. Arkansas Code Annotated section 16-10-102(a)(2) also provides that the Director of the Administrative Office of the Courts is “subject to the approval of the Supreme Court and the Arkansas Judicial Council, Inc.” and “serves at the pleasure of the Supreme Court.” The Director therefore cannot be terminated without the express consent of at least four members of the Supreme Court.

As it relates to employees of the Administrative Office of the Courts, no employee of the Supreme Court of Arkansas or the Administrative Office of the Courts shall process any termination letter, restrict access to physical space, restrict access to information-technology services, cut off payroll, or otherwise restrict employment activity without the express approval of the Director of the Administrative Office of the Courts.

As it relates to the Director of the Administrative Office of the Courts, no employee of the Supreme Court of Arkansas or the Administrative Office of the Courts shall process any termination letter, restrict access to physical space, restrict access to information-technology services, cut off payroll, or otherwise restrict employment activity without the express written approval of at least four members of the Supreme Court of Arkansas.

The Clerk of the Supreme Court and Reporter of Decisions also serve at the pleasure of the entire Supreme Court of Arkansas. Ark. Const. amend. 80, § 2(F). The Clerk and Reporter cannot be terminated without the express written approval of four members of the Supreme Court of Arkansas. The Clerk and Reporter retain hiring and firing authority for members of their staff, subject to notice to the entire court. Absent an emergency, any terminated employee may be reinstated within three days if at least four members of the Supreme Court have given express written notice.

Each justice has hiring and firing authority for his or her immediate chambers staff, which includes two law clerks and a judicial administrative assistant. No other Supreme Court of Arkansas employee or Bar of Arkansas employee may be terminated without the express written approval of four members of the Supreme Court of Arkansas.

Any terminations that have occurred on or after January 1, 2025, in contravention of this order are hereby rescinded, effective immediately.

Enforcement

The failure to abide by any provision of this order may result in a citation for contempt.

The Chief Justice and Justice Hudson did not participate in the order.

Arkansas Advocate had background on the controversy

In August, Arkansas Business sent AOC a FOIA request for emails between Hudson and Lisa Ballard, the former head of AOC’s Office of Professional Conduct. Ballard and two other employees left OPC in short succession in May. Her personnel file, which was obtained by the Advocate through a FOIA request, did not include a letter of resignation or list a reason for termination.

Hudson sued to block the release of the emails, and the other five justices referred Hudson and her attorney to their respective disciplinary commissions for “flagrant breaches of confidentiality” by filing emails of other justices into evidence in the lawsuit. Baker dissented, saying the other five justices had “a fundamental misunderstanding” of the FOIA and had damaged the Supreme Court’s credibility. Hudson later made the emails public.

Arkansas Times was critical of the order

The justices who issued today’s opinion simply whipped up a new rule, effective immediately, that makes it impossible for the chief justice to unilaterally fire AOC staff. Their opinion gives the court as a whole the power to rescind any terminations by a simple majority vote. The new rule also threatens to hold in contempt any staff members who don’t comply.

Internecine squabbles at the Arkansas Justice Building are certainly not a new phenomenon; the court publicly aired a lot of its dirty laundry in recent months during a fight over Justice Hudson’s emails and the Freedom of Information Act. And, much like the Hudson FOIA fight, today’s opinion seems designed to embarrass Baker and not-so-subtly warn her that she cannot exercise power without the consent of a majority of the court.

It is difficult to look at this and not see traces of sour grapes and retaliation against Baker by other justices. After all, Baker defeated Justice Rhonda Wood for the chief justice seat, despite Wood being heavily favored in name recognition and money. Baker was also aligned with Hudson during the FOIA fight in September.

Barely three months ago, the court referred Hudson and her attorney for possible discipline for including internal court communications as exhibits in a lawsuit. Today, the court is quoting from internal conversations between Baker and other justices (though, curiously, without identifying which other justice(s) were involved). 

Regardless of how one feels about the possible termination of the listed court employees, the court’s handling of it is messy. After all, sharing confidential internal communications — which they already attacked a fellow justice for doing — to accuse the chief justice of doing something that technically didn’t break any court rules, is hypocritical, even for this bunch.

(Mike Frisch)