Pulaski County weighing choices for dealing with sheriff’s seemingly unlawful contract with TV producers

When does an settlement develop into a contract? That appears to be the edge disagreement between Pulaski County Sheriff Eric Higgins and County Choose Barry Hyde concerning the filming of a Netflix reality show in the Pulaski County Regional Detention Facility.

The trailer for “Unlocked: A Jail Experiment,” which was launched on March 13, describes the as-yet-unaired present as “a radical social experiment to grant males who’re incarcerated extra company” inside a unit of the jail. The eight-episode sequence will premiere on April 10.

In August 2022, Higgins signed an settlement that allowed a crew with Fortunate 8 TV, Inc., to movie contained in the jail. The sheriff has since informed the Arkansas Democrat-Gazette that the document he signed was solely a “location release” that let camera crews and producers access parts of the jail to movie the present. State regulation provides county sheriffs the authority to permit third events right into a county jail on the sheriff’s discretion.

County officers, nevertheless, argue that the agreement between Higgins and Lucky 8 TV was a contract, no matter how Higgins describes it. “A contract is solely a written or spoken settlement that’s meant to be enforceable by regulation,” Pulaski County Legal professional Adam Fogleman mentioned by way of e mail to the Arkansas Occasions.

The excellence issues as a result of a sheriff doesn’t have the facility to enter a contract that legally binds a county, in response to each Fogelman and Higgins himself.

A number of provisions of the Arkansas Code “take care of county authorities, govt powers, and different county officers,” Fogleman mentioned by way of e mail. “The structure and statute set up the county decide because the CEO of the county charged with the administration, care and protecting of county property,” he added. “The county decide is the one one that can bind the county to a legally enforceable settlement.”

In line with Fogleman, different county officers solely have particular powers which can be given to them by the structure or by statute. “Nowhere in Arkansas regulation is there ever a reference made to a county sheriff signing a contract on behalf of the county,” he mentioned.

Higgins has not responded to questions from the Arkansas Occasions, however he has acknowledged to the Democrat-Gazette that he doesn’t have the authority to signal a binding contract on behalf of the county. “I acknowledge I can’t signal a contract, [but] what we did was a location launch, and we checked out it as a memorandum of understanding,” Higgins told KARK final week.

magistrate Phil Stowers is unconvinced by the excellence Higgins is making, nevertheless. “Whether or not it’s a contract or an ‘settlement’ is simply semantics,” he  informed the Arkansas Occasions. “It tries to legally bind the county, and that’s what issues.”

Hyde echoed Stowers’ sentiment. “[It’s] an unlawful contract,” he told the Democrat-Gazette after yesterday’s Quorum Court docket assembly. “It doesn’t matter what they thought it was,” Hyde mentioned. “It’s a contract.”

Whereas it appears clear that the settlement is a contract, and the legality of such a contract will nearly actually should be decided by a decide, Higgins’ declare that he  was not signing a contract in August 2022 makes little sense.

A yr earlier, he and Fogelman mentioned points and issues with a proposed contract that Fortunate 8 TV submitted in 2021. Whereas that contract was finally not signed, the county lawyer’s workplace and Fortunate 8 TV’s legal professionals mentioned the contract’s phrases, in response to a March 20 letter from Fogleman to Higgins:

You first notified me on December 28, 2021 by e mail of your ongoing communications with Fortunate 8 Productions and your need to cooperate within the manufacturing of a TV sequence. Between that first discover and thru the second quarter of 2022, the attorneys in my workplace and I engaged in good-faith negotiations with attorneys for Fortunate 8 to revise the language of its proposed settlement to guard the pursuits of the County, its staff, and the detainees to whom you owe a Constitutional obligation of care. These negotiations ended unsuccessfully.

Fogleman’s letter included the marked-up model of the sooner settlement that his workplace created in 2021, with this caveat: “Questions are contained within the doc, which displays that this [2021 draft] settlement was not a remaining, executable doc.” These questions embrace the place any hidden cameras can be positioned, which components of the jail facility the manufacturing crew would have entry to, what number of episodes had been more likely to be filmed and who the events imagine constitutes jail “personnel.” (The draft contract appeared to incorporate inmates inside that definition.)

Neither Fortunate 8 nor Higgins answered these questions, in response to Fogleman. However that silence raises a broader query about Higgins’ actions: Why ship the county lawyer’s workplace a proposed contract in late 2021, ignore the county’s edits and questions, then signal a distinct “settlement” in August 2022 with out having the county lawyer weigh in on the brand new doc first?

Assuming the settlement is a contract that Higgins had no authority to enter into, it’s not instantly clear what Pulaski County’s subsequent steps will probably be. “We’re discovering and analyzing the information of this difficulty,” Fogleman mentioned. “The County Choose, with the assistance of out of doors counsel, will analyze the knowledge and decide the best way to proceed.” Fogleman believes his office is conflicted out of representing both facet on this matter.

One difficulty that can require consideration is Pulaski County Sheriff’s Workplace deputies who could have been paid $40/hour to supply safety to the manufacturing crew throughout filming.

When this story first got here to mild, Higgins mentioned the one funds created from Fortunate 8 TV to Pulaski County had been $1,000 for every day of filming to offset prices.  But on Feb. 22, 2023, Lt. Denise Atwood emailed a memo to jail personnel “requesting extra deputies, sergeants, or lieutenants to supply safety” throughout filming. Volunteers had been to be paid $40 per hour by Fortunate 8 TV, in response to the memo.

Two deputies had been chosen in response to the sheriff’s workplace, although they weren’t included on the list of jail staff and inmates who took part within the filming, in response to a listing Higgins offered to Fogleman. Stowers told the Democrat-Gazette he believes this contradicts Higgins’ assertion about no cash altering palms apart from the $1,000 per day.

A bigger difficulty with such funds is that they seem like unlawful. On March 12, Fogleman wrote to Higgins regarding “the practices of certain deputies in off-duty employment,” which Fogleman mentioned was “legally suspect.”

Fogleman included with this letter a memorandum from a deputy county lawyer, which mentioned, “County property (i.e., uniform and car) can’t be used for a non-county or personal objective,” and “the regulation prohibits the receiving of presents or compensation for the efficiency of the duties and obligations in an individual’s workplace or place with the County from nongovernmental or personal entities.”

In line with the memo, it violates state regulation for a 3rd social gathering to pay jail employees to supply safety and safety within the jail whereas off obligation, since these obligations are a part of the workers’ common jobs. The memo cites Arkansas Code Annotated  21-8-801(a)(1), which prohibits a public worker from receiving “a present or compensation,” apart from their common wage and advantages, “for the efficiency of the duties and obligations of his or her workplace or place.”

The extra urgent concern for the county, although, is the best way to deal with the apparently unlawful contract that Higgins signed.

As a result of the sheriff lacks the authority to enter a contract on behalf of the county , this contract would nearly actually be void. If that’s the case, the county and Fortunate 8 TV must work out rights and obligations concerning the footage already recorded.

Moreover, lots of the inmates on the jail weren’t arrested by the Pulaski County Sheriff’s Workplace, however by metropolis, state or federal regulation enforcement. Not less than one inmate who participated was on the jail by order of the Arkansas State Hospital, the Democrat-Gazette has reported. If the present remains to be going to air as deliberate, the county should work out whether or not the businesses who arrested sure inmates are entitled to any say over whether or not a pretrial detainee could be on a actuality program whereas in jail.

Fogleman mentioned this concern in passing last week in an email to Higgins. Fogleman mentioned he had “obtained requests from a number of businesses for a listing of the detainees who participated” within the present and askedHiggins to ship that info so Fogleman might present it to the businesses.

The county may even have to handle the cash Fortunate 8 TV pledged to pay the county. Higgins mentioned the producers had not but despatched a test for the $1,000 per day owed beneath the settlement, and it’s not clear whether or not Fortunate 8 would nonetheless owe these funds if the underlying contract is void. (Higgins hasn’t defined why the cash has not already been paid, regardless of the filming ending almost a yr in the past.)

However the largest query hanging over all of this is likely to be whether or not the county can or will take any steps to forestall the present from airing.

Some county officers have already expressed issues in regards to the content material of this system. “We now have a whole lot of good issues happening in Pulaski County [and] in central Arkansas total,” Hyde said to THV 11. “We don’t need to showcase our residents at their worst.”

“I’m sickened once I watch the trailer,” Stowers, the JP from Maumelle, told the Democrat-Gazette. The trailer exhibits inmates making “hooch” or jail wine, preventing, and rolling what seems to be a joint. “I can solely think about how damning the total documentary will probably be,” he added.

Stowers is just not the one quorum court docket member with issues in regards to the state of affairs, both. “I, like many people throughout the county, am involved in regards to the initiation and execution of this settlement,” magistrate Natalie Capps mentioned. “The legality of the settlement and subsequent binding of the county is an preliminary query [that needs to be answered].”

The quorum court docket started making an attempt to reply a few of these questions yesterday by passing an ordinance that calls for Higgins reply 40 questions in regards to the manufacturing of the present. “You will need to perceive processes, advantages and vulnerabilities to people and the county that had been created by this settlement,” Capps informed the Arkansas Occasions earlier than final night time’s assembly.

The ordinance provides Higgins 5 days to reply the questions, according to the Democrat-Gazette. The paper reported that the quorum court docket additionally allotted $150,000 to Fogelman’s funds for hiring exterior counsel.

In the end, this example appears unlikely to go away quietly. Hyde and outdoors attorneys are trying on the county’s choices, in response to Fogleman. And a few or all the points raised by the apparently unlawful contract could finally wind up within the lap of native Prosecuting Legal professional Will Jones or presumably even Legal professional Normal Tim Griffin, whose workplace just lately said he was “investigating the matter.”

As one county official talking on background with the Arkansas Occasions put it, “It will find yourself in court docket, by some means.”

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