§ 25-16-804 - Removal and replacement.
25-16-804. Removal and replacement.
(a) As used in this section, unless the context otherwise requires:
(1) "Good cause" includes:
(A) Conduct constituting a criminal offense involving moral turpitude;
(B) Gross dereliction of duty;
(C) Gross abuse of authority; or
(D) The unexcused absence of a board or commission member from three (3) successive regular meetings without attending any intermediary called special meetings; and
(2) "Good cause" does not include any vote, decision, opinion, or other regularly performed or otherwise reasonably exercised power of a board or commission member.
(b) (1) The Governor may remove for good cause a state board or commission member whose office or position is filled by gubernatorial appointment, subject to confirmation by the Senate. If the Senate is not in session, confirmation shall be by written petition of a majority of the senators.
(2) The Governor may appoint a qualified individual to replace the board or commission member removed to serve the remainder of his or her term, subject to confirmation by the Senate under circumstances in which confirmation is normally required.
(c) All orders of removal by the Governor shall:
(1) Be in writing;
(2) Be delivered to the member removed or counsel for the member; and
(3) Specifically set out the grounds relied upon for removal.
(d) Removal of board or commission members shall be in accordance with the following:
(1) (A) Within thirty (30) calendar days after each regular board or commission meeting, the secretary of each board or commission shall notify the Governor in writing of any member who has been absent from three (3) successive regular meetings without attending any intermediary called special meetings.
(B) The secretary's notice to the Governor shall include a copy of all meeting notices and attendance records for the past year;
(2) The Governor may remove any board or commission secretary who fails to submit the notices and documentation required by this section;
(3) Within sixty (60) calendar days after receiving the notice and supporting documentation from the board or commission secretary, the Governor shall notify the board or commission member in writing of his or her intent to remove the member for cause;
(4) Within twenty (20) calendar days after the date of the Governor's notice, the member may request an excused absence as provided by this section or may file notice with the Governor's office that the member disputes the attendance records and the reasons therefor;
(5) The Governor shall grant an excuse for illness of the member when the illness is verified by a written sworn statement by an attending physician or another proper excuse as determined by the Governor; and
(6) After twenty (20) calendar days after the date of the Governor's notice, if no rebuttal is received or other adequate documentation is submitted, the member may be removed.
(e) Any board or commission member referred to the Governor because of excessive absences under the provision of this section shall not be entitled to any per diem, stipend, or expense reimbursement for travel to or attendance at subsequent meetings until the board or commission receives notification from the Governor that the member has been excused for the absences.
(f) (1) A removed board or commission member may institute proceedings for review by filing a petition in Pulaski County Circuit Court within thirty (30) days after delivery to him or her or his or her attorney of the Governor's order of removal.
(2) This petition shall not supersede or stay the order of removal, nor shall any court enter an order to this effect or one which would impair the authority of the Governor to appoint a replacement whose service begins immediately upon fulfillment of the normal requirements for assuming office.
(g) (1) When the matter is heard by the Pulaski County Circuit Court, it shall be tried de novo without a jury.
(2) The Governor shall have the burden of proof to show by clear and convincing evidence that good cause existed for removal of the board or commission member in question from office and for revoking his or her commission.
(3) (A) If the court determines that good cause has been shown, it shall enter an order removing the board or commission member in question from office and revoking his or her commission.
(B) If the court determines that good cause has not been shown by clear and convincing evidence, the court shall order the removed member reinstated to his or her position and upon request shall award a reasonable attorney's fee and court costs to the reinstated party.
(h) (1) Subject to the restrictions of subsection (f) of this section on supersedeas or stay orders, a removed board or commission member may appeal the decision of the circuit court to the Arkansas Supreme Court.
(2) The Governor may appeal the decision of the circuit court to the Arkansas Supreme Court, but the appeal shall not preclude the circuit court, in its discretion, from entering an order reinstating the removed member.
(i) No board or commission action in which the appointed replacement participates shall be void, voidable, or in any way subject to invalidation on grounds of participation of the appointed replacement or lack of participation by the removed member in the event that the circuit court or the Arkansas Supreme Court orders the removed member reinstated.