In recent news – the Bureau of Legislative Research (BLR) hired outside legal counsel to handle requests from federal investigators for documents of members of the Arkansas General Assembly. (The BLR writes legislation and staffs committees for the Arkansas Senate and Arkansas House of Representatives.)
Media commentators have been quick to assume this means the FBI is still looking for records concerning General Improvement Funds (GIF) grants. Months ago, one former legislator plead guilty to taking kickbacks for grants and another was indicted for the same scheme.
As a former BLR employee, I think it is more likely the federal investigation has broadened into other areas.
Why I think it unlikely to be about GIF grants?
There would be little reason for federal investigators to look for GIF grant records at the Bureau of Legislative Research, and at this point the FBI ought to be aware of that. If they have interviewed legislative staff, investigators know there is no reason for the BLR to have any records on GIF grants. The decision on who would receive grants was made by individual legislators long after legislative sessions and there would be no reason to involve staff.
The legislators do not have personal staff. The staff provides services to all legislators.
The Bureau of Legislative Research maintains the official email accounts of legislators. Could the FBI be looking for legislators’ email? Perhaps, but I would be surprised if there is anything to find. Many legislators use their private email accounts for legislative business instead of the official email account. During a legislative session, their state email accounts become inundated with pubic inquiries and form letters from interest groups, and it would be difficult for legislators to sort through all the emails to find urgent messages from colleagues, staff, etc. (No, they are not using private email to get around the Freedom of Information Act … their working papers are exempt.)
If a legislator was going to do something nefarious, he probably wouldn’t use the state email account. But even if a legislator’s state email inbox had an incriminating message, would it still be there? Unless things have changed since I retired, if a legislator deletes an email it will go away once backup tapes are reused.
Isn’t there a requirement for legislators and staff to maintain emails? No. In 2005 the legislature passed a records retention law for state agencies, but exempted the legislature and its staff, and exempted other elected officials and their staffs.[i]
GIF grants by legislators have been under federal scrutiny for quite some time. If the FBI thought there might be a treasure trove of GIF grant information held by legislative staff, wouldn’t they have sought it long before now?
Why I think the investigation may have broadened?
I am reminded of a similar investigation about twenty years ago in which a federal investigation of Arkansas legislators spread into additional areas.
In the late 1990’s the FBI investigated a number of attorney legislators over the awarding of contracts for a new state program. It was a new guardian ad litem program which was to provide legal representation for children in certain matters. Several attorney legislators and their friends were going to get the contracts. Some legislators were convicted of corruption, several were indicted, and many more were investigated.
Several people under investigation became cooperating witnesses. As people cooperated it became more likely the investigation would broaden. Rumors flew about who might be cooperating, whether they were wearing a wire, and what additional matters may have come under scrutiny. While the main focus of the 1990’s investigation stayed on the new program, more indictments came in unrelated areas. One legislator was indicted over the sale of a used irrigation system to a state agency. Another was indicted for the solicitation of bribes from owners of greyhound racing dogs.
Twenty years later there is another FBI investigation of Arkansas legislators and people are again whispering, “Who is cooperating, are they wearing a wire, and what else is the FBI looking into?”
What documents might the BLR have?
The Bureau of Legislative Research is unlikely to have any documents that directly incriminate a legislator. What the BLR has are communications and records that could be helpful to federal investigators in establishing time lines of when a legislator took certain actions and compare it to other actions such as receiving certain benefits or contracts. The document might answer questions such as:
- When did a legislator begin working on legislation or inquire about a contract or issue?
- If the legislator provided a bill draft or outline to staff, does it say who gave it to the legislator?
- Who did the legislator have staff work with?
This is all just idle speculation of a retired employee of the Bureau of Legislative Research, but it does seem to be “Déjà vu all over again.“
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David Ferguson is a former Director of Arkansas’ Bureau of Legislative Research, having a thirty-two-year career as an attorney for the Arkansas legislature. After retirement from state service his primary focus has been beef cattle farming. He is also a former officer of Conduit for Action.
[i] Arkansas Code § 25-18-601 and following. Exemption in § 25-18-603