When does an agreement become a contract? That seems to be the threshold disagreement between Pulaski County Sheriff Eric Higgins and County Judge Barry Hyde regarding the filming of a Netflix reality show in the Pulaski County Regional Detention Facility.
The trailer for “Unlocked: A Jail Experiment,” which was released on March 13, describes the as-yet-unaired show as “a radical social experiment to grant men who are incarcerated more agency” within a unit of the jail. The eight-episode series will premiere on April 10.
In August 2022, Higgins signed an agreement that allowed a crew with Lucky 8 TV, Inc., to film inside the jail. The sheriff has since told the Arkansas Democrat-Gazette that the document he signed was only a “location release” that let camera crews and producers access parts of the jail to film the show. State law gives county sheriffs the authority to allow third parties into a county jail at the sheriff’s discretion.
County officials, however, argue that the agreement between Higgins and Lucky 8 TV was a contract, regardless of how Higgins describes it. “A contract is simply a written or spoken agreement that is intended to be enforceable by law,” Pulaski County Attorney Adam Fogleman said via email to the Arkansas Times.
The distinction matters because a sheriff does not have the power to enter a contract that legally binds a county, according to both Fogelman and Higgins himself.
Several provisions of the Arkansas Code “deal with county government, executive powers, and other county officials,” Fogleman said via email. “The constitution and statute establish the county judge as the CEO of the county charged with the administration, care and keeping of county property,” he added. “The county judge is the only person who can bind the county to a legally enforceable agreement.”
According to Fogleman, other county officials only have specific powers that are given to them by the constitution or by statute. “Nowhere in Arkansas law is there ever a reference made to a county sheriff signing a contract on behalf of the county,” he said.
Higgins has not responded to questions from the Arkansas Times, but he has acknowledged to the Democrat-Gazette that he does not have the authority to sign a binding contract on behalf of the county. “I recognize I can’t sign a contract, [but] what we did was a location release, and we looked at it as a memorandum of understanding,” Higgins told KARK last week.
Justice of the Peace Phil Stowers is unconvinced by the distinction Higgins is making, however. “Whether it is a contract or an ‘agreement’ is just semantics,” he told the Arkansas Times. “It tries to legally bind the county, and that is what matters.”
Hyde echoed Stowers’ sentiment. “[It’s] an illegal contract,” he told the Democrat-Gazette after yesterday’s Quorum Court meeting. “It doesn’t matter what they thought it was,” Hyde said. “It’s a contract.”
While it seems clear that the agreement is a contract, and the legality of such a contract will almost certainly have to be determined by a judge, Higgins’ claim that he was not signing a contract in August 2022 makes little sense.
A year earlier, he and Fogelman discussed issues and concerns with a proposed contract that Lucky 8 TV submitted in 2021. While that contract was ultimately not signed, the county attorney’s office and Lucky 8 TV’s lawyers discussed the contract’s terms, according to a March 20 letter from Fogleman to Higgins:
You first notified me on December 28, 2021 by email of your ongoing communications with Lucky 8 Productions and your desire to cooperate in the production of a TV series. Between that first notice and through the second quarter of 2022, the attorneys in my office and I engaged in good-faith negotiations with attorneys for Lucky 8 to revise the language of its proposed agreement to protect the interests of the County, its employees, and the detainees to whom you owe a Constitutional duty of care. Those negotiations ended unsuccessfully.
Fogleman’s letter included the marked-up version of the earlier agreement that his office created in 2021, with this caveat: “Questions are contained in the document, which reflects that this [2021 draft] agreement was not a final, executable document.” Those questions include where any hidden cameras would be placed, which parts of the jail facility the production crew would have access to, how many episodes were likely to be filmed and who the parties believe constitutes jail “personnel.” (The draft contract appeared to include inmates within that definition.)
Neither Lucky 8 nor Higgins answered these questions, according to Fogleman. But that silence raises a broader question about Higgins’ actions: Why send the county attorney’s office a proposed contract in late 2021, ignore the county’s edits and questions, then sign a different “agreement” in August 2022 without having the county attorney weigh in on the new document first?
Assuming the agreement is a contract that Higgins had no authority to enter into, it is not immediately clear what Pulaski County’s next steps will be. “We are discovering and examining the facts of this issue,” Fogleman said. “The County Judge, with the help of outside counsel, will analyze the information and determine how to proceed.” Fogleman believes his office is conflicted out of representing either side in this matter.
One issue that will require attention is Pulaski County Sheriff’s Office deputies who may have been paid $40/hour to provide security to the production crew during filming.
When this story first came to light, Higgins said the only payments made from Lucky 8 TV to Pulaski County were $1,000 for each day of filming to offset costs. But on Feb. 22, 2023, Lt. Denise Atwood emailed a memo to jail personnel “requesting additional deputies, sergeants, or lieutenants to provide security” during filming. Volunteers were to be paid $40 per hour by Lucky 8 TV, according to the memo.
Two deputies were selected according to the sheriff’s office, though they were not included on the list of jail staff and inmates who took part in the filming, according to a list Higgins provided to Fogleman. Stowers told the Democrat-Gazette he believes this contradicts Higgins’ statement about no money changing hands other than the $1,000 per day.
A larger issue with such payments is that they appear to be illegal. On March 12, Fogleman wrote to Higgins regarding “the practices of certain deputies in off-duty employment,” which Fogleman said was “legally suspect.”
Fogleman included with this letter a memorandum from a deputy county attorney, which said, “County property (i.e., uniform and vehicle) cannot be used for a non-county or private purpose,” and “the law prohibits the receiving of gifts or compensation for the performance of the duties and responsibilities in a person’s office or position with the County from nongovernmental or private entities.”
According to the memo, it violates state law for a third party to pay jail staff to provide protection and security in the jail while off duty, since those responsibilities are part of the employees’ regular jobs. The memo cites Arkansas Code Annotated 21-8-801(a)(1), which prohibits a public employee from receiving “a gift or compensation,” other than their regular salary and benefits, “for the performance of the duties and responsibilities of his or her office or position.”
The more pressing concern for the county, though, is how to handle the apparently illegal contract that Higgins signed.
Because the sheriff lacks the authority to enter a contract on behalf of the county , this contract would almost certainly be void. If that is the case, the county and Lucky 8 TV would have to figure out rights and responsibilities regarding the footage already recorded.
Additionally, many of the inmates at the jail were not arrested by the Pulaski County Sheriff’s Office, but by city, state or federal law enforcement. At least one inmate who participated was at the jail by order of the Arkansas State Hospital, the Democrat-Gazette has reported. If the show is still going to air as planned, the county must figure out whether the agencies who arrested certain inmates are entitled to any say over whether a pretrial detainee can be on a reality program while in jail.
Fogleman mentioned this concern in passing last week in an email to Higgins. Fogleman said he had “received requests from multiple agencies for a list of the detainees who participated” in the show and askedHiggins to send that information so Fogleman could provide it to the agencies.
The county will also have to address the money Lucky 8 TV pledged to pay the county. Higgins said the producers had not yet sent a check for the $1,000 per day owed under the agreement, and it is not clear whether Lucky 8 would still owe those payments if the underlying contract is void. (Higgins hasn’t explained why the money has not already been paid, despite the filming ending nearly a year ago.)
But the biggest question hanging over all of this might be whether the county can or will take any steps to prevent the show from airing.
Some county officials have already expressed concerns about the content of the program. “We have a lot of good things going on in Pulaski County [and] in central Arkansas overall,” Hyde said to THV 11. “We don’t want to showcase our citizens at their worst.”
“I am sickened when I watch the trailer,” Stowers, the JP from Maumelle, told the Democrat-Gazette. The trailer shows inmates making “hooch” or prison wine, fighting, and rolling what appears to be a joint. “I can only imagine how damning the full documentary will be,” he added.
Stowers is not the only quorum court member with concerns about the situation, either. “I, like many individuals within the county, am concerned about the initiation and execution of this agreement,” Justice of the Peace Natalie Capps said. “The legality of the agreement and subsequent binding of the county is an initial question [that needs to be answered].”
The quorum court began trying to answer some of these questions yesterday by passing an ordinance that demands Higgins answer 40 questions about the production of the show. “It is important to understand processes, benefits and vulnerabilities to individuals and the county that were created by this agreement,” Capps told the Arkansas Times before last night’s meeting.
The ordinance gives Higgins five days to answer the questions, according to the Democrat-Gazette. The paper reported that the quorum court also allocated $150,000 to Fogelman’s budget for hiring outside counsel.
Ultimately, this situation seems unlikely to go away quietly. Hyde and outside attorneys are looking at the county’s options, according to Fogleman. And some or all of the issues raised by the apparently illegal contract may ultimately wind up in the lap of local Prosecuting Attorney Will Jones or possibly even Attorney General Tim Griffin, whose office recently said he was “investigating the matter.”
As one county official speaking on background with the Arkansas Times put it, “This will end up in court, one way or the other.”
