Fort Smith defends ability to privately pull board agenda items

The city of Fort Smith has responded in a court filing to a lawsuit alleging that the city had violated the Arkansas Freedom of Information Act when City Clerk Sherri Gard twice contacted city directors regarding the removal of an item from a meeting agenda.

In the filing by City Attorney Jerry Canfield and attorney Michael Redd, who is representing City Director Keith Lau, the men acknowledged that Gard had polled board members regarding removing two items from meeting agendas after City Director Mike Lorenz called Gard to initiate the process and said it was perfectly acceptable under Arkansas law.

The items in question, placed on the agenda by City Director Philip Merry and seconded by City Director Pam Weber, included a resolution that would have hired an auditor to review legal billings from Canfield's law firm Daily and Woods to the city after allegations were leveled by attorney and blogger Matt Campbell that the city was being charged for services not rendered and overcharged for other services. Another resolution would have established a committee to review whether the city should continue with contracted legal services provided by Daily and Woods or hire in-house legal counsel.

"Defendants admit that the Fort Smith Code contains procedures for the formulating of agendas of meetings of the Fort Smith Board of Directors," Canfield writes in his response. "The Arkansas General Assembly has delegated to municipalities, including municipalities operating under the city administrator form of government, the power to adopt rules to govern the formulation of agendas for meetings of the board of directors of the municipalities."

The lawsuit, filed by attorney Joey McCutchen on behalf of Fort Smith resident Jack Swink, said cities could not impose ordinances that would "give public officials the power to do something that would otherwise be prohibited under state law, including the open-meetings provisions of the AFOIA."

Due to the belief by Swink and McCutchen that the city ordinance allowing directors to remove items from agendas that led to the lawsuit, the lawsuit asks that the ordinance be invalidated. But in the response dated July 18, Canfield said invalidating the city ordinance that allows one director to ask that an item be removed so long as three other directors also notify the city clerk that they want the item removed would impede the city's ability to conduct business.

"Further, the granting of relief to the Plaintiff under the allegations of the Plaintiff's Complaint would render both the public meetings provision of the FOIA (A.C.A. § 25-19-106) and the criminal penalty provision (A.C.A. § 25-19-106) unconstitutionally vague, violating the Fifth and Fourteenth Amendments to the U.S. Constitution and Article 2, § 8 of the Arkansas Constitution."

The response asks that the lawsuit be dismissed against defendants Gard, Lau, Lorenz, City Director George Catsavis, Vice Mayor Kevin Settle and the city of Fort Smith.
The city previously lost a 2002 lawsuit by Fort Smith resident David Harris that was appealed to the Arkansas Supreme Court regarding then-City Administrator Bill Harding's polling of city directors regarding their votes on a property purchase.