Fort Smith sued over efforts to avoid board review of legal billings

story by Ryan Saylor

A lawsuit filed Tuesday (July 1) is yet another twist in the question over legal billings from the Daily and Woods Law Firm to the city of Fort Smith.

The lawsuit — filed by Fort Smith resident Jack Swink against City Clerk Sherri Gard, City Directors Mike Lorenz, George Catsavis, Keith Lau, Vice Mayor Kevin Settle and the city of Fort Smith — alleges that recent attempts to remove a set of resolutions from Fort Smith Board of Directors meeting agendas was in violation of the Arkansas Freedom of Information Act.

The resolutions in question were removed most recently on Thursday (June 26) and, if passed, would have directed the city to hire an independent auditor to audit legal billings and also establish a committee to determine whether or not the city should continue with contracted legal services or hire in-house counsel.

City Director Philip Merry had twice requested the items be placed on the agenda following allegations by attorney Matt Campbell on his Blue Hog Report blog that the city was being billed for services not performed by Daily and Woods and was being overbilled for other services.

In order to remove the items from Tuesday's agenda, City Director Mike Lorenz cited Section 2-31(4) of the Fort Smith municipal code in his request submitted at 11:04 p.m. on Wednesday, June 25, in an e-mail to Gard. The code allows an item to be removed from the agenda at the direction of four city directors. An e-mail from Gard dated Thursday at 8:19 a.m. shows she submitted Lorenz's request with the following request to all city directors.

"Such requires concurrence of four (4) directors; therefore, please respond to Director Lorenz's request either via response to this e-mail or call my office, 784-2207."

The lawsuit states that Gard's polling of the Board was a violation of the law.

"Indeed, the Arkansas Supreme Court has held that the polling of individual board members via telephone, rather than having a meeting to discuss an issue, violated the AFOIA (Arkansas Freedom of Information Act) because there was neither notice as required by the AFOIA nor the opportunity for the public and press to attend," the suit reads.

The suit notes the incident from Thursday, as well as a previous successful attempt on June 11 to remove the items from the agenda for the June 17 meeting.

At the Board of Directors meeting Tuesday evening, Swink's attorney Joey McCutchen said the law is clear, adding that city cannot use Gard to poll directors.

"As the city has been through on at least two different lawsuits, all the way up to the Supreme Court — the lawsuit that I filed, the lawsuit that (Fort Smith resident) David Harris filed — I fail to see how what the city is doing now is distinguishable from those two cases. That is a straw man, or a straw person if you would, is polling Board members and it's trying to circumvent the Arkansas Freedom of Information Act."

McCutchen added later: “I think it's disturbing that they continue to go down the same path thinking that they can use a straw man to get around our transparency laws. … If they're not transparent, then they can continue to expect to get sued."

City Administrator Ray Gosack said he had not yet seen the lawsuit and would not comment, though he did say the city is acting in a transparent fashion.

"It's a procedure that's been in place for a number of years in Fort Smith and it's been used approximately seven times in the last two years and times before that. So it's a procedure that has been used in the past and no one's ever raised a question in the past about transparency or openness. You know, it's a certainly a procedure. … The Board has the ability the manage agenda preparation, as it should, for its meetings and that's part of the procedure."

Quoting an e-mail from City Communications Manager Tracy Winchell, the following are the previous dates and topics associated with ordinance use dating back to Jan. 22, 2013:
• March 5, 2013 groundwater wells related to Whirlpool TCE contamination;
• May 7, 2013 executive session (planning commission appointment);
• July 24, 2012 (study session) residential sanitation service item;
• November 20, 2012 animal control item;
• June 18, 2013 board of directors retreat location;
• February 26, 2013 (2 items) aquatic center & administration matter; and
• January 22, 2013 (study session) proposal to relocate city offices.

During the official's forum of the Board meeting, City Director Pam Weber did make a motion to introduce a repeal of the ordinance and was seconded by Merry. Mayor Sandy Sanders indicated that the item would be placed on the July 8 Board agenda. The item again came up during the town hall meeting after the regular Board meeting, where Position 7 Board candidate Sherry Toliver read a prepared statement in which she took the Board to task for using Section 2-31(4) to remove the items from the agenda.

"Our Board of Directors' top responsibility is guiding Fort Smith's economic development and sustaining our City's reputation as the regional economic leader of the future. The Board majority's duck-and-cover strategy of managing this situation is counterproductive and risks embarrassing our City in a statewide media debacle," her prepared statement read.

"Effective public relations has the potential to greatly reduce the amount of damage to our City. Addressing this situation publicly and modernizing business practices as needed will help restore trust in our elected officials and those we hire on behalf of the tax-paying citizens of Fort Smith," the statement continued. "With millions of dollars paid by the City to Daily & Woods Law Firm since 1968, Fort Smith taxpayers deserve no less. And all vendors should know that we closely watch our accounts payable."

McCutchen said he expects to quickly settle the lawsuit with the city without having to take the fight to higher courts.

"I'm probably going to meet with the city attorney early next week, but we would like to get this lawsuit done quickly, like within a matter of days, not months."

He said ultimately, it would be up to a circuit judge to decide whether the city violated the Freedom of Information Act.

Campbell, who attended Tuesday's Board meeting, said his belief is that the Board is moving counter to the will of the people.

“I mean, the response I've gotten has been 99% in favor of, 'Yeah, we need to look at these bills.' So, it's almost like the Board is doing whatever they want to do and then throwing up excuses after the fact. 'Oh, he's just trying to district from the lawsuits.' No, I found out about this stuff because of the lawsuits,” Campbell explained. “But I was blogging way before I represented these guys and I'll be doing it long after and it's not really trying to distract from anything. I'm just pointing out, oh, by the way, you guys are getting screwed over by your city attorney. It has nothing to do with the lawsuit."