Lawsuit threatened in 1% tax petition effort

Fort Smith attorney Brian Meadors fired a legal shot across the bow Monday, saying he is prepared to sue the city of Fort Smith if it does not accept a correction to petition signatures submitted Mar. 26 to force an election on enactment of a 1% prepared food tax.

On April 1, Fort Smith City Clerk Sherri Gard informed five organizers of the petition drive of two problems — no ballot title was submitted with the petitions, and each petition sheet did not have attached a copy of the ordinance sought to be referred.

A memo from City Attorney Jerry Canfield indicated that not having the ordinance attached to the petition sheet is potentially fatal to the petition effort. Based upon the case law and guidance from Canfield, Gard found the petition forms “insufficient.”

On Mar. 26, about 4,460 signatures were submitted to Gard. The effort needs 2,822 valid signatures (registered voters in Fort Smith) to push the 1% tax to a public vote.

The tax was enacted Feb. 24 by the Fort Smith Board of Directors to resolve a more than 10-year search to plug an annual deficit predicted to occur when state turnback money dried up. The state turnback program ended for Fort Smith in June 2010 from which the city received about $1.8 million a year. In 2010, the city received only $888,723. A fund balance will allow the city to cover the convention center shortfall for 2011.

Barring a successful citizen-initiated referendum, the tax will go into effect June 1.

Meadors, who represents Eddie York and other petition organizers, said the city has not been helpful to the petition organizers.

“Throughout this process, the city has raised several roadblocks to try and disenfranchise voters,” Meadors alleged.

Meadors plans to argue that the petitions as submitted were sufficient, but will also attach copies of the ordinance to the petition sheets.

“That is not really required, but we’re going to do that on a parallel track. … If the city won’t accept that, then we will sue. We’re not going to take this lying down,” Meadors said.

Gard said attaching the ordinance to petition sheets after the fact does not satisfy the requirements of law.

“That is the advice of the city attorney, that they can’t come back and attach the petitions to signatures already filed. There is case law on the books,” Gard said. “I had no option but to deem them insufficient because of that fatal error. It’s not a matter of us putting up roadblocks, it’s just a matter of the law.”

Gard also said she encouraged Eddie York to seek legal counsel prior to gathering and submitting signatures.

“Mr. York called and wanted a roadmap of what they needed to do. I told him I could not give him any type of legal advice and I highly encouraged him to get an attorney so they could make sure all state and local requirements were complied with,” Gard said, adding that she did point York to the specific state and local statutes dealing with the matter.

City Administrator Ray Gosack was unmoved by the threat of a lawsuit.

“We’re going to follow the law, and we have followed the law. The state constitution is very clear on filing referendum petitions,” Gosack said.

Meadors and the petition organizers have until 5 p.m., April 11 to respond to the deficiencies noted in Gard’s letter of April 1.