Fort Smith board may call for 1% election

story by Luke Hobbs
[email protected]

In Tuesday’s (July 12) study session, Fort Smith city directors opted not to appeal a Sebastian County Circuit Court decision that allowed petitioners against a 1% prepared food tax to resubmit signatures.

Meanwhile, several directors pushed for the board to call its own election on the food tax.

On June 28, Sebastian County Circuit Judge Michael Fitzhugh ruled that citizens challenging the 1% food tax ordinance could have an additional 10 days to correct deficiencies “related to the insufficient number of verified signatures.”

The additional petitions were submitted July 8.

Tuesday’s meeting opened with City Attorney Jerry Canfield laying out the city’s position on a potential appeal of Fitzhugh’s decision to the Arkansas Supreme Court. Canfield said he “strongly recommended” an appeal for two reasons:
• The ballot title submitted by the Citizens for Responsible Taxation (CRT) simply copies the title of the food tax ordinance. The ordinance title is not sufficient as a ballot title.

• Citizens had already had a 10-day period to resubmit petitions, so by granting them an additional 10 days, Fitzhugh was effectively ordering two 10-day periods, which is unconstitutional.

Canfield said an appeal by the city would not affect the city clerk’s current task of counting and verifying petition signatures. The Board would still have to call an election if there were enough valid signatures.

Ideally, Canfield said, the Supreme Court would expedite the case and decide the appeal prior to the election. If the Court ruled in the city’s favor, the petition would be considered to have failed and the election would be cancelled.

City Director George Catsavis asked Canfield if he was “100% sure” an appeal would succeed. Canfield said he would never predict a court victory with absolute certainty, but that he was very confident the city would win the appeal.

Director Pam Weber proposed the board call for a referendum on the food tax, independent of the citizen petition drive. While emphasizing that she still supported the food tax, Weber said it was time to let citizens decide the issue.

Director Andre Good agreed with Weber.

“This issue has become about a lot more than just the convention center. It’s turned into being about denying the people’s right to vote,” Good said.

Good said he resented that food tax opponents were accusing the board of taking away the right to vote, but argued that the Board must change course.

Director Phillip Merry disagreed, saying, “Let’s stay the course.” Merry said he believed people would respect the Board in the long term if it stuck with its original decision to enact the tax.

“I don’t know what has changed since we passed the ordinance,” he said.

In a subsequent discussion, Directors Don Hutchings, Kevin Settle, and Steve Tyler also supported the Board calling its own election.

But a perplexing question emerged: What if voters uphold the food tax in a board-mandated election? Would the city have to hold a second referendum to satisfy the citizen petitions?

Canfield said he knew of no precedent for such a circumstance, and he could not predict the correct course of action.

Weber said she hoped that if the board called its own election on the food tax, the petitioners would “act in good faith” and withdraw their petition, thus eliminating the potential conflict.

In an informal vote on appealing the circuit court decision, six directors opposed appealing, with Merry the only one to support it.

City Administrator Ray Gosack then advised the Board that the city’s legal staff will need time to draft a potential ballot title on the food tax. The staff, he said, will also study the possibility of having two elections on the same ordinance.

The Board will likely examine the food tax again in the July 26 study session.