Director Merry: No collaboration on vote

During the Tuesday (June 5) City of Fort Smith Board of Directors meeting, City Director Philip Merry made a comment that raised at least one eyebrow, that of Ward 3 City Director Don Hutchings.

“Concerning a rate increase — this goes up, that goes up — nothing goes up unless the people on this board vote for it, and that isn’t going to happen, not in this current configuration, I believe. There must be a 4 out of 7 vote,” Merry said.

The Board voted 4-3 on Tuesday in a controversial decision to exempt 20 neighborhoods in Fort Smith from participating in the city’s automated trash collection program.

Later in the meeting, Hutchings asked Merry, “You said four out of seven would not vote for a rate adjustment. How do you know that?”

Merry, at that point, clarified that it was a “matter of opinion,” something he reiterated to The City Wire on Wednesday (June 6).

“The comment was based on having a $2.1 million surplus that was turned back in by the sanitation department last year for monies they did not need. What my point was is this: I could not see a majority of this board voting to raise prices on people while $2 million is sitting in the bank. That particular money, that $2 million, is held over at the end of the year and cannot be used to help other departments. It must stay by itself.”

Merry continued: “My comment sounded rather confident. That might have been an error on my part. I did not see how our board could hold $2 million in an account that stays there and then raise rates on our customers.”

Merry emphasized the comment was “not the result from a collaboration. That was merely a comment I made because of opinion, and I still stand by that opinion. From a business perspective, I could never invoke a rate increase on a customer when I’m holding $2 million of their money.”

Voting "collaboration," as Merry identifies it, is prevented in Harris vs. City of Fort Smith, a 2004 Arkansas Court of Appeals case in which appellant and Fort Smith resident David Harris brought suit against the city, and won, when he argued that former City Administrator "Harding's succession of one-on-one conversations with each member of the Board violated the 'open meetings' provision of the FOIA (Freedom of Information Act)," the official ruling reads.

The dispute, which began in April 2002, concerned contacts Harding had made to board members to win their approval for participation in a land auction. The Court of Appeals found the contacts to be "disingenuous."

From Judge Wendell L. Griffen's ruling: "Arkansas Code Annotated section 25-19-106(a) (Repl.2002) provides: 'Except as otherwise specifically provided by law, all meetings, formal or informal, special or regular, of the governing bodies of all municipalities, counties, townships, and school districts and all boards, bureaus, commissions, or organizations of the State of Arkansas, except grand juries, supported wholly or in part by public funds or expending public funds, shall be public meetings.'"

Judge Griffen also quoted from Arkansas law: “It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy.”

Harris on Wednesday (June 6) said he Merry was likely assuming he had four votes.

"I think he was just guessing, thinking probably that the same four people, who voted for alley pickup would vote against a rate increase. That's just my guess, but I have no idea. I would be surprised if they had discussed it earlier. The vote was not a surprise. I think it was just a case of a lot of people talking for the TV. Andre (Good) called me in the afternoon before the meeting, and we knew then how the vote was going to go. It's a little different from my case, because in that, they just said, 'Yeah, we did it and we're proud of ourselves,' so it wasn't hard to prove."

Still, Harris believes unlawful collaboration between City Directors happens, but "proving it is another story."

"I know in the past they've done it on several occasions, discussing ahead of time. When they elected Ray Gosack as the City Administrator, it turned up on the agenda as 'Hire City Administrator,' even though they hadn't advertised the position or discussed hiring. So how'd it get on the agenda? Well, Ray's Office prepares the agenda, and he was told to put it on there. In fact, as I was walking to the meeting, (City Director) George Catsavis said, 'I guess we're getting us an administrator tonight.' You put them on the stand and expect them to tell the truth, but they don't always," Harris said.

Back to the issue of collaboration, Merry added there was "none whatsoever. There are pretty strict rules on that, and I’m well aware of them. Maybe some day the law will allow us to discuss the way things are, so we can look for better compromises, but that’s not how it is now.”

Still, Merry said you can tell much from comments and motions that are made and seconded at board study sessions. Merry cited Mayor Sandy Sanders’ veto threat at the May 10 joint meeting between the board and the Parks Commission on any action that might be taken to delay the two softball fields at Ben Geren Park.

“You can gain a feel for how people comment in the discussion and by what motions they make, how they’re probably going to vote,” Merry said.