A legal mess

A rarely used procedural action taken June 11 by the Fort Smith Board of Directors to kill a review of the city’s long-term relationship with and recent billings from the Daily & Woods law firm is part of a growing list of troubling board decisions that is causing more citizens to question the competence of the board and top city staff.

Fort Smith City Directors Philip Merry Jr., and Pam Weber requested that the board at its June 10 meeting begin a discussion of the city’s legal representation. The request followed a series of website reports by attorney Matt Campbell which questioned billing practices by the Daily and Woods firm to the city. Campbell’s detailed research alleges the firm had over-billed for some services and billed for others that never occurred, such as phone calls to Campbell as part of a set of lawsuits against the city in which he serves as legal counsel.

The request by Director Merry sought to audit the legal billings back to 2011. His request also included the creation of a commission to review whether the city should still contract with Daily and Woods like it has since 1967, or if it should hire in-house counsel and support staff to handle legal matters. The city paid Daily & Woods under $300,000 in 2011, and more than $400,000 annually in 2012 and 2013.

Voting to remove the audit from the agenda were City Directors George Catsavis, Andre Good, Mike Lorenz, Keith Lau, and Vice Mayor Kevin Settle. Voting to remove the commission proposal were Lorenz, Lau, Catsavis and Settle. Lorenz initiated the effort to remove the agenda items.

Jerry Canfield, the lead attorney for the city with Daily & Woods, and City Administrator Ray Gosack have said nothing was wrong with the billings. Canfield provided documentation to Gosack showing a sampling of phone calls he said were made to that counter Campbell’s allegations. No one should be shocked that the self-investigation by Canfield found no wrongdoing, or that Gosack was quick to support Canfield’s assertions of innocence. There is nothing to see here. Move along.

Of the 23 phone calls Campbell alleges Daily & Woods erroneously included in a bill to the city, Canfield’s investigation reported explanations for five. Apparently, being able to dismiss five of 23 disputed calls was enough to discredit Campbell’s entire report. Gosack has also sought to discredit Campbell by noting that Campbell is in the midst of a lawsuit against the Fort Smith Police Department, which is represented by Daily & Woods. Indeed, Campbell is suing the FSPD, but so far he reports being 4-0 on legal battles with Daily & Woods. One might understand the need for a distraction if on the losing side, but Campbell is doing fine, thank you very much. One might justifiably assert that it is in Campbell’s best interest for Daily & Woods to continue as the city’s legal arm.

What’s more, Campbell is not some disgruntled, shoot-from-the-hip troublemaking attorney. He is the attorney who discovered financial irregularities that resulted in the resignation of Lt. Gov. Mark Darr. Campbell’s research resulted in Faulkner County Circuit Judge Mike Maggio dropping out of a Court of Appeals race, and resulted in the Arkansas Supreme Court effectively suspending Maggio from the bench. Campbell’s research also resulted in changes within the office of Arkansas Secretary of State Mark Martin. Director Lorenz might want to ask Darr about the strategy of ignoring Campbell with the hope that he goes away.

An initial review of how other cities manage their legal affairs suggests that Fort Smith is unique. Of Arkansas cities with a population of more than 30,000, only Fort Smith depends fully on an outside legal firm. And based on what is admittedly an unscientific survey of more than a handful of attorneys, the city could be paying more than double what is necessary for legal services under the existing arrangement with Daily & Woods. And more than the cost, the attorneys also suggested that an in-house attorney may create more efficiency among city departments AND provide legal advice based solely on the best interests of the city.

The Board’s fear of transparency on this issue, its unwillingness to further investigate Campbell’s serious allegations, and the cowardice move to kill agenda items outside of a public format has raised eyebrows, suspicions and anger.

However, if the inexplicable behavior by some members of the Fort Smith Board of Directors is part of a secret plan to energize an effort to change the form of city government, well, good job. There is certainly more talk – even among those historically supportive of the existing form of government – about considering other city governance options.