Fort Smith Board rejects repeal of rule now facing a legal challenge

The Fort Smith Board of Directors defeated an ordinance Tuesday night (July 15) that would have repealed a section of city code which allows a majority of the Board to remove items placed on the agenda. The ordinance up for appeal has been in place since 1971.

The ordinance, proposed by City Director Pam Weber, received no support from the group of four directors named as defendants in a lawsuit by Fort Smith resident Jack Swink. Swink sued City Directors George Catsavis, Keith Lau, Mike Lorenz and Vice Mayor Kevin Settle for violation of the Arkansas Freedom of Information Act after the four were either contacted by or made contact with City Clerk Sherri Gard seeking removal of two items that would have established a committee to review whether the city should continue with outside legal counsel or hire its own staff attorneys. Another item removed by the four would have appointed an auditor to investigate legal billings after attorney and blogger Matt Campbell alleged the Daily and Woods Law Firm had over billed the city for certain services and had billed for work not performed in some cases. Gard and the city were also named as defendants.

Catsavis abstained from the vote, saying he was concerned about taking any action considering the litigation against himself and the city. Lorenz said he did not find taking action while engaged in litigation "not appropriate," and added that he was upset that only the directors who voted to remove the items were named in the suit.

"To make an action like that during the process of a lawsuit is not appropriate in my opinion. And voting yes or no, I don't know what that does (to me) as a defendant in a lawsuit. Whether I make a motion or whether I vote yes or no, what statement does that make? I've got several issues with this whole thing. One of which is the fact that only the four directors who chose to remove it were named in the lawsuit and everyone else was involved in the process. Whether you voted no… if you said you want it removed or you want it left, you participated in this process and I have a real problem with that."

City Attorney Jerry Canfield was asked for his legal opinion regarding a vote on the ordinance and how that would potentially impact the lawsuit. He responded that he believed a vote to remove the ordinance would have given ammunition to attorney Joey McCutchen, Swink's legal counsel, which he suggested McCutchen would use in court.

"I expect they will (mention it in a trial) and then the other party's going to contend that no, it's not appropriate. It's a past action already taken place. (The case) should be judged on a law that was in place during that time. But however this issue is decided legislatively tonight, someone may try to take advantage of that and make a point in the litigation. So I think your vote tonight may very well affect the litigation. I'm not sure that it should, I just know the past experience that somebody will try that and see how it sits with the judge."

Canfield added that he would "prefer not to deal" with the results of a vote that would have repealed the ordinance that allows the removal of items.

Lorenz chimed in after Canfield's statements, adding that "regardless of litigation, I do not support this ordinance." He also said Weber's addition of the item to the agenda was "knee jerk" and not well thought out, which he said was another reason for the ordinance Weber was attempting to have repealed.

Lau — whose Tuesday request to hire his own legal counsel at city expense apart from Daily and Woods was approved by the Board before the repeal vote — said the Board needed the ability to remove agenda items to protect itself from going "down the rabbit hole" represented by "a minority of the people," which he called "a total waste of time."

Merry said he had heard from citizens who had reached out to him simply want transparency.

"The feedback I'm getting from the people is get the business (of the Board) done when it's done in public. People want us to vote. If the vote goes against the item's author, so be it. Democracy has spoken. I am for the people's will being done. We are elected to represent the people. The motive of the motion that Pam brought up is to ensure that items are voted on in front of the people."

Weber also spoke and said "the world is a different place than 1971. We live in a much different world. We live in an electronic world and people want to be more aware. Citizens want more transparency in their government and I think they deserve it. When things are more transparent, citizens are more happy."

"Yes, we're a policy Board. But the minority has lots of things to say that the majority needs to listen to. If two directors have something to say or worthy of discussion, sometimes that discussion will bring out a better understanding of viewpoints."

Vice Mayor Kevin Settle said he was against the repeal and said each member of the Board was given the ability to participate in the process and said another section of the city code allows four directors to add something to the agenda by contacting the city clerk, just the same as removing items.

"I'm not in favor (of a repeal) at all. Every director has participated. It's no different at all," he said.

The final vote was Merry and Weber voting for the appeal, while City Directors Andre Good, Lau, Lorenz and Settle voted against the repeal. Catsavis abstained from voting.

The Board also met in executive session for more than an hour and 45 minutes to conduct City Administrator Ray Gosack's performance review.

Following the executive session, the Mayor Sandy Sanders made the following statement about the closed-door meeting: "We've had a very good discussion and find his performance very acceptable. We will plan to conduct the performance review at the same next year."

No city directors would speak about Gosack's performance review, explaining that they were not at liberty to discuss personnel matters. Gosack did comment and said he valued the information he received during the review, which he said is the result of a constant back and forth regarding his performance throughout the year.

"I'm pleased with the feedback the Board has provided and they seem to be satisfied with the work that I'm doing. And I'll continue working to make things better in supporting the Board of Directors and Mayor. … I communicate regularly with the Board because if there are concerns, I want to know about them early when they're much easier to deal with rather than waiting until they're a raging fire."

In other business, the Board:
• Approved a resolution "regarding the issuance of bonds for the purpose of assisting in the financing of an industrial facility to be located within the city." The bonds will be used to construct ArcBest's new headquarters; and
• Approved a resolution to "approve financial assurance agreements in lieu of a performance/payment bond, providing financial security to the City that the River Valley Sports Complex will be completed…"