Fort Smith Board members dismissed from FOIA lawsuit

Four Fort Smith city directors were dismissed from a lawsuit alleging violations of the Arkansas Freedom of Information Act according to a Thursday (July 31) court filing.

City Directors George Catsavis, Keith Lau, Mike Lorenz and Vice Mayor Kevin Settle were all released from the lawsuit that alleges the FOIA violation after Lorenz had called City Clerk Sherri Gard requesting two items be removed from meeting agendas. Gard then contacted all members of the Board to determine if there was adequate support to remove the items. A city ordinance passed in the 1970s allows removal of items from a meeting agenda if four directors notify the city clerk of their desire to have the item removed.

Attorney Joey McCutchen, representing Fort Smith resident Jack Swink, said Saturday (Aug. 2) that the removal of the four city directors was due to the elected officials' lack of understanding of the Arkansas FOIA law prior to the polling having been conducted by Gard.

“(A)fter some formal and informal discovery, while directors should have knowledge of the FOIA, it's pretty clear that the administration clearly had the knowledge and that it's the city administration who's responsible for this. That was one of the big reasons."

McCutchen said he was not excusing the actions of the Board members, specifically noting that City Directors André Good, Philip Merry and Pam Weber — while not originally named as defendants in the lawsuit — also took part in the action leading the lawsuit.

"The fairness argument is out there also," McCutchen said. "Though I think Philip Merry and Pam Weber have tried to be so transparent on this particular issue, I think they were involved in the process, also. Everyone was involved in the process and I think the directors were put in a bad situation. In my opinion, that's why we have a city administrator to advise and make sure we're doing business in public and openly. In my personal opinion, those folks were trying to be transparent. They were trying to bring things to a vote in public with something that was put on the agenda in public. They were trying to vote again in public."

Merry had originally attempted on June 3 to get votes on the hiring of an auditor to review legal billings for the city after allegations of improper billing by the Daily and and Woods Law Firm — whose law practice serves as the contracted legal services provider for the city — were leveled by attorney and blogger Matt Campbell, who has since formed a law practice with McCutchen and attorney William Buckley.

Merry had also attempted to get a vote regarding the formation of a committee to review whether the city should continue paying outside counsel for legal representation or hire in-house attorneys to represent the city. A study session was subsequently held with the Board regarding the allegations, which City Attorney Jerry Canfield has said are without merit.

Merry's resolutions, seconded by Weber, were placed on meeting agendas and twice were removed through the city ordinance at the original requests of Lorenz.

McCutchen added that this lawsuit, which still names Gard and the city of Fort Smith as defendants, is just the latest case in which the city has illegally polled city directors. He cited a case brought in 2002 by Fort Smith resident David Harris which the city ultimately lost on appeal before the Arkansas Supreme Court in 2004, as well as another FOIA lawsuit that was brought by McCutchen that led to a 2012 Arkansas Supreme Court opinion that said while the city was not necessarily in violation of FOIA regarding a series of one-on-one meetings between the city administrator and city directors, a circuit court's attempts to rule part of the Arkansas FOIA unconstitutional was in error.

"I think those are two major reasons (for continuing the lawsuit without the city directors as co-defendants). The city bears ultimate responsibility and the common denominator is the city administrator. I think the city of Fort Smith should be extremely sensitive to this issue of polling in private and it's pretty clear to me that they're not and they continue to go down the same path in a different way."

In a response to McCutchen and Swink's latest lawsuit, City Attorney Jerry Canfield said the city is within its rights to poll city directors and had asked for the dismissal of city directors granted Thursday. City Director Keith Lau, who had hired his own attorney with the Board ultimately voting to pay any fees associated with his legal defense, said he was pleased with the dismissal.

"Honestly, I'm happy and relieved," he said. "What I said before was I thought, and so did my attorney (Michael Redd), I was not liable if found in violation. If Joey (McCutchen) and Jack (Swink) want to decide if that procedure is a violation of the Arkansas FOIA, more power to them. We'll let the courts decide. I'm just happy to be out of it personally."