Guess who’s coming to dinner

Some or all members of the Fort Smith Board of Directors often gather at a restaurant following their regularly scheduled voting meetings. The media has not received advanced notice of such meetings. To learn about these meetings, a reporter must attend the board meeting and then hope to be invited or overhear the board members discuss where they plan to eat.

The City Wire recently asked several members of the Board if they considered the restaurant meetings a violation of the meetings rules or a violation of the spirit of the rules. In his response, City Director Mike Lorenz acknowledged that “some directors have dinner together after nearly every board meeting and have for at least the past year and a half that I have been a member of the board. Each time the media is invited and notified verbally in person when this takes place.”

The experience of The City Wire's two reporters who attend board meetings is that such an invitation is not always made. The only time reporters with The City Wire attended one of the restaurant meetings is when we overheard a discussion, and a board member who observed that we overheard the conversation offered us an invitation. On another night, a reporter by coincidence saw a group of board members at a restaurant. Only when the board members saw the reporter was he invited to sit with them.

Lorenz concluded his response by noting: “Finally, let this be official media notice that a director and/or a member of staff may eat dinner together immediately following every board meeting going forward. You or your staff should be sure to verify the location at the end of the board meeting.”

His conclusion confirms that the post-board meeting gatherings are informal, but routine. And his “make sure to verify the location” note has a “catch us if you can” challenge to it.

The Arkansas Freedom of Information Act (FOIA) has the following to say about meetings and notification: “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.”

Arkansas’ FOIA also appears to set a minimum for the time in which the media or citizens who request meeting notification are notified of a meeting: “(F)or emergency or special meetings, notification shall be made at least two (2) hours before the meeting takes place in order that the public shall have representatives at the meeting.”

To be sure, previous opinions from the Arkansas Attorney General’s office have said that random social encounters (playing golf, community events, meeting occasionally for lunch, etc.) among members of a public body do not qualify as public meetings. A March 2001 opinion from then Attorney General Mark Pryor noted: “As a general matter, therefore, it is my opinion that members of a quorum court may play golf without this constituting a ‘meeting’ under the FOIA, assuming that any discussion of public business is ‘intermittent and incidental to [the] social function[.]’ Op. Att’y Gen. 95-020. It must be recognized, however, that as stated by one recognized commentator on the FOIA, ‘a social function that is used as a device to circumvent the FOIA should be treated as a violation of the act.’”

Not only do the frequent and informal meetings of some or all board members go beyond the notion of random social gatherings, but the frequency also requires a belief that discussion of the public business always remains “intermittent and incidental” to the social function. Two directors told The City Wire they have declined to attend the meetings to avoid potential FOIA violation or any action that might indicate a lack of transparency. Lorenz and City Directors Keith Lau and Kevin Settle have said they talk only about their families, businesses and other personal matters and do not discuss public business at these frequent meetings in which top city staff are often in attendance.

These frequent meetings by board members after their voting meetings seems to fall in a legal gray area. To that point, the FOIA handbook indicates that when in doubt, the public benefit should be given the most weight.

“Statutes enacted for the public benefit are to be construed most favorably to the public. The FOIA was passed wholly in the public interest and is therefore to be liberally interpreted to the end that its purposes may be accomplished. The Act states that ‘except as otherwise specifically provided by law, all meetings … of the governing bodies of all municipalities … shall be public meetings,’” according to the handbook.

The questions asked of the Attorney General’s office were these:
• If board members continue to gather at a restaurant after their meetings, does the frequency require notice?

• If so, is the blanket notice from Director Lorenz sufficient, or should such notice approximate something nearer the official meeting notices?

• By not providing adequate notice to the media and public, has the board violated the Arkansas FOIA with its frequent gatherings after its meetings?

The office of Attorney General Dustin McDaniel apparently has not read the note about FOIA laws being interpreted “most favorably to the public.” Not only did the AG’s office not directly answer the questions related to the facts of this issue, but they offered as a response a 1995 opinion from the office of Attorney General Winston Bryant which essentially was/is a non-response suggesting this may be a matter for the courts.

“Of course, it must be recognized that any regular gathering of members of a governing body demands close scrutiny with an eye toward potential evasion of the act. And as indicated above, the question requires resolution on a case-by-case basis,” noted the 1995 opinion signed by then AG Bryant.

McDaniel’s office responded with an almost 20-year old opinion based on circumstances wholly dissimilar to those in this matter. The 1995 opinion was based on three elected officials who frequently met for coffee prior to being elected. Also, the three who met did not make a quorum, the meetings did not include city staff, and in the 1995 case an elected member did not issue an “official media notice” of after-meeting meetings that may or may not happen.

The Fort Smith questions were about frequent meetings of those who did not meet on every other Tuesday night prior to being elected; about frequent meetings that sometimes include a quorum; and about frequent meetings that also include top city staff.

Because the AG’s office failed to find a backbone on this issue, Fort Smith citizens are asked to believe that these after-meeting meetings are innocent. You are asked to believe in innocence by the same folks who have been less than forthcoming on:
• Water park costs (Remember when they asked a consultant on the water park to not talk publicly about true costs?);
• Appropriate costs for legal services;
• The employment of the city auditor;
• The process and history of water billing “true ups” between the city and Van Buren;
• Studying the costs of CNG conversion, and
• Why they continue to use a questionable city ordinance to privately kill board agenda items approved during a public meeting. (That’s right. Our board privately kills agenda items approved in public when they do not want to discuss them in public.)

Because the AG’s office failed to find a backbone on this issue, members of the Fort Smith Board of Directors are free to play fast and loose with rules designed to ensure that the public’s business is public business.