Judge dismisses FOIA lawsuit against city of Fort Smith

After a day of testimony from city directors and Fort Smith City Clerk Sherri Gard, the city of Fort Smith was dismissed by Circuit Court Judge James Cox from a lawsuit Wednesday (Oct. 8) that alleged it had violated the Arkansas Freedom of Information Act by polling city directors by telephone and email regarding the removal of two items from a meeting agenda.

The case was originally brought July 1 by Fort Smith resident Jack Swink after City Director Mike Lorenz successfully sought the removal of two items from city Board of Directors meeting agendas – one that would authorize an audit of legal billings and another that would establish a committee to review whether the city should hire in-house legal council or continue outsourcing legal services to the Daily and Woods Law Firm. The issues came about after attorney and blogger Matt Campbell alleged improper billing by the law firm against the city. Campbell represents current and former city employees in whistleblower suits against the city.

The case centered around the use of Fort Smith Municipal Code 2-31-4, which states, "Any item of business may be denied a place on or removed from the agenda by notice of four (4) directors to the city clerk prior to the date of the meeting of the proposed consideration. The city clerk shall immediately notify the city administrator, the mayor, the directors and other interested persons of such action.”

Lorenz placed a call to Gard, as well as an email, on two different occasions in June in which he was successful in removing the two items from meeting agendas after Gard contacted all members of the Board using the same methods.

Swink's lawsuit was brought after the second instance conducted by email in which Lorenz successfully removed the items, which had been placed on two agendas at two different times by City Director Philip Merry, with a second from City Director Pam Weber. While Swink alleged in his lawsuit that it violated the FOIA, Gard testified that her understanding was that the FOIA did not address how a city is to establish an agenda and further stated that "there is no definition of a meeting in the FOIA.”

In his attempt to show violation of FOIA, Swink's attorney Joey McCutchen – now a law partner of Campbell – asked whether the public was able to listen in on the calls.

"They're more than welcome to," Gard replied.

"How?" McCutchen asked.

After a brief pause, Gard said, "There would be no avenue.”

But as part of the plaintiff's cross examination, Gard noted that individuals who request notification of meetings are included in Board emails and receive notifications, including requesting media outlets.

"It's only people who request, but the news media (is included) as a courtesy," she said, adding that Swink had never requested notification of any Board meetings or other actions, such as removal of items from agendas.

It was noted through emails and news articles submitted as evidence by the city's defense attorney that the public was notified of removal of agenda items, with Gard testifying that the section of the city code in question had been used numerous times since 2012 with no objections. City Attorney Jerry Canfield provided both emails to citizens who requested notification, as well as media reports, to illustrate the pattern.

Merry was the first witness called by McCutchen and was asked whether he felt like his communications with Gard outside of regular meetings regarding agenda items, and removal thereof, constituted a violation of the open meetings section of the Freedom of Information Act.

"If I felt I was violating (the law), I would not have voted (to keep the items on the agenda). I felt the need to be complicit with a city official," Merry said.

McCutchen zeroed in on two emails written by Lorenz and City Director André Good sent in response to the second polling conducted by Gard regarding the removal of the agenda items at Lorenz's request. Both explained the men's reasons for removing items (Lorenz) or being in favor of keeping the items on the agenda (Good), which McCutchen used in an attempt to show the two were essentially having a discussion on city business outside the view of the public.

In Good's email, he signed off by noting, "these are issues that trouble me and not certain if such would be best discussed in a board setting or not.” McCutchen asked why Good would not want the issues discussed "out of a board setting.”

"I did not say out of a board setting," Good corrected. "I said better or not. I don't appreciate you putting words in my mouth. … And I absolutely did (have email dialogue with other city directors).”

He said it has happened in the past, but only on items that will not come up in meetings or on non-voting items, such as explaining why he would or would not favor leaving an item on the agenda.

The third and final city director to take the stand was Lorenz, who said his emails on the topic and his successful attempts to have the items removed from the agenda were not meetings under the FOIA, but instead discussing the creation of the agenda and explaining why he wanted to have the items in question removed.

Lorenz, whose email explaining his reasoning was submitted to Gard and then disseminated to the Board and the media, said he had no other way to explain his reasons at the time because "there was no way to have a discussion without violating FOIA.”

The last witness to testify was Swink, who Gard noted had never asked to be included in email correspondence including the Board and the media. He said he believed "the city violated FOIA and any meeting, formal or informal, should be open.”

"When it says directors should contact the clerk, I believe it means shall contact the clerk," he continued, implying that her polling of directors was a violation of the act.

But in cross examination by Canfield, Swink was asked whether he believed other sections of the city code that allow four directors to add items to the agenda in the same method as was demonstrated to have happened in the past was a violation of the act.

"Adding to (the agenda), I don't think it's taking transparency away," he said. "But I don't really know.”

During cross examination, he admitted to having not read the full language of the FOIA and asked again whether adding and taking agenda items outside of a public meeting was a violation of FOIA.

"The way it's asked, they'd both be illegal," Swink replied.

After a request was made by Canfield to dismiss the case following Swink's testimony, Judge Cox took about 15 minutes to come to a decision before dismissing the case.

He said based on the evidence presented and the testimony of the city officials, he could not find that a violation of the Freedom of Information Act had occurred by following  a local city ordinance.

"Issues in the resolutions have not been fully discussed and have not been voted on. They've not made it to the agenda," Cox said.

He also said Gard's actions were "not an improper action on the part of the city. Contact by the Clerk requesting notice from directors about an agenda item, whether it should remain or be removed from an agenda, it is the ruling of this court that that does not amount to a meeting under the Freedom of Information Act.”

He then dismissed the case "with prejudice," meaning the case cannot be brought back to the circuit court unless the Arkansas Court of Appeals or Arkansas Supreme Court send the case back to the court.

Following the ruling, McCutchen would not say whether Swink would appeal, but said he and Swink were "committed to transparency."