McCutchen to pursue lawsuit against the city after Fort Smith Board rejects settlement offer

Fort Smith city attorney Jerry Canfield advised the Board of Directors to not accept a settlement offer from attorney Joey McCutchen that would acknowledge a violation of the Arkansas Freedom of Information Act (FOIA) and set future precedent for how city directors can communicate outside of public meetings.

Canfield told directors at Tuesday’s (Sept. 12) study session that the General Assembly had yet to clarify what constitutes an official meeting and that courts, on a “case-by-case basis,” have indicated comments sent via email and other forms of communication that are visible to all members of a public body are considered public records.

Canfield said case law so far has indicated it is “the intent to determine” an outcome that sets the conditions for what might be considered a public meeting.

“While I’m not a prophet or the son of a prophet,” Canfield said, it was his opinion McCutchen’s complaint failed to establish a FOIA violation, though he does believe the Assembly will eventually have to clearly define what a public meeting is. One example Canfield pointed to in reaching his opinion was how the Board’s meeting packets are not considered meetings themselves, but rather public records to inform discussion.

McCutchen filed suit against the city after an email string launched by City Director André Good complained about the civil service commission’s refusal to take up a hiring request from Fort Smith Police Chief Nathaniel Clark. The complaint alleges that Good sent an e-mail to City Administrator Carl Geffken on May 23 noting that “progress will not happen as long as this closed system persists” after the request to hire upper management from outside the department died for lack of motion.

McCutchen asks in the complaint that the court stop city officials from “conducting public business through a series of emails without providing the public with notice of the emails and giving the public the opportunity to provide input in the emails.”

McCutchen told Talk Business & Politics he found it “bizarre and a bit arrogant” the city has yet to respond to his settlement offer after being given multiple chances to do so and in spite “of how many hundreds of thousands of dollars this might cost the taxpayers of Fort Smith.”

“They didn’t even discuss it today. That’s the bizarre thing. Any two members can vote to put it on the agenda, and I’ve given them two times now,” McCutchen said, adding of Canfield’s comments that he “keeps talking about how the Supreme Court hasn’t defined what a meeting means.”

“The court in McCutchen vs. the City of Fort Smith (2012) told the city if they wanted the definition of a meeting, they should approach the legislature. They’ve let three legislative sessions pass and haven’t asked a legislator to bring legislation on the issue, so they obviously aren’t concerned enough about it.”

McCutchen said his next steps will include pushing for discovery and a motion for summary judgment at the circuit court level. He said he hopes to have the case before the court before the end of the year.