FOIA lawsuit loss will be appealed says Fort Smith city boss

by Aric Mitchell ([email protected]) 1,133 views 

Fort Smith City Administrator Carl Geffken was short on details but certain of one thing in comments following Tuesday’s (Jan. 9) study session: the city would be appealing its recent loss in a lawsuit filed by Fort Smith attorney Joey McCutchen.

McCutchen successfully argued in front of Sebastian County Circuit Court Judge J. Michael Fitzhugh that certain email exchanges between Geffken and city directors Keith Lau, Andre Good, and Mike Lorenz had violated Arkansas Freedom of Information Act (FOIA) laws.

Geffken told Talk Business & Politics that per the order McCutchen is “allowed to put in and submit his fees and costs and whatever else, which, Judge Fitzhugh, I believe, in the order, has asked to be submitted to him, but we will be appealing.” Geffken said he would have to get with Jerry Canfield, the city’s attorney, to work out the details. Fitzhugh gave McCutchen 30 days to submit his costs and attorney’s fees. The city will have 20 days to respond to that request after which Fitzhugh will issue his final ruling. The city can then file a notice to appeal to an appellate court.

Lau, one of the city directors specifically called out in Fitzhugh’s order, told Talk Business & Politics that “obviously I was disappointed about it and still contend the law needs to evolve to take into consideration emails, texts, and social media.”

“I think what we’re going to do — coming on line in the next month, which may not meet the Judge’s interpretation but hopefully … will be a great thing — is that we’re having a repository of all emails back and forth between all city directors and administration. It is going to be accessible to the press and to the public. It will be searchable with keywords and the whole thing. Hopefully that will adhere to some degree.” Lau said he still has “a fundamental problem with (the idea that) replying to all with an opinion constitutes a meeting, and I can’t talk to or ask a fellow director a question unless I’m in a public meeting or get their opinion on something?”

Lau said that “how we think things get done, and how it is legislated how things get done, are two different things, and that applies to all forms of government. When I say that, let’s point specifically to the state legislature and how the state legislature is not a part of FOIA or not as tightly controlled, and our federal government isn’t. One example: how a majority Whip gets things done. How does that happen? Well, they pick up the phone and they call their constituent and they debate why that constituent should line up behind a particular bill. And that’s what the Whip’s function is. You can’t do that at the city level, but they do it all the time, and that’s how stuff gets done in government.”

Lau said the “other side of it is, this suspicion that we’re doing something behind somebody’s back and formulating policy.”

“No, we formulate policy in a meeting when there’s a vote. What we’re doing is getting information so that we can make a good decision,” Lau said.

He continued: “I don’t know, it’s just real frustrating to me, and I think we’re going to appeal that. The word is, it’s going to be appealed.”

One issue with “the word being” that the city is going to appeal, for McCutchen, is that the decision to appeal, like the sending of emails, did not appear to be handled in a public setting. McCutchen sent Geffken an offer on Jan. 8 in which he agreed to waive all attorney’s fees if all defendants “waive any right to appeal or file any post-trial motions.”

“By doing so, the city of Fort Smith will likely save many tens of thousands of dollars,” McCutchen said, pointing out that the city has already spent $31,000 defending their case and is likely to spend $50,000 more “with no real chance of success on appeal.”

“I first want to know why the Board was not involved in the decision (to appeal) and how Geffken can make that decision unilaterally without talking to the Board, who, in my opinion, should be making that decision because they’re responsible to the voters,” McCutchen told Talk Business & Politics on Tuesday. “I guess I’m surprised to hear Mr. Geffken making that decision pretty cavalierly without addressing it with the Board, if he has not addressed it with the Board in a public meeting. I understand they need to have a discussion particularly since I have made them an offer that would save the taxpayers thousands upon thousands of dollars, not only my attorney fees and costs, but also the attorney fees they’re going to have to pay the city attorney (Canfield), especially in light of the fact the city attorney seems to be the only authority on FOIA who thinks this is not a violation. We’ve had the prosecuting attorney say these secret email chains are illegal. Judge Fitzhugh says it’s illegal. Robert Steinbuch, professor of law at UALR (University of Arkansas at Little Rock), says that it’s a violation of FOIA, and we’ve had numerous Supreme Court and Attorney General opinions that have said this is a violation of FOIA. I think it’s arrogant for the City Administrator to apparently make that decision without discussing it.”

McCutchen said Geffken’s call to appeal — which was not discussed in Tuesday’s study session but instead shared with the press afterward — is “just like decisions at the heart of this lawsuit. It can’t be made in email chains, nontransparent phone calls, or meetings at city hall the public does not receive notice of.”

The crux of the case is a series of emails written in May and August of 2017 between the Board members and Geffken. The emails centered on Fort Smith Police Chief Nathaniel Clark’s desire to amend rules of the Civil Service Commission (CSC) to allow hiring and/or appointment of officer positions to include external applicants, a decision opposed by the Fraternal Order of Police (FOP) that was allowed to die for lack of motions at the commission’s May 22 meeting.

On May 21, Director Good sent an email to Geffken, Mayor Sandy Sanders, and fellow city directors asserting the FOP threatened a “no confidence” vote on Clark. “What is of importance,” Fitzhugh wrote, “is that Director Good recommended that the CSC be ‘completely removed and dissolved…’ He also sought from the other directors, Mayor and City Administrator a full commitment to the new Chief. Since the responsibility for the appointment and dissolution of the CSC is left to the city’s governing body, here the Board of Directors, such actions would have to occur in a public meeting.”

On May 23, Good sent another email concerning the May 22 meeting requesting Geffken to again forward it to “the entire board of directors.”

“Besides reciting what he observed at the CSC meeting, he set forth his personal opinion as to the CSC and again sought the dissolution of the CSC ‘as quickly as possible.’ … Geffken responded that he was not in favor of a ‘more restrictive policy.’ Director Mike Lorenz replied by email expressing his vote on the issues wherein he stated ‘I agree with you both,'” wrote Fitzhugh in his final order.

On May 30, Geffken sent an email to the Directors and Mayor setting forth the options available to the Board to address the external hiring of applicants, one of which was dissolution of the CSC. In a May 31 email, Lorenz stated he did not “understand the need or function of the CSC” and that other avenues including the use of the human resources director could handle disputes normally heard by the commission.

Finally, in August, Geffken sent an email to Sanders and the Board with a proposed settlement of this pending document. The matter was addressed at the Aug. 15 meeting. Geffken expressed not only his but city attorney Jerry Canfield’s recommendation the offer be rejected. Shortly thereafter Director Lau emailed his position on the offer which was “I do not want to settle….”

Good sent a follow-up email to the Board expressing his “whole-hearted” support. Lorenz also emailed his position on the settlement.

“Under the facts of this case the Court concludes that informal meetings subject to the FOIA were held by way of emails. The purpose of which were to either opine or survey the members as to the demise of the CSC and/or acceptance/rejection of a settlement. These are clearly matters that should have occurred in a public setting,” Fitzhugh wrote, adding that the city was “permanently enjoined from conducting public business in this matter without notice.”