Fort Smith Board appeals court ruling, approves $400,000 for skate-bike park

by Aric Mitchell ([email protected]) 617 views 

The Fort Smith Board of Directors on Tuesday (Feb. 6) formally endorsed appealing Fort Smith attorney Joey McCutchen’s legal victory against the city for violations of the Arkansas Freedom of Information Act (FOIA), and approved an over-$400,000 contract for a public-private park in downtown Fort Smith.

Board members also rejected a proposal to streamline city operations through administration.

First off, the Board approved the filing of an appeal by city attorney Jerry Canfield on behalf of the Board in response to a Sebastian County Circuit Court Judge’s Jan. 5 ruling. Canfield’s preemptive strike was to beat the 30-day response period the city had before the order became final. Had the city waited for the Tuesday (Feb. 20) regular meeting, the judgment would have automatically become final in McCutchen’s favor. Canfield’s decision received Board support as city directors were almost unanimous in favor of fighting the ruling in a Jan. 23 study session. On Tuesday, Director George Catsavis was the only dissenting vote.

Canfield strongly advised the Board to appeal the decision of Circuit County Judge J. Michael Fitzhugh, claiming ambiguities in the order failed to answer the city’s focus of what constitutes a meeting. He also noted the way Fitzhugh’s order was written, it could have made contacts between the City Administrator and Board potential violations of FOIA law.

The crux of the case is a series of emails written in May and August of 2017 between the Board members and City Administrator Carl 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 Jan. 5, Judge Fitzhugh ruled in favor of McCutchen, noting that “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.”

As of Jan. 1, 2018, the city had paid $31,000 in legal costs defending the case. McCutchen, in contacts with Canfield prior to the meeting, said an appeal could cost the city an additional $50,000, not counting any judgment that might be leveled against it. McCutchen’s settlement offered to waive his costs and attorney fees with an admission of guilt from the city.

Canfield said he expected the case could be on the docket of the Arkansas Supreme Court as early as this fall.

In other actions Tuesday, the Board narrowly defeated a proposed ordinance from Fort Smith Human Resource Director Naomi Roundtree that would have allowed the City Administrator to make amendments to the City of Fort Smith Personnel Handbook without a vote of the Board.

Directors Kevin Settle, Don Hutchings, Andre Good, and Catsavis voted against while Directors Keith Lau, Mike Lorenz, and Tracy Pennartz were in the minority.

The vote came down to two differing ideologies on how a City Administrator form of government should work. Settle said the ordinance was “a bad decision” prior to the vote. Reiterating the comments of citizen David Harris who also spoke against it, he acknowledged it was “a solution looking for a problem” and agreed that the Board could easily vote on needed changes in one of its 24 voting sessions each year. Settle believed voters “trust us seven to run the operations day-to-day” and felt “this is something that shouldn’t be taken out of our hands.”

Director Good said he was against the proposal because “I really value hearing back from our employees on different policies” and he had concerns that approving would change that.

To Settle’s point, Lorenz disagreed, stating he did not think it was the Board’s job to run the city, but rather the responsibility of city personnel.

“It’s our job to set policy, and I’m 100% in favor of this because it is an operational decision that should be handled through HR and not by an elected board.”

The proposed ordinance would have allowed administration to make amendments with proposed effective dates. From there, the Board would be allowed to review before the amendment became enacted. If the Board did not choose to act, the proposed effective date would go into effect. The proposal still gave the Board power of legislative action in case administration proposed changes with which it disagreed.

Lastly, the Board approved 6-1 (Catsavis dissenting) a decision to move forward with the Riverfront Skate and Bike Park in downtown Fort Smith at the former site of the United States Marshals Museum.

The park is a public-private venture in which private interests will build the park and its contents while the city will own the land and assume ownership, managing day-to-day operations. Tuesday’s approval was for Silco Construction to begin construction of the parking area and amenities improvements. Silco won the contract with a low bid of $466,511, which will be paid out of the voter-approved 1/8-cent sales and use tax.

Geffken said he believed private interests had raised over $400,000 to help the park get to its planned Memorial Day opening. First National Bank of Fort Smith is one of the donors. In October, the institution announced a $100,000 contribution. FNB President and CEO Sam Sicard said target funding from the private sector would be $600,000.