Attorneys for the city of Fort Smith and the McCutchen & Sexton Law Firm made their cases before the Arkansas Freedom of Information Act (FOIA) Task Force at a meeting in Little Rock on Monday (July 16).
Task Force chairwoman Ellen Kreth told Talk Business & Politics that attorney Jerry Canfield — appearing on behalf of the city — requested the Task Force to consider making recommendations of the legislature that would institute a formal definition for a public meeting.
Canfield made the request in response to a pending lawsuit with the Arkansas Supreme Court in which the city is appealing a lower court ruling. In the Jan. 5 ruling, Judge J. Michael Fitzhugh said a series of emails written in May and August of 2017 between Board members and City Administrator Carl Geffken were in violation of FOIA. 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.
In the ruling, Judge Fitzhugh ruled in favor of Bruce Wade, McCutchen’s client, 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 was 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.”
Canfield’s Monday presentation endorsed the position in his March 30 letter to the Task Force. In the letter, Canfield wrote that the law, which decides the basis of a meeting through case law, “chills the speech of the governing body,” adding that local officials “overwhelmingly support but do not know how to apply” the law because of the FOIA statute’s ambiguity. Canfield also said the city spends many resources ensuring compliance with FOIA and argued the lack of clarity threatens the First Amendment rights of locally elected officials, who are made to follow more stringent rules than judicial, state, or federal officials.
“The members of local governing bodies do not park their constitutional rights when they enter into public service,” Canfield wrote. (Link here for a PDF copy of Canfield’s letter.)
Sebastian County Quorum Court member Danny Aldridge also attended and spoke in support of Canfield’s position, while McCutchen & Sexton attorney Stephen Napurano presented the opposing view. Arkansas Democrat-Gazette Managing Editor David Bailey also spoke in opposition. Talk Business & Politics has requested minutes from the meeting, which were not available as of Tuesday (July 17).
In an email statement to Talk Business & Politics, attorney Joey McCutchen asked: “Why is the City of Fort Smith always trying to gut the Freedom of Information Act? If the Board of Directors is able to use email to circumvent open meeting requirements, then any governmental body that is equipped with computers can hold secret, backroom meetings. The intent of open government would be circumvented if this is permitted.”
Kreth said the Task Force is in the process of going through unenacted FOIA bills that came through the last legislative session.
“So far, we’ve made our way through eight bills,” she said, adding that recommendations from the Task Force will be non-binding but could be voted on in the next legislative session. The next meeting will be held Oct. 15 with a final report due on Nov. 1.
UPDATED INFO: McCutchen contacted Talk Business & Politics with a summary of Napurano’s points late Tuesday, noting the Arkansas FOIA has “worked well since 1967” and there was no need “to change any part of it.”
“FOIA is intended to ensure transparency in government, allowing the public to be advised of the performance of public decisions,” the summary memo stated. “As the Arkansas Supreme Court has said, the public is entitled not only to know the decision made by a governing body but the ‘why’ or the reasons behind the decision.”
Napurano pointed the Task Force to El Dorado Mayor vs. El Dorado Broadcasting Co., 260 Ark. 821, 544 S.W.2d 206 (1976), in which the Court gave notice of what actions constitute an “informal meeting.” Per the case, the open meeting provision of FOIA applies to “any group meeting … at which members … less in number than a quorum meet for the purpose of discussing or taking any action or any matter on which foreseeable action will be taken by the city council.”
Napurano argued the El Dorado case, which applies to individual meetings of less than a quorum, meant that “Fort Smith’s claim that it is not trying to undo any decision of the Supreme Court is wrong.”
The summary continued: “Fort Smith wants to require a ‘quorum’ to be present, which is inconsistent with the El Dorado Mayor decision. Fort Smith has a governing body of seven members. The proposed definition would allow three members to meet and make a decision on an issue. The proposed definition also only prohibits serial meetings ‘of individual members with any third party or series of third parties.’ Therefore, if three members meet, make a decision, then one of the three contacts a fourth for a decision, there is no violation of FOIA because no ‘third party or series of third parties’ is involved.”