City of Fort Smith again faces FOIA lawsuit

Another lawsuit alleging violation of the Freedom of Information Act (FOIA) was filed against the city of Fort Smith Tuesday (Dec. 7) in Sebastian County Circuit Court. Fort Smith attorney Joey McCutchen filed suit on behalf of Kristin Kitchens alleging that the city violated the FOIA open-meetings provision.

The complaint and amended complaint allege that the Fort Smith Board of Directors engaged in secret meetings by way of one-on-one conversations between City Clerk Sherri Gard and voted against two proposals related to a 0.75% Sales and Use Tax. The complaint states the Board of Directors privately rejected  a proposal which would have given a percentage of the money collected by the tax to the parks department, noted a news release from McCutchen.

According to the complaint, the vote constituted an informal meeting and illegal vote which was not public and for which no notice was given.

“The City has stated that they have already paid $300 million toward the Consent Decree and apparently still owe north of $600 million. It is their intent to generate 150 million dollars through a new sales tax, which will be on the ballot on Feb. 8, 2021. Any discussions or votes regarding a special election that will affect the pocket books of the citizens of Fort Smith should be held in the light of day and not in private/secret meetings,” McCutchen said in the statement.

The board passed ordinances at its Nov. 16 regular meeting that set a special election Feb. 8 for two sales tax proposals. The first ordinance passed will extend the one-quarter of a 1% sales tax within the city being collected for 20 more years if approved by the voters in February. That sales tax is set to expire on Sept. 30, 2022. The extension would continue the sales tax until Sept. 30, 2042. Of that one-quarter of 1%, 50% will go to fire department purposes and 50% will go to parks and recreation. The sales tax generated $5.7 million in 2020.

The second ordinance will extend a three-fourths of 1% sales tax within the city for 10 more years. That sales tax is set to expire on Dec. 31, 2022. The tax was originally approved by the voters to pay the debt incurred for water and sewer projects. Those bonds will be paid in full during the third quarter of 2022, according to a memo from City Administrator Carl Geffken. The sales tax generated $16.998 million in 2020.

The complaint states that on or about Nov. 12, members of the board received an agenda packet for the Nov. 16 meeting. The packet contained four ordinances proposed by Geffken regarding the 0.75% Sales and Use Tax.

“Before finalizing the agenda packet on (Nov. 12), Geffken was apparently concerned that the Board of Directors had different opinions about how to distribute the money collected from the 0.75% Sales and Use Tax and sent an email to the entire Board,” the complaint states.

It further states that the email said, “The 0.75% sales tax that ends on (Dec. 31) is also on the agenda as item #4A. Item 4B is the ordinance calling for a special election. However, I believe that some of the Board members are interested in allocating the 0.75% between Police/Fire (0.125%), Parks (0.125%), and Sewer (0.50%) and other Board members are interested in allocating the 0.75% between Police/Fire (0.125%) and Sewer (0.625%). Since there are different opinions and since we do not want this topic to be bandied about in such a way that could deflect from the ultimate decision of the Board, there are three options to consider. The first option is to have the two choices placed on the agenda as items 4 A1 and 4 A2. The second option is to place one of the ordinances on the agenda and then amend it. The third option is to table item 4 in its entirety and place it all on a special meeting agenda before Nov. 30. This would allow the Board to consider the options further and then discuss and vote on the 0.75% sales tax then. Since the opinions are not clear, I will be placing both ordinances on the agenda.”

Director Lavon Morton contacted City Clerk Sherri Gard at 3:39 p.m. Nov. 12 and asked that proposed ordinances 4B(1) and 4B(2) be removed from the agenda.

“Morton’s action was obviously taken to remove the less favorable proposal to avoid the Board ‘bandying about’ in the upcoming Board of Director’s meeting,” the complaint states.

According to the Fort Smith Municipal Code, “Any item of business may be denied a place on or removed from the agenda by notice of four 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.”

Gard wrote in an email Nov. 12, which was distributed to the mailing list of those requesting agendas and agenda packets from the city that all remaining directors were advised of the request to remove Items No. 4B, including 4B(1) and 4B(2). Directors Jarred Rego, André Good, George Catsavis, and Robyn Dawson concurred with the request. Directors Kevin Settle and Neal Martin did not concur, the email stated. Because the majority had agreed to removing the items from the agenda, they were removed, Gard said in the email.

“While Defendant desires to characterize this as merely removing an item from the agenda, it was nothing more than a disguised vote on each option, which the Freedom of Information Act requires to be done in a public forum,” the complaint states.

Geffken said Tuesday that the removal or placement of items on an agenda by the board is a process that the City has followed per the city’s Code of Ordinance.

“I believe a very similar lawsuit was brought against the city many years ago and the lawsuit was dismissed. Since there has been no communication about this alleged infraction, we will expend the time and money to defend the City against this lawsuit, which we believe has no merit,” Geffken said.

SETTLE AND GOOD DISCUSSIONS
In the Nov. 16 meeting, Settle voiced his disapproval about the removal of 4B(1) or 4B(2) and advocated in favor of dedicating money from the 0.75% Sales and Use Tax to the parks department in accordance with 4B(1).

“There was a second proposal that was pulled by this Board that would have allowed one-eighth of the five-eighths to go to parks. But it was removed from consideration by this Board. I want to go on the record stating that we have a once-in-a-generation chance to move this City further in the future with this option by having additional parks funding. I know it got pulled, and I’m not gonna try to amend it and put it back in because I know the Board doesn’t wish that, but I wish we could have had that in there,” Settle said at the meeting.

At the meeting, Good said he was not in favor of money from the tax going to parks and had agreed to remove that item from the agenda.

“I can see Director Settle’s point. You know, we are saving quite a bit of money by not issuing a bond, but for me, and this consideration, I would have liked to have had the money, the additional funds, for parks projects. But in all honesty, thinking about having to weigh the burden of what our citizens are going to think when they go to the polls, my first question is ‘Wow, they’re considering putting my money towards parks when we are constantly being reminded of the consent decree? … (I)t was a hard decision but if we’re serious about making this vote, let’s make sure we have the money that we need to get it taken care of.”

According to the complaint, the statements by Settle and Good confirm that Ordinance 4B(1) and 4B(2) were voted on before the public meeting because the majority of the Board was not in favor of those two proposals.

“This illegal vote comes on the heels of the City Board claiming that the details of the Consent Decree cannot be disclosed due to a confidentiality agreement. And now the City Board has attempted an end-run around FOIA by secretly voting on this tax proposal,” McCutchen said.

PREVIOUS FOIA ACTION
This is not the first time in 2021 McCutchen has taken the city to task for alleged FOIA violations. Sebastian County Circuit Judge Gunner DeLay ruled June 11 the city was in violation of the FOIA by not providing McCutchen emails received by the Fort Smith “Board of Director Email Group.”

McCutchen filed the lawsuit in Sebastian County Circuit Court June 4. On May 27, McCutchen requested all emails sent or received by the Fort Smith “Board of Director Email Group” from May 1, 2020, to present. He emailed the request to City Administrator Carl Geffken, Deputy City Administrator Jeff Dingman, and City Attorney Jerry Canfield. The complaint states that none of the recipients responded to the request or to a subsequent request sent June 3 notifying the recipients they had failed to respond to his request in a timely manner. Arkansas’ FOIA states that government entities generally have up to three business days to provide a record requested under the FOIA.

Attorney Colby Roe filed a Motion for Summary Judgment June 10, claiming the contents of the “Board of Director Email Group” are not considered public records. DeLay ruled otherwise. McCutchen also received notice June 10 that his request would not be fulfilled. McCutchen said the court decided that an email account cannot send emails, so a request for all emails sent from the account was not valid, but all emails received in the email group were subject to FOIA.

“The City thumbed its nose at our request for the contents of this email group. As citizens, we need to ensure that our City is not discussing public business and making decisions without giving notice to the public as it did by non-transparently removing flags from Riverfront Park,” McCutchen said at the time of the lawsuit.