Judge Magness hears arguments about alleged city of Fort Smith FOIA violations

Though Arkansas Municipal Code allows procedures for removing items from an agenda, Little Rock Attorney and Freedom of Information Act (FOIA) expert Robert Steinbuch argued that the way “part” of an item was removed from the Nov. 16 Fort Smith Board of Directors meeting agenda was an FOIA violation and constituted a secret meeting.

Sebastian County Circuit Judge Greg Magness heard arguments Wednesday (Dec. 15) from both sides concerning a lawsuit alleging FOIA violations by the city of Fort Smith. The suit was filed Dec. 7 in Sebastian County Circuit Court by Fort Smith attorney Joey McCutchen on behalf of Kristin Kitchens.

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 city directors concerning two proposals related to a 0.75% Sales and Use Tax. The complaint states the board privately rejected a proposal which would have given a percentage of the money collected by the tax to the parks department, according to McCutchen. His complaint alleges the vote constituted an informal meeting and illegal vote which was not public and for which no notice was given.

City Attorney Jerry Canfield argued Wednesday the city followed the Fort Smith Municipal Code that states “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.”

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.

Director Lavon Morton contacted Gard at 3:39 p.m. Nov. 12 and asked that proposed ordinances 4B(1) and 4B(2) be removed from the agenda. Gard then followed the city’s rules and called the other board members to see if they gave “conconcurrence” to removing the agenda item. 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 wrote in a Nov. 12 email.

Because the item removed was part of the agenda item No. 4, Steinbuch who presented closing arguments for the plaintiff in the case, said the action constituted discussion and decision making.

“(FOIA) is very clear that discussion and decision making must be done in public,” he said.

Canfield argued that though the item removed was 4B, it was a separate agenda item because if left on the agenda, it would have been voted on separately. He also argued that any director could have amended the ordinance voted on in the meeting to include what was in the removed item.

Magness asked Canfield what would keep a city from listing 10 potential ordinances and having various board members call in and have one by one removed until the most favorable item, which everyone agreed on, was all that was left on the agenda. Canfield replied that the city had never done anything like that and board members would still have the ability to amend the ordinance.

Magness also asked why it is city policy to “poll” all directors concerning the removal of an agenda item if the code states that only three directors have to agree with the one requesting the item be removed.

“Why don’t you stop calling once three agree? Why call all the directors and get their concurrence? That sounds like taking a poll to me,” Magness said.

In the complaint, McCutchen asked that the court “issue an order declaring and finding that the Board of Directors of the City of Fort Smith (acting in their official capacity which amounts to action of the City of Fort Smith) violated the Arkansas Freedom of Information Act, issue an order precluding such conduct in the future, for attorney’s fees, and for such other relief as is just and proper.”

At the hearing, the plaintiff also asked that the Nov. 16 vote on the tax ordinance be nullified, requiring the directors to have the discussion and vote on the tax and upcoming special election in a future meeting. The city objected to that addition, saying it was brought up in an untimely manner and that even if the Nov. 12 actions constituted a secret meeting per FOIA, the Nov. 16 was a public meeting and the actions taken at it were not in violation of FOIA.

Magness said he should have a decision on the case before 5 p.m. Thursday (Dec. 16).