Judge rules in favor of city of Fort Smith on alleged FOIA violation

Circuit Court Judge Greg Magness on Thursday (Dec. 16) ruled in favor of the city of Fort Smith in a lawsuit alleging Freedom of Information Act (FOIA) violations on the part of the city in regard to proposals related to a 0.75% sales and use Tax, stating the city did not violate the law.

Fort Smith Attorney Joey McCutchen filed the lawsuit in Sebastian County Circuit Court Dec. 7 on behalf of Kristen Kitchens alleging 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 stated 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.

According to the complaint, 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 during a hearing Wednesday (Dec. 15) that 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. Through a series of phone calls coordinated by City Clerk Sherri Gard, board members moved to remove one of the options with the 0.75% tax.

Because the item removed was part of the agenda item No. 4, Little Rock Attorney and FOIA expert Robert Steinbuch, who presented closing arguments for the plaintiff in the case, said the action constituted discussion and decision making. 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 said in his ruling that the actions of removing the item from the agenda were in “strict compliance with the Municipal Code.” He also said the court could not find that the plaintiff proved the city had violated FOIA in its proceedings.

“Their compliance with (the Municipal Code) did not violate the open meeting requirement of FOIA … nor did the serial phone calls from the Clerk to the Directors rise to prohibition found in Rehab Hospital or Harris v. City of Fort Smith (previous FOIA cases),” the decision said. “Consequently, there was just no ‘substantive legislation action’ taken in this case to constitute a violation of FOIA.”

McCutchen said he is evaluating an appeal of the decision.