Fort Smith Board rejects settlement offer from attorney Joey McCutchen on FOIA violation

The Fort Smith Board of Directors were not ready to accept a settlement offer from attorney Joey McCutchen at Tuesday’s (Jan. 23) study session following McCutchen’s judicial victory over the city in an Arkansas Freedom of Information Act (FOIA) lawsuit decided earlier this month by Sebastian County Circuit Court Judge J. Michael Fitzhugh.

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. 4, Sebastian County Circuit Court Judge J. Michael 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.”

On Tuesday, Fort Smith Director Tracy Pennartz observed if the city were to bind itself to a ruling, it should not be at a non-precedent level and to do so would be a disservice as a matter of principle to other cities throughout the state, while acknowledging this particular injunction would pertain only to the city. Referencing Arkansas Code Title 14, Pennartz said, “A majority of the whole members of the body (four out of seven in this case) constitutes a quorum and clearly in this case no matter what communications occurred, there was no vote, no determination, or a quorum present.”

Fellow Director Keith Lau, responding to the question of “what the city gets out of this (appeal),” said fighting the case could lead to the city government becoming “more efficient in what we do,” noting the Board receives over 200 pages each week they have to review in order to make decisions.

“I’m sorry, but you can’t do business without communicating electronically this day and age,” Lau said, adding that if anything the city was becoming more transparent with its new open data portals.

City Attorney Jerry Canfield encouraged the Board to appeal Fitzhugh’s decision and said he expected their case could be on the docket of the Arkansas Supreme Court as early as this fall. Canfield said he felt an appeal “is appropriate because the order that has been issued does not address the issues that we raise in the case.” Canfield said the Arkansas General Assembly had previously determined emails to be “records, but said nothing about them being the basis for a meeting.”

Also, “Historically under FOIA, for over 50 years, meetings have been some sort of getting-together,” Canfield said, acknowledging the exception case of David Harris vs. The City of Fort Smith in which “it was the (City) Administrator going one by one by one to the Board members” to reach a decision on an issue prior to a meeting. “The court found it was an informal meeting because there was a determination, but here, there was no determination.”

Canfield continued: “If the city does not take an appeal, it will be bound by the injunction, and emails from the administrator to the Board were discussed by the court in the opinion, so the injunction order is even more unclear because it affects the ability of the Administrator to advise the Board. So we (Daily & Woods) believe the issues are appropriate for a decision that should be appealed, and we recommend this action.”

Fort Smith Directors Lau and Mike Lorenz voted to proceed with the appeal.

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.