Fort Smith loses bid on legal fee relief in FOIA lawsuit

The city of Fort Smith might have prevailed in a lawsuit filed against them in December alleging Freedom of Information Act (FOIA) violations in regard to proposals related to 0.75% sales and use Tax, but will not get relief from more than $13,000 in legal fees tied to the case.

Circuit Court Judge Greg Magness issued an order Tuesday (Jan. 11) denying the city’s motion for attorney fees in the matter of Kristin Kitchens v. City of Fort Smith, leaving the city responsible for the approximate $13,500 spent defending the action. Magness ruled in favor of the city of Fort Smith in the lawsuit alleging FOIA violations on the part of the city in regard to proposals related to 0.75% sales and use Tax, on Dec. 16, stating the city did not violate the law.

On Dec. 29, the city filed a motion for legal fees in association with the lawsuit, claiming the city is entitled to reimbursement of its attorney fees under FOIA. The FOIA stipulates the city is entitled to recover its “expenses” only if “the action was initiated for frivolous or dilatory purposes.” In his order, Magness said, “It was clear from the plaintiff’s testimony and from the legal arguments made by her counsel that the filing of the action was not for frivolous or dilatory purposes.”

“Further, the area of law dealing with FOIA and agenda setting is not so well settled that the instant case was clearly frivolous, as Defendants contend,” the order said.

The city paid Daily & Woods Attorneys at Law $13,168 in attorney’s fees and $357 in expenses in the matter, according to Shari Cooper, the city’s public relations and communications manager. Colby Roe and Jerry Canfield represented the city at the Dec. 15 trial.

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.

Canfield argued during the trial 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 that would generate around $300 million in revenue over 20 years. McCutchen’s lawsuit stated 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.