Fort Smith attorney seeks misdemeanor charge against city boss

A request by Fort Smith attorney Joey McCutchen to charge Fort Smith City Administrator Carl Geffken with a misdemeanor for violating Arkansas’ Historical Monument Protection Act “should be given short shrift,” according to an attorney representing the city.

McCutchen on Friday (Sept. 16) delivered a letter to Sebastian County Prosecuting Attorney Dan Shue asking him to charge Geffken with a misdemeanor for violating the act.

“The City has made it clear that it refuses to reinstall this monument without a Court order despite the Arkansas History Commission rejecting its waiver request. This is a clear violation of the Historical Monument Protection Act which expressly prohibits the removal, alteration, or rededication of historical monuments,” McCutchen noted in the letter.

In April 2020, the city removed seven flags in the display because of age and condition. The display represented the flags flown over Fort Smith since 1699, including The French Fleur-De-Lis flag; the Spanish Cross of Lorraine flag; the French tricolor flag; the U.S. flag with 15 stars; the U.S. flag with 20 stars; the U.S. flag with 24 stars; and the Confederate States of America flag depicting a circle of seven stars with red and white stripes. Brass markers identifying each flag were on the base of the flag poles.

McCutchen filed suit June 3, 2021, in Sebastian County Circuit Court seeking a declaratory judgment that the city violated the Arkansas State Capitol and Historical Monument Protection Act when it removed the historical flag display, which was erected in October 2001. The city noted in correspondence with the Arkansas History Commission that it did not want to replace the Confederate Flag because “many people in our community find historical associations with the Confederacy emotionally charging and potentially provocative.”

Sebastian County Circuit Court Judge Gunner DeLay ruled that the city seek a waiver from the Arkansas History Commission for any plan to dispose of the previous display items. On Sept. 8 the Arkansas History Commission denied the city’s waiver request, but included in the action the option for the city to appeal the decision.

Colby Roe, an attorney with the Fort Smith law firm Daily & Woods who represented the city, said in response to McCutchen’s request to take legal acton against Geffken that the commission did reject the waiver “but did not order the City reinstall the subject display.” Roe also noted that Delay’s ruling also noted that the city did not violate the Historical Monument Protection Act because the city’s display was removed prior passage of the Act. Indeed, Judge Delay ruled that the city’s action to remove the display “does not constitute a violation of the Act.”

“As is evident from Mr. McCutchen’s recent correspondence in the litigation seeking the entry of an order directing the City to reinstall the subject display, he is apparently dissatisfied with the outcome of the litigation. However, as the record in the litigation reflects, the City has complied with the decision of the History Commission and the circuit court’s orders entered therein,” Roe noted in a Friday letter to Shue.

Shue confirmed with Talk Business & Politics he had received letters from McCutchen and the city, but declined comment on the issue or how he planned to handle the matter.