Rogers' city attorney gets check, quits

ROGERS -- A city attorney in Northwest Arkansas has agreed to leave his elected office as part of a $390,000 settlement with the city of Rogers. The amount is close to what his salary would have been if he had finished out his term.

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Ben Lipscomb

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NWA Democrat-Gazette

Rogers Mayor Greg Hines

The cost of the settlement and the elected official's willingness to step down in return for the buyout are rare, according to the Arkansas Municipal League.

Under the agreement, Rogers officials are paying City Attorney Ben Lipscomb $253,222, after taxes, to leave office. Also, Lipscomb, 53, agreed to drop a federal lawsuit against the city. U.S. Magistrate Judge Erin Setser signed an order Thursday that dismissed that lawsuit.

Lipscomb received the check and signed the settlement documents Thursday.

Those documents show that Lipscomb, the city attorney for 24 years, agreed to never again run for public office in Rogers. In addition, he agreed to never again use an ID badge that identifies him as city prosecutor, something he was accused of doing at a public event last summer to gain access to a VIP area.

The settlement said Lipscomb may not use the Freedom of Information Act to "harass" city officials. In addition, Lipscomb's wife, Lauri, must drop a health-privacy-act complaint against the city.

Rogers officials hope the buyout ends a months-long dispute.

"The fact is we either continue down the path we are on, or pay today and heal tomorrow," Rogers Mayor Greg Hines said earlier this week. "We are dealing with someone who was elected, and there is no solution other than this person voluntarily leaving their position."

Lipscomb's settlement resolved more than just the lawsuit, Hines said Thursday, when the parties finalized the agreement.

"We were faced with some varying issues and obstacles," Hines said Thursday. "At the end of the day, the best resolution for us and Mr. Lipscomb was to seek the settlement that we came to."

Lipscomb declined to comment other than to say, "I look forward to the next chapter in my life."

All parties -- including city officials, Lipscomb and his wife -- agreed not to disparage other parties in the settlement, according to the documents obtained late Thursday.

In November, Lipscomb filed a civil rights lawsuit against the mayor and City Council in federal court. He contended that the council violated his constitutional rights when it transferred most of his duties to a staff attorney who answers to the mayor. Those duties include acting as the city's attorney in all civil litigation, along with providing services to the council and mayor.

Three Rogers aldermen had signed affidavits saying that Lipscomb suggested the changes in his job duties. Hines also previously said Lipscomb recommended the changes.

In addition to that matter, the county prosecutor had refused to commission Lipscomb to prosecute misdemeanor cases in Rogers District Court, and the city's water and sewer board stopped using Lipscomb's services.

He had remained responsible for prosecuting city code violations, and Hines said Lipscomb handled less than 20 city code violations a month.

Settling the lawsuit

The settlement payment is the city's second to a top official in the past eight months. The city paid its former finance director Jerry Hudlow $630,000 in May. Hudlow had sued in U.S. District Court after he was fired and was awarded restitution and job reinstatement. Hudlow now works as Lowell's finance director.

The city's total cost of settling with Lipscomb will be $403,002, Hines said. That includes $13,002 that the city will pay in taxes.

Ultimately, Hines said settling with Lipscomb is less costly than paying Lipscomb until the end of his term in December 2016.

The city estimated that it could cost $379,968 if Lipscomb remained on the payroll through the end of his term. That included $310,101 in salary for nearly two years, sick and vacation time, and costs associated with operating Lipscomb's office.

The Arkansas Municipal League will pay $53,927 of the settlement, Hines said.

He said he plans to propose that the city attorney position be changed so that the salary will be a small stipend.

In the meantime, someone will be appointed to fill the position, he said. Unless a change is made, the position will be up for election in November 2016.

'Unique circumstances'

Hines said the decision to settle was more complicated than just paying an elected official to resign. "There are no provisions in state law that allows a city to remove an elected official," Hines said.

Residents can file lawsuits to remove an elected official, he said, and residents can orchestrate a recall election.

Justin Eichmann, an attorney for Rogers, said a recall election wasn't a viable solution in this case. The Arkansas Municipal League hired Eichmann -- an attorney with Harrington, Miller, Kieklak, Eichmann & Brown of Springdale -- to handle Lipscomb's lawsuit for the city.

Arkansas law requires that to hold a recall election, petitions must be filed with the county clerk between 91 and 105 days before a general election, Eichmann said. The next general election is in 2016.

Don Zimmerman, executive director of the Arkansas Municipal League -- a nonprofit association that is the leading lobby for cities -- said it's rare in Arkansas for a city official to be removed from office.

There have been about eight attempts to remove a city official out of the "hundreds and hundreds" out there subject to a recall provision that was passed in 2009, Zimmerman said. Few of the attempts were successful. And, in at least one case, the removed elected official later won re-election, he said.

Most of the removal attempts were for officials in small towns, he said.

"These are pretty unique circumstances," Zimmerman said of the settlement in Rogers.

Hines said every option to resolve the issue was vetted by city officials and attorneys.

"Given the circumstances that we are in, I think this settlement is the appropriate way for the city to move forward," he said.

A section on 01/30/2015

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