Sebastian County Prosecuting Attorney Daniel Shue found that Fort Smith city officials violated Arkansas' public-meeting law by discussing city business via email, but he declined to file criminal charges.
Instead, Shue warned Tuesday that any future infractions against the Arkansas Freedom of Information Act would compel his office to "take further action."
The prosecutor didn't explicitly say in his letter to city officials or in a news release Tuesday why no charges would be filed. He also didn't return a phone message or respond to emailed questions Monday evening.
A person who "negligently" violates the Arkansas Freedom of Information Act is guilty of a Class C misdemeanor, according to state law.
The Sebastian County sheriff's office began investigating the Fort Smith Board of Directors' email use after two residents complained, according to a letter Shue sent to the board Monday. The first series of emails -- in which several directors discussed the dissolution of the Fort Smith Civil Service Commission -- occurred in May. The second series of messages -- which centered on a lawsuit stemming from the first series of emails -- was exchanged earlier this month.
Shue thanked the directors for their service in his letter, noting that none of their actions were "nefarious."
"However, no violations like the ones that have occurred should be allowed to occur in the future," Shue wrote. "The public deserves to be privy to all of the Board's hard work, not just some of it."
The legality of email exchanges between members of public boards and commissions -- and whether those correspondences comprise a "public meeting" -- has long been debated by transparency advocates and public servants.
Arkansas Code 25-19-106 states, in part that "all meetings, formal or informal, special or regular, of governing bodies of all municipalities, counties, townships, and school districts and all boards, bureaus, commissions, or organizations of the State of Arkansas, except grand juries, supported wholly or in part by public funds or expending public funds, shall be public meetings."
Several Arkansas attorneys general have issued opinions, which are not binding, that equate emails between members of public governing bodies to public meetings, which require advance public notice.
Shue also cited a recent court decision in a state Freedom of Information Act suit against the Fort Smith School Board. In that case, Sebastian County Circuit Judge Stephen Tabor ruled that School Board members violated the law by discussing the selection of new board officers in an email chain.
While no one will be criminally charged, three city directors -- Keith Lau, Andre Good and Mike Lorenz -- are still defendants in one of two pending civil suits related to the email exchanges. The second suit names the city of Fort Smith as the sole defendant.
The plaintiff's attorney in both cases, Joey McCutchen, said in a phone interview Tuesday that he was satisfied with Shue's decision.
"There's a big stick now if they violate the Freedom of Information Act again and keep operating in private. They'll be prosecuted," McCutchen said. "It's sad it has to come to criminal prosecution."
McCutchen said he hopes rulings in the suits he brought will clarify whether emails between members of public boards violate the law.
Lau said Tuesday that he would refrain from emailing other board members in the future, but he expressed exasperation about only being able to discuss city business in a public meeting.
He said he has approached his state representative about possibly amending the Arkansas Freedom of Information Act when state lawmakers convene.
"I think now is a good time to have a discussion at the state level to update the [Freedom of Information Act] for the digital age," he said.
Lau added that he's a strong proponent of government transparency and there was no malicious intent in discussing city business through email.
Lorenz declined to comment in an email, and Good did not respond to emailed questions.
McCutchen, representing Bruce Wade of Fort Smith, brought the initial suit against Fort Smith in June after several emails were exchanged by city directors from May 21 to May 31, discussing the dissolution of the city's Civil Service Commission. The complaint said the emails constituted a public meeting.
The suit against the three city directors came earlier this month after McCutchen offered to settle the suit with the city. Lorenz, Lau and Good discussed the proposed settlement through email, prompting a new complaint from Wade.
The city has not agreed to the terms of the settlement, which would require the city to admit it violated the Freedom of Information Act.
Metro on 08/30/2017