FORT SMITH -- A circuit court judge rejected Monday a motion by the school district to dismiss a lawsuit that claimed School Board members violated the Arkansas Freedom of Information Act.
"Treating the factual averments of the complaint as true, and viewed in the light most favorable to plaintiff, the motion must be and hereby is denied," Sebastian County Circuit Judge Stephen Tabor wrote in his two-paragraph order.
Fort Smith attorney Joey McCutchen, representing local resident June Bradshaw, sued the School Board in November over board members' email discussion on the election of board officers for the school year.
McCutchen asked the judge to rule that the emails the board members circulated among themselves from Oct. 8-14 constituted a meeting for which no notice was given. The suit asked the judge to order the School Board not to conduct its business outside the public's view.
School district attorney Mitch Llewellyn argued in the motion to dismiss, filed last month, that the email discussion was not a public meeting because no official business was conducted.
"The emails in this case were a sharing of information and no action was taken during the email exchange," Llewellyn wrote. "No vote was taken and no commitment by any board member to a slate of officers was sought."
Board President Deanie Mehl said the emails that made up the discussion also were made a part of the official record of the Oct. 24 meeting during which the board elected officers.
The first email was sent Oct. 8 by former board Vice President Jeannie Cole, who wrote a lengthy message that she would not accept re-election to the position. Her email was in response to the suggestion at the board's Sept. 29 committee of the whole meeting that current officers be re-elected.
Cole wrote in the email that she thought the positions should be rotated, as they have been in the past, which would make her board president now.
On Oct. 10, Mehl responded to Cole's email and said because Cole wasn't willing to continue serving as vice president, board members should suggest a new slate of officers.
The next day, board member Wade Gilkey suggested a slate with Mehl as president, Susan McFerran as vice president and Bill Hanesworth as secretary. That slate is what the board approved at the Oct. 24 board meeting.
Other board members also contributed to the discussion, according to the emails.
McCutchen consulted Sebastian County Prosecuting Attorney Daniel Shue about the emails and Shue determined, in a letter to the board in November, that the email discussion violated the Arkansas Freedom of Information Act. He quoted a court precedent that said the act was meant not only to learn and report the actions of officials but the reasons behind their actions.
He was asked by McCutchen not to prosecute the board members but to give them a reminder they should comply strictly with the Freedom of Information Act.
Board members discussed during a meeting last month whether to continue bearing the expense of opposing the lawsuit, which could reach an estimated $70,000, or agree to a settlement proposed by McCutchen under which board members would admit they violated the act.
The board tabled a decision.
State Desk on 01/24/2017