City seeks dismissal of suit over police chief hiring; Arkansas rule on 'infamous crime' doesn't apply, filing says

Jacksonville City Attorney Robert Bamburg last week asked the Pulaski County Circuit Court to dismiss a lawsuit filed against the city over its recent hiring of a police chief.

The lawsuit, filed April 26 by Alderman Tara Smith, claims that Police Chief Geoffrey Herweg is ineligible for the position under the Arkansas Constitution. The suit cites an amendment that bans anyone convicted of an "infamous crime," which includes a crime of dishonesty, from holding an office of public trust.

Herweg, who was sworn in as police chief April 14, was convicted of misdemeanor counts of filing a false police report and failure to report an accident in Williamson County, Texas in 2002. Court filings show Herweg crashed a vehicle into a home on Christmas Eve in 2000, abandoned the vehicle and lied to police about it being stolen.

Bamburg, in the city's motion for dismissal, argued that the statute at issue only applies to elected officials and that Jacksonville Mayor Gary Fletcher has the power, under Arkansas law, to appoint and remove any department head in the city.

"Plaintiff's allegations that Mayor Fletcher acted without authority or in violation of [Article 5, Section 9 of the state constitution] is without merit, for the Jacksonville Police Chief is not an elected position, will not be an elected position, and the constitutional limitations on eligibility for elected candidates/officials cited by Plaintiff simply do not apply to appointed positions," the motion states.

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Bamburg had not responded to a request for comment late Friday.

Fletcher hired Herweg, 53, after a national search for a new police chief that yielded 31 candidates from 14 states. Herweg was chosen over Chief Deputy Kenneth Scott of the Orleans Parish, La., sheriff's office. Both men have more than 20 years of experience in law enforcement.

Fletcher said Herweg was honest about his past during the interview process. He has repeatedly defended his decision to hire Herweg and accused Smith of opposing the hire for personal and political reasons.

Smith, who was elected to her first term as an alderman in November 2014, has denied that claim.

Smith's lawsuit lists Herweg, Fletcher and City Clerk-Treasurer Susan Davitt as defendants.

It seeks an emergency temporary restraining order against Herweg to remove him as police chief on the grounds that his record of dishonesty jeopardizes police investigations and public safety.

The suit states that any salary payments made to Herweg -- his salary is $81,600 per year -- have been "illegal and improper" and seeks for taxpayers to be reimbursed.

Bamburg, in the motion for dismissal, argued that Smith's suit should be thrown out under a law that requires anyone seeking injunctive relief from a court to first seek "adequate remedy which exists under the law." The motion states that Smith could have done that by requesting a special vote of aldermen to override Fletcher's hire.

Smith, by her own account, did not.

"Plaintiff's suit is barred by law and her own inaction/failures to act," the motion states.

Attorney and former state representative Nate Steel, managing partner of the Little Rock law firm that filed the suit on Smith's behalf, said Friday that he hadn't reviewed the dismissal motion. Steel said he did not have immediate comment.

Steel co-sponsored the amendment under which Herweg's eligibility for police chief is being challenged.

That amendment, Act 724 of 2013, modified the Arkansas Constitution to ban anyone convicted of "a misdemeanor offense in which the finder of fact was required to find, or the defendant to admit, an act of deceit, fraud or false statement" from holding an office of public trust.

Herweg, whose law enforcement credentials in Texas were permanently revoked after his conviction, has declined interview requests since being named Jacksonville police chief.

The Jacksonville Fraternal Order of Police said in a statement before Herweg was sworn in that it had "concerns" about the hire.

Circuit Judge Alice Gray set a hearing in Smith's lawsuit for June 19.

Metro on 05/22/2017

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