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What law?

Governing by email by Mike Masterson | July 22, 2018 at 1:47 a.m.

The actions of local elected public servants continue to trigger distress through my gastrointestinal tract when they repeatedly and systematically act against the best interests of those who trust them to manage in a legal and open manner.

The latest example is watching the city of Fort Smith spend at least $40,000 in local taxpayer dollars to argue that a series of emails between Board of Directors members doesn't violate our state's Freedom of Information Act after a judge ruled otherwise.

The city argues there's been no foul under the law even though multiple directors cast a private vote on a public issue that later came before the entire governing body. Yes, friends, you read that correctly.

Officials using emails and texting to violate the Freedom of Information Act to me appears to be contagious throughout local governments, kinda like an outbreak of measles.

The city's worst nightmare thus far has been transparency-advocating attorney Joey McCutchen, who's become a tenacious bulldog when it comes to enforcing Arkansas' open-government laws.

McCutchen's recent lawsuits involve two series of emails sent by some on the Board of Directors regarding the local civil service commission soon after the commission did not approve a rule change being sought by the chief of police.

The move apparently angered two city directors, who indicated they wanted to either abolish the commission altogether, or support an infusion of newcomers on the commission, the attorney said.

While McCutchen has proven himself a formidable crusader for the Freedom of Information Act, he followed his usual approach of trying to educate the city and even offered to settle the lawsuit and waive his costs if Fort Smith would simply agree to admit a violation, agree not to do it again, and not appeal.

Yet, as if the good ol' boys hadn't learned a lesson from his initial lawsuit, three city directors then engaged in yet another series of secret emails sent to all directors, with those three announcing their no votes on McCutchen's generous settlement proposal.

It's apparent to me, Circuit Judge Michael Fitzhugh and prosecutor Dan Shue (among others) these secret emails violated the Freedom of Information Act. The Arkansas Supreme Court previously determined, in a case involving the city of El Dorado, the act clearly prohibits private discussions by a city's governing body "for the purpose of discussing or taking any action on any matter on which foreseeable action will be taken."

So I wonder why Fort Smith's elected officials have any difficulty understanding how eliminating one of its commissions, or settling a lawsuit against the city, are not serious matters upon which its governing body might foreseeably take action. As for any argument these issues weren't foreseeable, the directors ultimately did consider both matters outlined in the initial lawsuit and the proposed settlement offer.

The bottom line in all this needless bumfoozlement is that Fort Smith by June reportedly had run up more than $40,000 in legal fees to fight the actions McCutchen filed on behalf of Fort Smith citizen Bruce Wade.

When Judge Fitzhugh ruled the series of questionable emails indisputably violated the law, rather than accepting it and straightening up its act Fort Smith arrogantly chose to waste additional public funds by rejecting McCutchen's settlement offer and appealing to the Supreme Court.

Fort Smith has separately claimed the Freedom of Information Act prevents two city directors going out for dinner together. That's incorrect, sayeth the state's ultimate deciders. In the case involving El Dorado, the Supremes didn't interpret the trial court's judgment as applying the law to a planned meeting of any two members of the city council, as long as it didn't involve the purpose of discussing public business.

So I'm still pondering why the legally settled standards seem so darn difficult for Fort Smith to understand.

When the Supreme Court does rule on Wade's case, hopefully Fort Smith's government will open its eyes and stop wasting money. Sunshine is a good and necessary thing not to be disregarded at the whim of a city's governing body, said McCutchen.

Amplifying his point about the proliferation of Freedom of Information Act violations in Arkansas cities, McCutchen also has sued the city of Ozark, in which he alleges violations of open meeting provisions of the act. It's apparent that holding meetings by secret emails and text messages is reaching epidemic proportions, he told me, adding that it's now occurred with the Fort Smith School Board, Fort Smith, Mansfield and now Ozark.

Perhaps it's past time to implant some sharper incisors in our Freedom of Information Act and for local governments across Arkansas to realize the act is is nothing to ignore without serious consequences.

Meanwhile, I'll continue to applaud all champions of transparent and open government such as McCutchen and hope his fellow counselors statewide will join such a worthwhile cause.


Mike Masterson is a longtime Arkansas journalist. Email him at

Editorial on 07/22/2018

Print Headline: What law?


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