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RUSSELLVILLE -- On its second try in a week, the Pope County Quorum Court on Monday succeeded in repealing a 2018 initiated ordinance that requires county officials to get permission from voters before they endorse a candidate for a casino license.

The decision came just before a Pope County circuit judge is to hear motions at 10 a.m. today in a lawsuit brought by the anti-casino group Citizens for a Better Pope County. The group brought the suit because the Quorum Court in August, without voter input, endorsed Cherokee Nation Businesses, one of five applicants, as its choice for a casino license.

Ben Cross, county judge of Pope County, said repealing the ordinance would bring the lawsuit to a halt and save the cash-strapped county thousands of dollars in legal fees.

When the final vote was called, nine of the 13 justices of the peace -- Reuben Brown, Ernie Enchelmayer, James Kusturin, Phillip Haney, Jackie Heflin, Caleb Moore, Doug Skelton, Tim Whittenburg and Ray Black -- voted to repeal the ordinance. Four justices of the peace -- Joseph Pearson, Bill Sparks, Jamie Jackson and Blake Tarpley -- voted to let it remain.

Larry Walker, a Russellville attorney and leader in Citizens for a Better Pope County, provided the Arkansas Democrat-Gazette with an email Friday from Cross to Quorum Court members, intended to "solicit input" on whether to once again put the issue of repealing the ordinance before the full body.

Last week, the Quorum Court failed to get the two-thirds vote needed just to suspend the rules and allow the body to consider the resolution for repeal.

[RELATED: See complete Democrat-Gazette coverage of casinos in Arkansas at arkansasonline.com/casinos]

Walker said Cross' email is considered to be a poll of Quorum Court members to get a consensus, which is against the state Freedom of Information Act.

In Arkansas Attorney General Opinion No. 2000-111, then-Attorney General Mark Pryor said it's illegal to poll individual members of a governing body outside a public meeting in order to reach a consensus or make a decision.

In one of the emails, provided late Monday by Cross to the Democrat-Gazette in answer to a records request, Cross asked the justices of the peace how to proceed.

"Do you want to keep addressing it on each agenda? Do you want to completely disregard the issue and let litigation take its course?" Cross asked. "Those are about the only two possible alternatives I can see at this point, unless you have some other direction the county should take."

The email said that at least $30,000 would need to be appropriated in November to cover costs of continuing litigation. More than $17,000 has already been spent on the lawsuit, Cross' email said.

"Only $3,496.64 remains in the special legal fund," Cross wrote. "My question is, do want to take it out of County General? Or the Surplus Investment Fund? That's really the only two options at this point."

Cross wrote that there was no use in having the same votes on the ordinance month after month.

"If the decision is to ignore the advice of counsel, then I suggest it no longer be an agenda item, but please keep in consideration my comments about having something 'tangible' to show for our efforts," Cross said in the email. "For example, the Sheriff's Office is currently in a desperate situation with their officers needing, at a minimum, new hand held radios. The current ones are obsolete, and cannot even be sent in for repair anymore."

In another email, Cross forwarded the Quorum Court members a letter from Fort Smith attorney Colby Roe, who represents the county in the suit.

"It is my opinion that the Quorum Court should immediately repeal the Ordinance," Roe wrote. "Repeal of the Ordinance will seriously undercut the claims Plaintiffs have asserted, which in turn will save the County significant sums in legal fees." He estimated the fees could top $70,000.

Pope County Ordinance 2018-0-42 was approved by about 70% of county voters in November -- the same election in which voters statewide approved Amendment 100, which allows new casinos in Pope and Jefferson counties as well as expanded casinos for Oaklawn Racing Casino Resort in Hot Springs and Southland Casino Racing in West Memphis. The amendment requires local endorsement of casino applicants in Pope and Jefferson counties.

Two lawsuits by Citizens for a Better Pope County -- one against the county and the other against the state Racing Commission -- argue that an Aug. 13 decision by the Pope County Quorum Court endorsing Cherokee Nation Businesses contradicts the ordinance's requirements because no election was held.

(The lawsuit against the Racing Commission is in Pulaski County Circuit Court.)

If the justices of the peace had chosen not to repeal the ordinance, then the county could have been hit with an illegal exaction suit if the Quorum Court called an election to get voter input, Roe said.

Roe's letter also said repealing the ordinance curbs any investigation into whether county officials violated the Freedom of Information Act.

Hans Stiritz, on behalf of the anti-casino group Concerned Citizens of Pope County, filed a complaint earlier this year with the prosecuting attorney's office alleging that county officials discussed casinos at meetings that violated the Freedom of Information Act.

Little Rock lawyer Jason Barrett was appointed special prosecutor by the Office of the Prosecutor Coordinator to determine if charges will be filed.

"It will moot the FOIA claim of the Plaintiffs and maintain the legal question regarding the validity of the Ordinance," Roe said in the letter. "The Plaintiffs' FOIA claim is a fact-based claim, meaning the parties will likely engage in significant discovery (depositions, interrogatories, etc.) to explore underlying facts either supporting or disputing the claim. If the County rescinds the Resolution, such action will moot the FOIA claim and render such discovery unnecessary."

The Pope County Quorum Court meeting room was filled to its 90-person capacity Monday night, with at least 100 more in the lobby and out the door.

About 30 people spoke, with the majority asking for repeal. Others cautioned that by rescinding the ordinance, the justices of the peace would disregard the voice of more than 12,000 voters.

David Ivey urged leaving the ordinance intact and letting the courts decide the issue.

"It's destroying us from within," he said. "I'm afraid there will be relationships that will never repaired."

Steve Zimmer, a retired faculty member at Arkansas Tech University, said that in his 20 years in Russellville, he has seen the community's population decline.

"The ordinance, as written, is unconstitutional," Zimmer said. "Repeal this ordinance to provide for the opportunity for more people coming into Russellville, into Pope County."

A Section on 10/29/2019

Print Headline: Pope County JPs repeal ordinance on casino vote

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