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MIKE MASTERSON: A costly outcome

by Mike Masterson | September 24, 2019 at 2:01 a.m.

No selfless deed undertaken in the public interest can escape punishment in Arkansas, at least where our Supreme Court is concerned.

I'm speaking of the expensive predicament Fort Smith resident Bruce Wade faces after filing a Freedom of Information Act suit against the city of Fort Smith in 2018 based largely on the requirements of our state's transparency law.

In Wade's mind, the behavior of the Fort Smith Board of Directors violated the FOIA in carrying on secretive email discussions and distributing those communications to members as two directors were pushing colleagues to abolish the city's Civil Service Commission.

Established legal precedent made it clear the directors could not privately communicate (by holding what amounted to a secret meeting) without advance notice to the media on any matter reasonably foreseeable to come before the board. The law specifically addresses, "all meetings formal or informal, special or regular of the governing bodies of all municipalities ... shall be public."

Fort Smith attorney McCutchen, representing Wade, said one director in a particular exchange obviously realized his impropriety in sending the email, saying "as always, please do not forward this email." The matter under discussion actually did come up at the next board meeting where it became fairly clear to many that an FOIA violation had occurred, he added.

McCutchen offered the city the chance to settle Wade's suit for no costs or attorney's fees. Long a staunch defender of the FOIA, the attorney asked only for the elected officials and the city to admit wrongdoing and agree not to do it again.

Sounds fair and simple enough to me. Yet in subsequent emails sent to the entire board, three directors expressed their vote to reject McCutchen's offer. That exchange created another matter that legally could only be addressed in a public meeting with media notification.

One director went so far as to tell others to "close your eyes," said McCutchen, while another told fellow directors to "stop reading at this point and delete this email if you do not want to see my opinion."

In other words, valued readers, public business was discussed in both less-than-transparent email exchanges. In the second one, three of seven directors voted against the settlement proposal. It was evident to Wade that a second FOIA violation had occurred, so he amended his complaint, McCutchen said. What began as one mess just kept getting messier.

Sebastian County Circuit Judge J. Michael Fitzhugh agreed with Wade and entered summary judgment against Fort Smith. The judge found the facts of the matter were clear and directors had indeed violated the FOIA.

Now, on appeal, enters our Arkansas Supreme Court to muddy the waters. After a decision taking months, a majority of Supremes found the secret emails and votes on matters which did publicly come to be determined by the city's Board of Directors were merely "informational" in nature and therefore not in violation of FOIA.

How can directors voting on a city issues behind the scenes be purely "informational" when the FOIA is clearly applicable to their actions as public servants? This stunning decision drew harsh (and justifiable) criticism from Supreme Court Justice Josephine Linker Hart: "Perhaps unwittingly, the majority has imposed a requirement that, to constitute a meeting, an email must: (1) directly solicit a response; (2) render a decision; and (3) involve more than three-sevenths of a city's board of directors. Worse still, these determinations will almost certainly require a lawsuit to resolve." Justice Robin Wynne joined Hart in dissent.

With a single misguided decision, our Supreme Court turned what was long considered among the nation's strongest FOIAs into one of the weakest. The Wade decision basically allows for secret "informational" meetings by governing bodies, something that has been prohibited since Gov. Winthrop Rockefeller proudly ushered passage of our state's sunshine law.

Now it's likely to require decades to determine exactly what the Supreme Court intended unless the Legislature steps in to amend the law and set this straight, which it certainly should.

I began by telling you no conscientious effort by a citizen such as Wade can escape punishment at the hands of our Supremes, who added insult to injury by tacking on over $2,600 case-related expenses against Wade.

This, McCutchen said, despite the Legislature's adopting a statute that prohibits assessing such expenses unless the case is frivolous or brought as a delaying tactic. Does this case in the public interest sound frivolous to you since the Sebastian County Circuit Court granted summary judgment in Wade's favor? Moreover, no one claimed his suit was brought for purpose of delaying anything.

The good people of Arkansas, who must remain informed of actions and decisions by those they elect to lead them, deserve so much better than an injudicious decision that allows and encourages just the opposite.


Mike Masterson is a longtime Arkansas journalist, was editor of three Arkansas dailies and headed the master's journalism program at Ohio State University. Email him at

Editorial on 09/24/2019

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