A county judge and several Quorum Court members violated the state Freedom of Information Act multiple times when selecting an applicant for a Pope County casino license, but it's too late to file criminal charges, a special prosecutor said in a three-page letter obtained Tuesday by the Arkansas Democrat-Gazette.
Jason Barrett, who was appointed by the state Office of the Prosecutor Coordinator in Little Rock, said in the letter to Fifth Judicial Circuit Judge Bill Pearson of Clarksville that "after weeks of interviews and collecting evidence," he concluded that Ben Cross, county judge of Pope County, and several Quorum Court members held secret meetings leading up to the decision to endorse Cherokee Nation Businesses for a casino license.
But Barrett said that pressing criminal charges is not "prudent or possible at this time."
"This fact has been made more difficult by the fact that the Circuit Court Judge in this case has already heard the allegations in a civil case and has determined that there was not enough evidence to meet the civil burden of proof regarding a violation," Barrett said in the letter. "The State would have a greater burden of proof should it now go forward in this case, and the same judge would be called on to ultimately decide the issue."
But that does not mean the actions of Cross and the Quorum Court are "approved or condoned by this review," Barrett said in the letter.
"The FOIA is in place to allow the public to be aware of the process that is used by those that govern," he said. "Here, that purpose was thwarted by back door meetings and deals and, at least a portion of the citizens of Pope County, are now rightfully concerned about the process. It may very well be that the quorum court and county judge have reached the best decision for Pope County, but due to their system of governing in secret, some people will always question their motives and this result."
In a statement Tuesday, Cross said he respectfully disagrees with many of Barrett's "conclusions, assumptions and innuendo."
"I remain confident in our position that there was absolutely no intent to violate the Arkansas FOIA rules, and wholeheartedly agree with Mr. Barrett in his statement, 'it is my belief that the further pursuit of the FOIA Violation would not meet the goals of justice which I have been tasked to serve,'" Cross said.
According to Arkansas Code Annotated 25-19-106, meetings of a public governing body are open to the public. Also, the public must be given at least two hours' notice of special meetings.
Hans Stiritz, a Pope County resident, filed a Freedom of Information Act complaint with Pope County Prosecuting Attorney Jeff Phillips on Aug. 12 on behalf of the anti-casino group Concerned Citizens of Pope County. The complaint contained affidavits from a Pope County justice of the peace and seven other residents with allegations that Cross and members of the Quorum Court held several private meetings.
"While we're disappointed that the prosecutor has decided not to pursue criminal charges, we're gratified that he nonetheless concluded that FOIA violations did occur," Stiritz said. "Further, his conclusions that 'back door meetings and deals' took place should call into question the entire process that led to the Quorum Court's endorsement of the Cherokee proposal and the repeal of the citizens' county ordinance. Pope County citizens deserve honest, open, and law-abiding government, not behind-the-scenes deal-making and hair-splitting justifications for keeping the casino debate out of the public eye." The ordinance would have required county officials to receive voter approval before backing a casino.
The case was assigned to Barrett after Phillips recused.
In October, Pearson ruled in a civil suit filed against Cross and the Quorum Court members that the Freedom of Information Act was not violated and that members of a governing body can meet privately as long as they are not coming to a decision on a public issue.
Barrett did not mention specific Quorum Court members by name, but he said the investigation -- which was completed with the assistance of the Attorney General's Public Corruption Unit -- resulted in three verifiable illegal meetings and a fourth in which "the evidence is not as clear."
Those meetings were:
• May 6, 2019: Cross and three justices of the peace met with Russellville School District Superintendent Mark Gotcher to discuss the possibility of a casino and the financial benefit the schools would receive.
In a memo from Gotcher -- obtained by the Democrat-Gazette in August -- detailing the meeting, Gotcher named Pope County Justices of the Peace Doug Skelton, Caleb Moore and Ernie Enchelmayer as the three public officials in Cross' office.
Neither Skelton, Moore or Enchelmayer returned messages seeking comment as of late Tuesday.
• May 6, 2019: Barrett said the evidence shows that a meeting was to be held without the required public notice at Shiloh Park in Russellville, but it was moved to the county courthouse after Justice of the Peace Joseph Pearson insisted on notifying the press.
In an affidavit, Russellville resident Roger Fryer identified Cross as well as justices of the peace -- Enchelmayer, Pearson, Moore, Reuben Brown, Ray Black, Tim Whittenburg, Jackie Heflin and Skelton -- as attending the courthouse meeting.
• Aug. 1, 2019: After a scheduled meeting of the Quorum Court, six justices of the peace met for dinner at the Old Bank Bar and Grill in Russellville. Barrett said in the letter that there is video but no audio of the gathering.
Barrett cited several attorney general opinions that say a social gathering would violate the Freedom of Information Act if city business was discussed.
"It is somewhat beyond belief that the conversation did not continue regarding the business of the governing body, but there is no direct proof of that being the case at this meeting," Barrett said.
• Aug. 13, 2019: William Wetzel, a local real estate agent for several casino vendors, treated some justices of the peace to about $2,000 in "food and beverages" at an undisclosed location.
Barrett said it was not clear who attended the meeting.
"Absent any additional proof of who attended this dinner or what was discussed, there is no action that can be taken," Barrett said in the letter.
The investigation also showed that there were "numerous accounts" of some justices of the peace being left out of the discussions about the casino selection.
"This should make everyone question if the best decision has been made for Pope County," Barrett said. "Additionally, it seems apparent from this investigation that not all of the potential casino vendors were considered to the same extent. Whether this means that the result would have changed from the selection that was ultimately made remains unknown. What can be said is that the process has multiple problems as it was conducted."
Chuck Garrett, chief executive officer for Cherokee Nation Businesses, said in a statement that the vetting process put in place by the Pope County Quorum Court was "thorough and transparent."
"We were honored to participate alongside all other potential operators and to ultimately receive the sole resolution of support from the Quorum Court," Garrett said. "We continue our efforts in pursuit of the license from the Arkansas State Racing Commission and bringing positive economic growth and jobs to the River Valley."
Approved by voters in November 2018, constitutional Amendment 100 allows a new casino in both Pope and Jefferson counties, and it allows the expansion of gambling at racetracks in Hot Springs and West Memphis.
The Pope County Quorum Court on Aug. 13 endorsed Cherokee Nation Businesses for the license there. That came after the state Racing Commission rejected all five applications -- including from Cherokee Nation Businesses -- that were submitted in May because none contained endorsements from local officials who were in office at the time.
The amendment requires the new casinos to have endorsements of local officials.
While Amendment 100 does not state when the endorsements have to be dated or submitted, the Racing Commission last year added a rule that the endorsements can come only from officials in office at the time the application is submitted. The Legislature also passed Act 371, which became effective in March and requires the same thing.
The Racing Commission opened a second window for applications after Cherokee Nation Businesses was endorsed by county officials.
That window has since been "abandoned" by the Racing Commission after a temporary restraining order was issued recently by Pulaski County Circuit Judge Wendell Griffen, barring the commission from issuing a license until a lawsuit over the process is decided.
Griffen, however, also said that his temporary restraining order doesn't bar the Racing Commission from taking applications based on "good cause shown," as cited in its rules.
In another court case, Gulfside Casino Partnership of Mississippi -- one of the five original applicants -- filed suit in August, saying its application from May met the constitutional requirements because, unlike the others, it included letters of endorsement from local elected officials, though the letters were issued right before the officials left office in December 2018.
The Gulfside case is scheduled for a March 30 hearing before Pulaski County Circuit Judge Tim Fox.
Metro on 01/22/2020
This story was originally published at 7 a.m.