Cherokee Nation Businesses joined an anti-casino group in asking that a circuit judge hold an emergency hearing and grant a restraining order to keep the state Racing Commission from taking action today regarding a license for a proposed casino in Pope County.
The Racing Commission is to meet at 10:30 a.m. today at the attorney general's office in Little Rock. The meeting room is closed to the public and media, but the meeting can be accessed by calling (888) 808-6929 and using the access code 9564505#.
The agenda items include a reconsideration of the commission's April 15 unanimous vote to accept the Cherokees' application for "good cause," as well as a discussion of the points to be used in scoring the applications submitted by the Cherokees and Gulfside Casino Partnership.
John Tull, an attorney and Freedom of Information Act expert who represents the Arkansas Press Association, said in an April 29 letter to the commission that the April 15 vote should be voided because, he alleged, the group violated the Freedom of Information Act by reaching a decision in private before a public meeting.
Tull wrote that the commission votes followed "very little public discussion."
"When the Commission met April 15 via conference call, there were issues with the audio which could have potentially prohibited Commissioners from asking questions or discussing the request," said Scott Hardin, spokesman for the state Department of Finance and Administration, in an email. "In order to avoid any confusion, the Commission will again consider the Cherokee request for good cause. This will ensure Commissioners may clearly communicate and discuss the request."
But in a letter Wednesday, Cherokee attorney Scott Richardson said the Racing Commission "does not have the authority to now rescind or change that decision."
"This Commission finds itself in the greatest amount of peril when it acts outside of what is authorized by its Rules," Richardson said. "No Rule allows for reconsideration of a properly conducted vote. I am aware that an allegation of FOIA violations has been made. I am aware of no facts to support that, but the law is clear on the matter. Even if some violation took place prior to the meeting, the cure is and was an open meeting with a vote. That took place three times in that meeting with no complaints about audio or participation other that that which has become ubiquitous in every virtual meeting required by COVID."
Jerry Malone, attorney for the anti-casino group Citizens for a Better Pope County, said in Wednesday's filing in the court of Pulaski County Circuit Judge Wendell Griffen that a temporary restraining order was necessary to prevent "irreparable harm or injury to the Plaintiffs."
Another attorney for the Cherokees, Dustin McDaniel, in a letter to Griffen, asked that the injunctive relief requested by Malone be granted, saying that the Racing Commission would be "in violation of their own Rules, causing prejudice to the only parties with standing to suffer harm."
Both items on the agenda "sound simple and harmless and are undoubtedly well intentioned, but neither of these 'cures' are permissible under their rules and will only cause more chaos in this administrative record," McDaniel said.
Tull said Wednesday that, while he respects Richardson and McDaniel, he strongly disagrees with them.
"My concern is with the Racing Commission or any public entity violating the Arkansas Freedom of Information Act. A violation has occurred and because of the violation the remedy under Arkansas case law is the initial vote is to be nullified; then, a complete discussion should occur and only after that public discussion should another vote be taken," Tull said. "The citizens of Arkansas are entitled to see and hear a public discussion and vote. You cannot violate the law and simply act like it is OK because it is too much trouble to follow the law."
Richardson said in the letter that a recording of the meeting clearly shows that more than 20 minutes were spent ensuring that every commissioner "was heard and could hear."
"Also, various commissioners also said that they had access to one another via text or other means," Richardson said.
Texting or telephone conversations between members of a governing board outside of a public meeting are generally prohibited under the state Freedom of Information Act.
Arkansas Attorney General Leslie Rutledge, in her publication, "The Freedom of Information Act Made Simple," warns, "no polling or secret telephone conferences."
Malone, in a filing in Pulaski County Circuit Court last week, said the commission's initial application window and a since-abandoned second window should be voided because the commission failed to follow one of its rules and assign a points value to each merit criterion in the scoring of an application and did not list the points in any of its notices soliciting applications for either Pope County or Jefferson County casino licenses.
In a separate letter to the commission, McDaniel said the error of omitting the scoring criteria was committed more than a year ago. During that time, he pointed out, no casino applicant has raised an objection.
The only two entities that could be harmed by the error, McDaniel said, are the Cherokees and Gulfside Casino Partnership.
The Racing Commission earlier this month agreed to turn the Cherokee's and Gulfside's applications over to a contracted evaluator to recommend which operator should be awarded the Pope County casino license. The evaluator will consider each applicant's experience with casino gambling; timeline for opening the casino; proof of financial stability and access to financial resources; and summary of the proposed casino.
"Cherokee Nation Businesses'] position is that the four categories should be given equal weight and analyzed as set forth above, and no attempt to modify or cure the error should be made otherwise," McDaniel said. "If the commission will do so with regard to agenda item 2, and if Gulfside agrees to do the same, CNB will waive any claim or challenge related to the failure to publish the scoring rubric. This action is in the best interest of the state and all interested parties."
Gulfside representatives declined to comment when contacted.
Constitutional Amendment 100, which was passed by voters in November 2018, allows a new casino each in Pope and Jefferson counties, and allowed the expansion of gambling at the racetracks in Hot Springs and West Memphis. The amendment required endorsements of local officials for the new casinos.
On March 25, Pulaski County Circuit Judge Tim Fox ruled unconstitutional a commission rule requiring that the endorsements be from officials in office at the time of the application.
Gulfside's initial application in 2019, along with those of the Cherokees and three other companies, were rejected by the commission. Gulfside had endorsements of local officials before they left office.
After agreeing to fund a $38.8 million "economic development agreement," the Cherokees received the endorsements of current public officials, including the Pope County Quorum Court, several county mayors and Ben Cross, the county judge of Pope County.
The Cherokees say their application should still be considered based on the "good cause" rule.
The rule states: "Applications for a casino license will be accepted by the Commission for a period of thirty (30) days, beginning on the date established by the Commission and published as a legal notice by the Commission. No Applications will be accepted after the thirty (30) day period, except for good cause shown."
Metro on 05/07/2020