A Pope County Quorum Court resolution scolding the county judge for his part in the contentious casino issue there was overwhelmingly adopted in a special meeting Monday, but voided Tuesday morning because of procedural errors.
District 12 Justice Joseph Pearson, who sponsored the piece, said the resolution was not read by title.
"We'll resubmit it at the next regular court meeting," Pearson said.
The Quorum Court also amended the resolution to eliminate any mention of Ben Cross, the county judge of Pope County, creating an impropriety and instead used the phrase "appearance of impropriety."
The justices of the peace voted 9-3 to adopt the resolution. Justices Pearson, Allan George, David Ivy, Jason Muncy, Roy Reaves, Lane Scott, Doug Skelton, Jennifer Sloan and Bill Sparks voted for, while Justices Phillip Haney, Jackie Heflin and Tim Whittenburg voted against. Justice Jamie Jackson was absent.
The resolution came after Cross filed an amicus curiae brief in support of Cherokee Nation Businesses in a case before the Arkansas Supreme Court.
Cherokee Nation Businesses is fighting for the Pope County casino license against Mississippi casino operator Gulfside Casino Partnership, which was awarded the license last year by the Arkansas Racing Commission.
"In recognition of the fact this is the fifth resolution against casino related issues brought by the court in ten months, I totally understand and respect there are still those who adamantly oppose anything to do with the word 'casino,'" Cross said in a news release. "However, as the office of County Judge is statutorily charged with the fiduciary responsibility of all county financial issues by state law, it is only prudent to support what is financially in the best interest of the county."
Cross, who campaigned on the promise that he would not support a casino in the county unless it was the will of voters, later sided with Cherokee Nation Businesses and wrote a letter of support after negotiating a $38.8 million economic development agreement with the business.
THE BRIEF
Constitutional Amendment 100 authorized the expansion of gambling operations at racetracks in Hot Springs and West Memphis into full-fledged casinos. It also allowed the state Racing Commission to issue one casino license each in Jefferson and Pope counties.
Amendment 100 requires local endorsements, but it does not stipulate when the endorsements have to be dated or submitted.
Gulfside filed suit after its license application was initially denied by the Racing Commission, which rejected Gulfside because its letter of support was signed by then-County Judge Jim Ed Gibson just days before his term expired on Dec. 31, 2018.
A Racing Commission rule and a state law required that the endorsements come from local officials in office at the time of application for a license. But that rule and law were deemed unconstitutional and struck down twice by Pulaski County Circuit Judge Tim Fox.
The Racing Commission last year awarded the license to Gulfside. Cherokee Nation appealed Fox's decision to the state Supreme Court.
Cross, argued in the brief -- which was prepared by former County Attorney Clay McCall of the McCall law firm -- that the ruling by Fox takes away the local power granted to Pope County by Amendment 100.
The county's brief also was supported by the county judges of Miller, Lincoln, Crittenden, Logan and Johnson counties.
"The amicus brief itself sets to ask the Supreme Court a matter of constitutional executive power, not the question of pro or anti casino, which is why so many other county judges across Arkansas joined in support of this question of constitutional authority," Cross said in a statement.
Cherokee Nation Businesses "made a monetary contribution" to pay for the attorney's preparation of the brief. Neither the Cherokees nor Cross would say the amount of that contribution. Cross said previously that McCall works exclusively for his office and was paid $1 by the county to prepare the brief.
Sloan, who represents District 2 on the Quorum Court, said at Monday's meeting she could not reconcile in her mind the fact that a casino applicant helped pay for a legal brief in the county's name.
"You can take everything else out of it, that's my objection," Sloan said. "I don't care about one other thing, but the fact that CNB made a contribution to fund the brief is not all right. If Judge Cross wanted to do it, he should've paid for it out of his legal fund."
Cross sat at the head of the Quorum Court table Monday, listened to two citizen comments, then recused himself from the rest of the meeting.
TEMPORARY CASINO
Monday morning, prior to the Quorum Court meeting, Cross distributed a four-page letter, complete with photos of Gulfside's proposed $254 million project, to the justices of the peace.
The last-minute actions of Gibson, the former county judge, are the only reason the county is "in the position we are in now," Cross said.
"Because of Jim Ed Gibson's letter for Gulfside, the years 2019, 2020, and 2021 have been chaotic," Cross wrote in the letter. "I spent my career in law enforcement trying to protect citizens, and I cannot sit on my hands and just watch this impact Pope County for generations."
Cross said Gulfside "should be out of this process immediately" and presented photos of Gulfside's plans approved by the Russellville Planning Commission for a proposed temporary gambling annex.
Cross also included a picture of Gulfside's artist rendering of the full proposed project.
"This is what they actually want to build," Cross said of the annex.
"All that means is that they want to be allowed to build it and operate it and everyone just trust them that they will keep all of their promises to the State, the County and the public at some point later," Cross wrote.
A temporary gaming facility while the main construction is ongoing is not something new to Arkansas.
Saracen Development opened a small temporary casino in 2019 in Pine Bluff shortly after being awarded the license while the main project was being built. Today, the $240 million project located near The Pines mall is open and operating.
Carlton Saffa, Saracen's chief market officer, said the 15,000-square-foot annex served several purposes, including allowing for an immediate revenue stream.
"CDI constructed the annex in 100 days, and we were operational four months after our June, 2019 licensure," Saffa said. "Second, it provided an opportunity for Saracen to create jobs and acclimate employees without prior casino experience to the specifics of gaming. Learning in a smaller space is easier, and a supervisor is never far away. Finally, the annex meant much needed revenue for Pine Bluff and Jefferson County."
Saracen worked closely from the beginning with the Racing Commission with its plans for the annex.
"The annex was specifically identified in Saracen's application, and in addition it was discussed in testimony before the commission in the licensure hearing," Saffa said. "The annex was fully disclosed from the beginning and was no surprise to local officials or the commission."
The full Saracen project is not complete, specifically the hotel. The annex was completed within 100 days, but the covid-19 pandemic caused supply chain disruptions, which led to delays, Saffa said.
"Many of these delays still persist. Building materials are long-delayed and are significantly more expensive than they were 18 months ago," Saffa said. "And with the October 2020 addition of experienced gaming executives Matt Harkness, general manager, and Jim Burns, chief financial officer, to the organization, the specifics of the hotel are changing as we refine things like suite counts, a lobby restaurant, and event center layout."
CASINO PROMISES
The majority of the applications from Gulfside and the Cherokees were redacted by the Racing Commission when released in response to a Freedom of Information Act request from the Arkansas Democrat-Gazette. In the unredacted part, there was no mention in either application of a temporary gambling facility.
Through the years, both contenders have lodged accusations that the other plans to build only a small gambling facility and not fulfill the multimillion-dollar construction projects promised.
When asked Tuesday whether Cherokee Nation Businesses planned to open or build a temporary gaming facility while the main project was being built, Cherokee attorney Dustin McDaniel said in an email that Cherokee Nation Businesses "will honor the contractual obligations in the EDA with Pope County and its promise to the State to build the entire Legends Resort & Casino project in one phase and be fully operational within 18 months of obtaining a legally clear license."
When pushed for a more direct answer on whether a temporary gaming site would be built, McDaniel responded with "It's not in our plans submitted to the state or in the EDA, so no."
McDaniel added that no temporary facilities were built for any of Cherokee Nation Business's resorts on the same scale as the proposed Legends Resort & Casino in Pope County.
"There have been a few temporaries over the years at some of the small casinos on tribal land that didn't end up being much larger than the temporary," McDaniel said. "For this project, the plan has always been to build full scale from the ground up."
In a July 30, 2020, meeting before the Racing Commission, Gulfside co-owner Terry Green said -- in response to an accusation from McDaniel -- that if Gulfside didn't fulfill the project represented in its application, the commission could revoke its license.
When asked Tuesday if they intended to only open the temporary site and not complete the main project, Gulfside attorney Casey Castleberry said Gulfside was the first to envision a state-of-the-cart casino resort for Pope County.
"Since the Arkansas Racing Commission awarded us the license in July 2020, we have remained steadfast in our commitment to delivering the $254 million first-class resort described in our application, irrespective of whether we build a temporary one," Castleberry said.
"We are eager for the Supreme Court's ruling, which remains the only delay to construction."