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OPINION | MIKE MASTERSON: Fighting for FOIA

by Mike Masterson | December 14, 2021 at 2:59 a.m.


Valued readers know I regularly devote considerable space to promoting the free flow of information and lawsuits that arise when institutions and agencies are accused of violating Arkansas' transparency law.

Call me a dinosaur(I've heard worse). but without a vigilant press and attorneys and prosecutors willing to hold Freedom of Information Act violators accountable, these infractions will continue and grow.

School boards, city councils and agencies who spend tax dollars must do the public's business in a fully transparent manner. After all, it is the duty of elected and appointed "public servants" to be accountable and responsible in office.

That said, prominent FOIA attorney Joey McCutchen of Fort Smith and fellow attorneys Chip Sexton and Stephen Napurano are taking on the Fort Smith City Council for allegedly violating the FOIA over a unannounced meeting.

The suit claims an important decision was reached via telephone, rather than in an announced public forum as FOIA requires.

The backstory described in the suit contends an illegal meeting by the Fort Smith Board of Directors was held to decide whether to remove one proposal from the Board's agenda and retain another. Those proposals related to how to best distribute tax revenues collected by the city's 0.75 percent sales and use tax.

"One proposal labeled (4B-1) sought to give a portion of those tax monies to the parks department. The other called (4A-1) omitted the parks department, instead using those funds to support a city consent decree," said attorney Napurano.

He said City Administrator Carl Geffken sent the Board of Directors the two proposals, placing both on the agenda. "Before doing that, Geffken reached out to individual members indicating there were different opinions over how to allocate the money.

"He then suggested he did not want the decision to be 'bandied about,' suggesting directors consider three options: First, to place both proposals on the agenda, secondly to place one of the proposals on the agenda then amend it, and finally, table both options for further discussion."

In response, City Director Lavon Morton contacted City Clerk Sherri Gard and requested that the proposal to supplement the parks department be removed from the agenda altogether.

"Gard then contacted and polled all of the Board of Directors by phone. The majority of the board voted in favor of removing (4B-1) from the agenda while retaining (4A-1).

"This constitutes a secret meeting and an illegal vote," said Napurano.

The board then held a regular meeting on Nov. 16 and approved (4A-1) after several amendments. Director Kevin Settle remained in favor of (4B-1), previously removed by the board, and sought to still dedicate a portion of the tax money to the parks department.

"However, Director Settle realized such a proposal was fruitless since the majority of his fellow board members voted against it. And that's why Settle publicly stated: 'I know that proposal was pulled, and I'm not going to try to put it back in or amend it because I know the board doesn't wish that.'"

During the meeting, Director Andre Good also said not allocating money to the parks department was "a hard decision."

"This confirms that the board's vote with Gard was not merely a vote to remove an item from the agenda, but was nothing more than a disguised vote on the disposition of those two options," said Napurano.

The city has an ordinance that allows the Board of Directors to remove items from the agenda. "But that's not what the board did in this instance," the attorney said. The board "instead illegally voted in a secret meeting on which proposal to support and which to reject. The winning proposal was left on the agenda. This is political cherry-picking and is no different from a Board of Directors voting for or against a proposal by secret ballot."

Napurano emphasized that the Arkansas Supreme Court has held that decision-making by private polling without the process being open to the public violates the open-meetings provision of FOIA.

"It's also well-settled law that a city employee like Sherry Gard who polled the directors in private by phone cannot be used as a straw man to get around the open-meeting requirements of FOIA."

Meanwhile, the McCutchen firm is involved in yet another FOIA lawsuit against the Jonesboro Public Library for violating the open meetings provision.

University of Arkansas at Little Rock law professor Robert Steinbuch, also a staunch defender of transparency and our FOIA, likely will join both suits. "It's sad," he said, "that public officials continue to try to operate outside the purview of the great citizens of this state.

"In Fort Smith they're trying to do so as part of an effort to raise taxes for a generation of Arkansans. I applaud attorneys like McCutchen and Sexton, and jurists like District Judge Gunner DeLay, who are committed to transparency and democracy.

"Shame on those bureaucrats who continue to believe that the people of Arkansas work for them, not the other way around," Steinbuch added.


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 mmasterson@arkansasonline.com.


Print Headline: Fighting for FOIA

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