Let's say you are certain you can prove your school board broke the law when it failed to publicly vote on extending the contract and compensation for its superintendent.
You send your local prosecutor a signed affidavit citing your claim and asking him to criminally pursue any Freedom of Information Act violation. Instead, the prosecutor writes a district judge to tell the judge your complaint is wrong while implying you possibly committed a crime.
However, you've done your research and remain certain. You contact an attorney. What else can you do other than go away?
That's where Jimmie Cavin of Cabot finds himself today with Lonoke County Prosecutor Chuck Graham and Cavin's attorney Joey McCutchen of Fort Smith who, with law partners Chip Sexton and Steven Napurano, specializes in FOIA cases.
The flap began when Cavin sent his letter and affidavit to Graham alleging the Cabot School Board violated the state's FOIA by failing to vote in public on a resolution that renewed the contract of Tony Thurman as superintendent of that school district.
Graham's response was to send the following letter on Oct. 3 to Lonoke District Court Judge Teresa Smith with a copy to Cavin and the board:
"Our office has reviewed affidavits and attachments for warrants of arrest sworn to by Jimmie Cavin for all members of the Cabot School Board in the above referenced case and conclude there was no violation of the law; therefore, no criminal charges can be filed in this matter. In the affidavits Mr. Cavin alleges members of the Cabot School Board violated Arkansas Code Annotated 6-3-620 and 25 -19-106 because they 'did not vote in public on resolution' pertaining to Superintendent Dr. Tony Thurman's employment contract. On the dates in question, Feb 15, 2022, and March 15, 2022, the Cabot School Board complied with the law by voting in public on the resolution involving the employment contract of Dr. Thurman.
"Additionally, the minutes of the March 15, 2022, Board of Education Cabot School District reference the in-public vote on the resolution, specifically stating 'the contract of Superintendent Dr. Tony Thurman to be extended through June 30, 2025.'
"Furthermore, Mr. Cavin should be aware of [the law] which addresses an affiant who seeks prosecution of an individual for frivolous, groundless, or malicious reasons. A conviction under this statute is an A Misdemeanor and is punishable by a $2,500 fine and up to one year in jail."
Cavin interpreted that paragraph as a personal threat for daring to raise the issue, so he retained bulldog attorney McCutchen of Fort Smith, who for two weeks has been asking Graham for proof of the claim in his letter to the judge that the board publicly voted since McCutchen's found no indication they did in either the minutes or videos. Thus far, McCutchen said he's received no proof from Graham.
McCutchen told me the March 15 minutes do indeed reference the contract extension. However, this reference "is in absolutely no way" a public vote on the Feb. 15 resolution.
"Secondly, a reference to the contract is apples and oranges," McCutchen said. "We have the Feb. 15 resolution they passed in the executive committee meeting. We have asked repeatedly regarding the public vote on the resolution. The contract has nothing to do with our complaint."
The FOIA law, he noted, says, "No resolution ... considered or arrived at in executive session will be legal unless, following the executive session, the public body reconvenes in public session and presents and votes on the resolution."
Cavin said he was "shocked" by Graham's reaction to his request: "That he apparently had created a letter and sent it to the judge three days before he informed me he was not prosecuting. That he stated in the letter the board voted on the resolution in public on Feb. 15 and March 15. ...
"My attorney ... has reached out to [Graham] several times asking for the records of the public votes he claims the board made, along with an explanation for his statements in the letter. [Graham] has yet to provide [McCutchen] with either. I have read the board minutes ... and watched the videos of the board meetings several times ... and do not see a vote for the resolution. I sent FOI requests to the district for the public vote and to date they have not provided it. ...
"For these reasons I'm still shocked that [Graham] made the statement in the letter to a sitting judge that a public vote took place on Feb. 15 and March 15 on the resolution when he nor the district can produce any record of it," he continued.
"What's most shocking, though, is that [Graham] is willing to threaten a citizen with prosecution for following law ... to report clear evidence of a violation of law and to seek prosecution for that violation."
McCutchen said if he doesn't receive the requested records proving Graham's contention of a public vote to the judge is valid, his next step will be to take the matter up with the Supreme Court's Committee on Professional Conduct for allegedly violating the rules against attorneys making false statements to a court.
Stay tuned. Either the evidence of such a vote is there, or it isn't.
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 email@example.com.