OPINION | MIKE MASTERSON: In the crosshairs


Bulldog Fort Smith attorney Joey McCutchen and his law partners Stephen Napurano and Chip Sexton aimed their sights eastward to Cabot last week as they filed another Freedom of Information Act lawsuit, this one alleging the school district board failed to legally vote on a crucial public matter.

Readers know I write quite often about McCutchen and his team's aggressiveness in filing FOIA suits (that sometimes earn him nothing financially).

I believe it's an important topic to pursue in the public interest and, sadly, I don't see attorneys in other communities regularly championing people's causes and holding feet to the fire over FOIA violations.

In Cabot, that community's school district board raised the superintendent's quarter-million-dollar salary, apparently without ever voting on doing so as the law requires. If that turns out to be true, their action wasn't legal and raises the question of if this was the first time.

Representing client Jimmie Cavin, McCutchen's complaint against the district contends its members illegally approved "a resolution on Feb. 15, 2022, to increase Cabot School District Superintendent Dr. Tony Thurman's salary to $251,327 and extend his contract through June 30, 2025."

That resolution was signed by Board President Joe Trusty and says the board approved those changes on Feb. 15.

But the bulldog and his client say there's a problem with that. It seems neither the recording of that meeting nor the minutes show that members discussed or voted on the resolution during their meeting, which is required under the law.

McCutchen said his client discovered the resolution after submitting an FOIA request for information about Dr. Thurman's compensation.

In a news release, McCutchen said the FOIA allows, but doesn't require, "school boards to enter executive session to discuss personnel matters. However, boards are then required to reconvene in public to formally vote on the matter. Any resolution considered or arrived at in executive session is not legal unless the governing body formally votes on the resolution in public.

"The resolution provides Dr. Thurman's contract would run through June 30, 2025; gives a monthly vehicle allowance of $1,000; provides reimbursements for basic vehicle expenses up to $6,000 annually; provides 20 days of vacation per year; and increases his salary to a whopping $251,327."

McCutchen said there is no ambiguity in the law. "Executive sessions shall not be called for the purpose of defeating the spirit of FOIA," he said. "The public deserves complete transparency, especially when they're paying a superintendent over $250,000 and providing perks that a Fortune 500 CEO would be proud of."

McCutchen said the practice of not voting in public with regard to the superintendent's contract "has been going on for years in contravention of the law."

Cavin added, "Elected school board members take an oath, and it isn't to circumvent the law."

There's a backstory over this FOIA issue that I found rather stunning. It seems the prosecutor to whom Mr. Cavin turned for legal action against the board implied he might prosecute Cavin for raising the issue, even writing to a local judge.

In a letter to Lonoke County Prosecutor Chuck Graham, McCutchen writes, "I have been retained to represent Mr. Jimmie Cavin regarding matters related to a letter dated Oct. 3, 2022, that you sent to Judge Teresa Smith. ... [Y]ou write to Judge Smith that Mr. Cavin should be aware that an affiant who seeks the prosecution of an individual for frivolous, groundless, or malicious reasons is guilty of the crime (Class A Misdemeanor) punishable by a $2,500 fine and up to one year in jail. To be clear, Mr. Cavin takes this letter very seriously and considers it to be a threat of prosecution. ...

"I have reviewed this matter carefully," McCutchen continued. "I need your help and clarification immediately. You have represented to Judge Smith that '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.'

"I cannot find any documentation of the public vote on the Feb. 15, 2022, resolution by the Cabot School Board. A reference in the subsequent March 15, 2022, school board meeting minutes stating 'the contract of Superintendent Dr. Tony Thurman to be extended through June 30, 2025,' does not in any way prove that a public vote on ... Feb. 15, 2022, occurred."

He then asks the prosecutor to provide any proof he has to the contrary.

Stay tuned, valued readers. Things don't appear to add up. Why would a prosecutor with authority to investigate potential FOIA violations write a judge about Cavin supposedly filing a frivolous complaint over the board's apparent violation? Does he in fact have the proof to offer the judge that Cavin's claim is frivolous?

The truth of whether the law was broken will soon emerge and we will stay tuned to see whether prosecutor Graham will indeed arrest Mr. Cavin for daring to complain to him in the public interest.


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.


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