Mayor: Public casino meetings are ‘not realistic’
Panel to ditch ‘open’ plan, sign nondisclosure deals
A Russellville committee established to review proposals for a Pope County casino license in an “open and transparent” process will instead sign nondisclosure agreements promising to keep details of the applications private, Russellville Mayor Richard Harris said Tuesday.
“I would prefer all of the information to be transparent, however, that is not realistic,” Harris said. “Companies want to keep their financial information proprietary and away from competitors.”
The committee also plans to have some meetings closed and use private emails.
An expert on the state Freedom of Information Act said public officials have the burden of proving that applications contain information that would help competitors. He also said the committee’s meetings and emails should be available to the public.
On Aug. 13, the Pope County Quorum Court, amid allegations of secret meetings, issued a surprise resolution endorsing Cherokee Nation Businesses, one of five competitors, for a casino application.
In response, the Russellville City Council’s Community Gaming Evaluation Committee was set up at the beginning of September after two Cherokee Nation competitors — Warner Gaming and Choctaw Nation — urged the City Council to conduct its own “open and
transparent” vetting process.
State constitutional Amendment 100, approved by voters in November, allows new casinos in Pope and Jefferson counties and the expansion of gambling at the racetracks in Hot Springs and West Memphis. The amendment says applications for Pope and Jefferson counties must be endorsed by local officials. If the casino is to be located inside city limits, Amendment 100 requires endorsements from the city, as well.
In June, the state Racing Commission rejected all five applicants for the Pope County casino license because they didn’t meet a commission rule that specified that the endorsements had to be from current officials. After the county endorsed Cherokee Nation Businesses, the Racing Commission promptly opened a second, 90-day window to accept applications.
Russellville was omitted from an agreement for the county, various cities and nonprofit organizations to share a proposed $38.8 million “economic development fee” that would be paid by the Cherokees.
Harris previously said, when setting up the vetting committee, that the city was “striving to get a revenue stream for the citizens of our community.”
Other Russellville City Council members said they wanted to “bring some transparency” to the process that was not included in the county’s selection process.
The city’s resolution establishing the committee states that “most importantly” the review and evaluation process should be “open, accessible and transparent to the public and press.”
At the city’s first committee meeting on Sept. 12, members began talking about meeting with casino applicants in private. Members of the public who asked to speak to the committee were denied the chance because Council Member Chris Olson, who sponsored the resolution, but is not on the committee, said it was not a public meeting.
On Monday, the committee — comprised of Council Member Eric Westcott; Russellville School District Superintendent Mark Gotcher; Arkansas Tech University Chief of Staff Mary Gunter; Pope County Justice of the Peace Bill Sparks; businessman Bart Langley; and banker Nathan George — agreed to sign a non-disclosure agreement for each applicant promising not to disclose any information that would give an advantage to their competitors.
On Tuesday, Harris said Langley suggested the nondisclosure agreement “based upon his experience in dealing with companies during acquisitions and their desire to keep some critical information” such as financials, from their competitors.
Attempts to reach Langley for comment were unsuccessful as of late Tuesday.
Harris said an email group also will be set up for operators and committee members to converse privately.
“It is a clearinghouse for operators to provide questions or comments to the committee,” Harris said.
Presentations from applicants to the committee will be held privately, according to the committee, but Harris said a page is being added to the city’s website to make “all information that is public” available for review.
Also, each operator will give a 30-minute public presentation Oct. 7, said Russellville City Attorney Trey Smith.
“I would assume that any information associated with the proposal that is nonproprietary will be available to the public,” Harris said.
When asked if he felt the process was open and transparent, Harris said, “It is the intent of everyone involved that this process be as open and transparent as possible.”
“I know that the committee is committed to this position,” Harris said.
Smith, the city attorney, said it is up to the individual casino operators what they choose to declare as confidential when they sign the non-disclosure agreement.
“The vast majority of the information will be open to the public,” Smith said. “They will have to justify to the committee why they feel certain details should be exempt.”
But John Tull, an expert on the state’s open-records law and general counsel for the Arkansas Press Association, said “the devil is always in the detail” when it comes to the state Freedom of Information Act and that nondisclosure agreements do not cancel the law.
“The committee or city would have the burden of proving the information is truly of a competitive nature so as to give competitors an advantage,” Tull said.
Furthermore, if the city has delegated authority to the committee, “then it is certainly subject to FOIA and to the open meeting requirements because it would be a “governing body” versus only an advisory committee, Tull said.
“The fact that a councilperson and a Quorum Court member are on the committee makes a strong argument this is more than a merely advisory committee and open meeting requirements should apply,” Tull said.
Whether a governing body or not, the Freedom of Information Act applies to the records of the committee — including the applications, emails and other correspondence — “as it is composed in part by public paid officials and may receive other funding as well as potentially expending public funds,” Tull said.
Harris said in the committee’s inaugural meeting that every public resource, including meeting room, copying expenses and supplies, would be made available to the group.
Setting up the private email server is not in and of itself a violation of the state Freedom of Information Act, so long as the emails are provided to the public when requested, Tull said.
Anna Stiritz, a member of the anti-casino group Citizens for a Better Pope County, said the information should be public.
“It involves our entire community,” Stiritz said. “And given the stated reason for the formation of the committee, it’s disappointing to hear that they intend to mirror the actions of the Quorum Court by keeping these negotiations secret from the public.”
Stiritz provided an affidavit — along with Pope County Justice of the Peace Joseph Pearson and five other residents — last month to support a complaint filed by Hans Stiritz, on behalf of Citizens for Better Pope County, alleging that county officials held meetings that violated the state Freedom of Information Act to discuss casinos.
The case was assigned to Little Rock lawyer Jason Barrett by the office of the prosecutor coordinator in Little Rock to review the complaint to determine if charges will be filed.
Ben Cross, the Pope County county judge, said neither he nor the county Quorum Court required any of the casino applicants to sign a nondisclosure agreement. He said copies of the applications were kept in his office and made available for public inspection.
“[I did it] to promote competition between potential vendors, to provide the public with as much of the same information as had been provided to me, and to accept feedback from the public on their views as to what a casino resort should consist of,” Cross said.
Kelly Jett, the founder of the pro-casino group Pope County Majority, said the creation of the city’s vetting committee is “less about the people and more about making a point” to push back against the county for “entering into an agreement without consulting the city beforehand.”
“We had plenty of access to the proposals through the [county] judge and the Quorum Court before, but now it seems the city is hitting us with confidentiality clauses and sealed envelopes among other things,” Jett said.
The state Racing Commission allowed casino applicants in the first application window to redact information they considered would give an advantage to competitors before the commission released the applications to the Arkansas Democrat-Gazette in answer to a Freedom of Information Act request last month.
Also, the applications were distributed to the Racing Commission members at the time of submission, but were not released when requested by the media until the decision process was complete.
The city’s resolution requires
Kelly Jett, the founder of the pro-casino group Pope County Majority, said the creation of the city’s vetting committee is “less about the people and more about making a point” to push back against the county for “entering into an agreement without consulting the city beforehand.”
the committee to evaluate each gambling proposal and determine which one is the best option for the community. A final report to the Russellville City Council is due by Oct. 14.
Harris said he expects the committee to send out the Request for Proposals sometime this week to gather casino applications for review.
Initially, the due date of the final report was Nov. 5, but Smith, the city attorney, said the committee wanted to allow more time for the City Council to discuss the committee’s final choice before the Nov. 18 closing of the second application window of the Racing Commission.