Arkansas Democrat-Gazette

Mayor: Public casino meetings are ‘not realistic’

Panel to ditch ‘open’ plan, sign nondisclos­ure deals

- JEANNIE ROBERTS

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.

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