Fort Smith lets email-suit deal lie

El Dorado News-Times - - Local - By Dave Hughes Arkansas Demo­crat-Gazette

Mes­sages didn’t break in­for­ma­tion act, city at­tor­ney says

FORT SMITH — City di­rec­tors ef­fec­tively re­jected a set­tle­ment in a law­suit Tues­day, tak­ing no ac­tion on the claim that the city and some di­rec­tors vi­o­lated the Arkansas Free­dom of In­for­ma­tion Act.

City At­tor­ney Jerry Can-field said he took the city di­rec­tors’ lack of ac­tion as their de­sire to con­tinue con­test­ing the law­suit in Se­bas­tian County Cir­cuit Court that con­tends the city and city di­rec­tors vi­o­lated the act by il­le­gally con­duct­ing city busi­ness by email and that the email ex­changes con­sti­tuted a meet­ing un­der the act.

Fort Smith at­tor­ney Joey McCutchen, rep­re­sent­ing res­i­dent Bruce Wade, filed two law­suits against the city, one in June and one last month. The two law­suits re­cently were con­sol­i­dated into one.

Can­field and City Ad­min­is­tra­tor Carl Gef­fken said they rec­om­mended that the city di­rec­tors re­ject the set­tle­ment of­fer.

McCutchen’s set­tle­ment of­fer pro­posed that the city di­rec­tors ad­mit they vi­o­lated the Free­dom of In­for­ma­tion Act by hold­ing in­for­mal meet­ings “whether by email or other­wise in which one or more di­rec­tors makes a pro­posal for ac­tion to be taken by the board of di­rec­tors and ei­ther re­quests for sup­port for such pro­posal by one or more other di­rec­tors or makes a state­ment of agree­ment in sup­port of a pro­posal by an­other di­rec­tor.”

Can­field told city di­rec­tors he did not be­lieve their email ex­changes vi­o­lated the Free­dom of In­for­ma­tion Act. Also, ac­cept­ing the set­tle­ment would bind the city to fu­ture judg­ments based on the agree­ment.

He told city di­rec­tors there is no def­i­ni­tion of “meet­ing” in the Free­dom of In­for­ma­tion Act and be­lieved that was the in­tent of the Arkansas Leg­is­la­ture when it drew up the act.

“I be­lieve our Leg­is­la­ture has dealt with elec­tronic com­mu­ni­ca­tions,” Can­field told the city di­rec­tors. “They made it clear it was a pub­lic record and said noth­ing about it be­ing a pub­lic meet­ing. I think the Leg­is­la­ture has spo­ken.”

He also said he be­lieved rul­ings on the is­sue by the Arkansas Supreme Court are mov­ing to­ward elec­tronic com­mu­ni­ca­tions not be­ing re­garded as meet­ings as long as there is not a de­ci­sion made or pre­de­ter­mi­na­tion of a de­ci­sion in those com­mu­ni­ca­tions.

He said he did not see ev­i­dence of a de­ci­sion or pre­de­ter­mi­na­tion in the emails that were the sub­ject of the law­suits against the city di­rec­tors.

City Di­rec­tor Keith Lau said city di­rec­tors had to be able dis­cuss is­sues and ask

ques­tions of the city’s ad­min­is­tra­tion by email be­cause of the large vol­ume of doc­u­ments they have to deal with to prop­erly con­duct the city’s busi­ness. Last week’s meet­ing agenda pack­age con­tained more than 250 pages.

“We’ve got to be able to com­mu­ni­cate with each other with­out fear of get­ting pros­e­cuted for a Class C mis­de­meanor and paying a $500 fine and go­ing to jail for 30 days,” he said. “It’s ridicu­lous.”

Se­bas­tian County Pros­e­cut­ing At­tor­ney Daniel Shue is­sued an opinion last month on the emails in­volved in the law­suits, stat­ing that city di­rec­tors vi­o­lated the Free­dom of In­for­ma­tion Act by dis­cussing city busi­ness out­side a pub­lic meet­ing, but he de­clined to pros­e­cute the city di­rec­tors.

McCutchen filed the first law­suit against Fort Smith on June 21 in Cir­cuit Court. The emails that were the fo­cus of the law­suit mostly were from City Di­rec­tor An­dre Good to

Gef­fken crit­i­ciz­ing the Fort Smith Civil Ser­vice Com­mis­sion af­ter a May 22 meet­ing at which it took no ac­tion on a re­quest from Po­lice Chief Nathaniel Clark to change com­mis­sion rules that would al­low peo­ple from out­side the depart­ment to ap­ply for su­per­vi­sory po­si­tions.

In one email to Gef­fken, Good called for dis­so­lu­tion of the com­mis­sion.

Ac­cord­ing to ex­hibits in the law­suit, Gef­fken dis­trib­uted the emails to the other city di­rec­tors at Good’s re­quest. City Di­rec­tor Mike Lorenz emailed a re­sponse.

The other law­suit was

filed Aug. 21 and claimed that city di­rec­tors Lau, Good and Lorenz vi­o­lated the Free­dom of In­for­ma­tion Act when they ex­changed emails dis­cussing the set­tle­ment of­fer the city di­rec­tors dis­cussed Tues­day.

Also dur­ing Tues­day’s meet­ing, the city di­rec­tors dis­cussed ways to be more trans­par­ent with the pub­lic. They talked about the pos­si­bil­ity of tele­vis­ing study ses­sions, which are held in the weeks be­tween reg­u­lar vot­ing meet­ings, in ad­di­tion to the reg­u­lar meet­ings, which are tele­vised.

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