Judge rules School Board violated FOIA

Email same as closed meeting

FORT SMITH — A judge ruled Tuesday the Fort Smith School Board violated the Arkansas Freedom of Information Act last year when board members exchanged email proposing and discussing the slate of board officers for the coming year. Sebastian County Circuit Judge Stephen Tabor said in a four-page order board members didn’t intend to violate the act or deceive the public. He issued a permanent injunction against board members doing school business by email in the future without first providing lawful notice as required by the act. “The undisputed facts establish a meeting of the Fort Smith School Board took place in which public business was discussed, rationale was put forth and decisions were made,” Tabor wrote. “The undisputed facts also establish that no notice was given as required.” School Board President Deanie Mehl said Tuesday she wasn’t surprised by the ruling. She said shortly after the email came to light, she was aware board members erred in having the email discussion and said last year the board would refrain from holding discussions by email. She said she thought the lawsuit was unnecessary but it dragged on because the board had received conflicting opinions from law experts about whether their actions violated the Freedom of Information Act. “I hope we have finally closed this chapter and can focus on things we need to do,” she said.

The lawsuit was brought against the board by Fort Smith residents June Bradshaw and Greg Murray, through attorney Joey McCutchen. McCutchen said Tuesday he felt vindication for citizens’ rights to have the School Board’s business conducted in public.

McCutchen said in a news release he would forgo seeking attorneys fees and court costs in litigating the lawsuit if the School Board agreed not to appeal Tabor’s decision.

Mehl said Tuesday it hadn’t been decided whether the School District would appeal the ruling.

McCutchen said the facts were clear board members violated the Freedom of Information Act. After McCutchen showed the email to Prosecutor Dan Shue, Shue wrote a letter to board members in November saying their exchange of email violated the act.

Tabor’s order was a ruling on a motion for summary judgment McCutchen submitted, arguing there were no facts in dispute in the lawsuit he filed last year and Tabor should rule in Bradshaw’s and Murray’s favor as a matter of law. A hearing on the lawsuit had been scheduled for June 21.

The lawsuit centered on email School Board members exchanged from Oct. 8 to Oct. 13. It started with an email from board member Jeannie Cole, who wrote she wouldn’t accept the board’s vice presidency for another year.

Other board members commented on Cole’s announcement, expressed opinions and proposed alternate officer slates. The board voted on the proposed slate of officers at its next regular meeting.

Tabor wrote the School Board characterized the email string as simply an announcement by Cole not to be a candidate for vice president. The board would have had a better argument against the lawsuit if that were the case, Tabor wrote, pointing to Mehl’s email three days after Cole’s soliciting proposals for a new slate of officers.

“Clearly, this goes beyond mere comment on Ms. Cole’s announcement,” Tabor wrote.

Tabor recounted in his ruling board member Wade Gilkey’s proposal of a new slate of officers and his reasoning for the proposal, board member Susan McFerran writing she wanted to serve as an officer, and Yvonne Keaton- Martin’s wish to remain an officer.

Tabor also referred to Mehl’s email Oct. 13 in which she recapped the new slate and concluded by saying “the chair” would welcome further comments. A reasonable interpretation was a meeting was taking place, Tabor ruled.

Tabor also disagreed with the School Board’s contention that even if the email constituted a meeting, no notice was required. Characterizing the the email exchanges as a special meeting, the act required notification be given to news organizations, Tabor wrote.