Southwest Times Record, Fort Smith
The ongoing lawsuit regarding city directors who violated the Freedom of Information Act continues, despite relatively easy ways to end the entire mess: 1. Admit you messed up. 2. Agree not to do it again. 3. Stop appealing judgments that have found you in violation of Arkansas state law.
It's really that easy. By doing those basic things, which all seem to be in the spirit of serving the public, the city saves taxpayer money and can focus time, energy and money on more pressing things.
The city of Fort Smith recently appealed a ruling to the Arkansas Supreme Court in a case involving FOIA violations. We thought this had been decided in January when a judge granted a summary judgment against the city, saying a series of emails exchanged between Fort Smith city directors and the city administrator in May and August 2017 constituted a violation of the act. The judge's order states members of the Fort Smith Board of Directors held "informal meetings subject to the FOIA."
Instead of fighting the law, why not spend that time moving forward and learning how to abide by the law?
It's unclear what the city hopes to gain by appealing the ruling. But what it has to lose is clear: taxpayer money, time away from other matters and, in our view, additional trust of constituents. What is gained by fighting for the right to hold more discussions away from public view?
The city believes it's correct in its assertion that the email exchange did not constitute a meeting, but spending thousands of dollars to prove that is wasteful and pointless. As of the end of June, more than $40,000 has been billed to the city by City Attorney Jerry Canfield so far in the matter, and we imagine that bill will continue to grow as the appeals process continues. There are far greater issues in the city that need time, attention and money (the $480 million EPA-mandated sewer upgrades come to mind).
Working on an appeal seems like a big waste of time. Instead, we suggest spending that time brushing up on how to better conduct the public's business in public. Last year's Sheriff's Office report on the case states that "FOIA training still appears to be relevant to the issue at hand." We have advocated before for regular training on FOIA laws -- at least once per year and following any election where new members join a local governing body. As communication continues to evolve (think texting and social media), it's important that our elected leaders stay informed on the laws surrounding it. It can be awfully costly and time-consuming when they don't.
The city followed the January ruling by rejecting a settlement offer in which plaintiff Bruce Wade's attorney, Joey McCutchen, would waive legal fees if the board admitted it had violated FOIA and "agree to not to do it again," and if it agreed not to appeal the court's decision.
Instead, the case moves on, this time to the Arkansas Supreme Court.
The subject of the emails revolved around Fort Smith Police Chief Nathaniel Clark's request to amend the rules of the Civil Service Commission to allow the hiring or appointment of officer positions to include "external applicants," or those from outside the city force. (The chief later withdrew the request.) City Directors Andre Good, Keith Lau and Mike Lorenz are co-defendants in the case.
Canfield maintains there is no law that keeps the city directors from exchanging "pre-meeting information," as it did in last year's email exchanges, and even if there was one, "it's not a meeting if no decision is made."
What he's saying is it's OK to discuss public business outside of a public meeting as long as no decision is made during that discussion.
We disagree, as did the judge in January who granted a summary judgment in favor of the plaintiff. Public officials cannot discuss public business outside of an open forum, whether a decision is to be made or not. That's been long established. Furthermore, notice of a meeting must be provided to anyone who has asked to be notified, and notice of special meetings must be provided to members of the media in the county who have requested notice of such meetings, as well as media elsewhere who cover regular meetings and have requested notice, according to the Arkansas attorney general.
Others have agreed that the emails are an FOIA violation, including Sebastian County Prosecuting Attorney Dan Shue, who wrote a letter to the board dated Aug. 28 in which he says he found he emails to be in violation of FOIA and that he agreed with the Sebastian County Sheriff's Office that "the information, discussion, and declaration of votes make the matter a meeting to which the public and media had no knowledge."
" ... no violation like the ones that have occurred should be allowed to occur in the future. The public deserves to be privy to all of the Board's hard work, not just some of it," Shue says in his letter.
Following the judge's January ruling, the Board of Directors' emails were made more accessible to anyone who wants to download them from the city's website. That seems to be an acknowledgement that the city agrees email exchanges are, in fact, discussions. Or perhaps they're just hoping they won't find themselves in the same legal predicament they're currently in. Either way, directors work for the public, and it's the public's right to know what's going on within the city.
We'll continue to say it as long as it continues to be true: You can't conduct the public's business outside of the public's eye. The city should admit that occurred and stop wasting time and money trying to prove it didn't. We're disappointed city leaders have let this issue linger for so long. It's time to move past these FOIA discussions, and we hope the city will be more proactive in making sure we aren't having them again anytime soon.