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Fort Smith lets email-suit deal lie; 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 Canfield 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.

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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.

City Information and Technology Services Department Director Russell Gibson told city directors Tuesday that plans were in the works in the next couple weeks to start making more city information, such as email traffic between city officials, accessible to the public on the city's website.

State Desk on 09/13/2017

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