A federal judge ruled Friday that private attorneys hired by the Arkansas Highway and Transportation Department can continue to represent the agency in an employment-discrimination lawsuit, but he left it to state authorities to decide whether the lawyers can be paid with public funds.
In a one-page order, U.S. District Judge J. Leon Holmes wrote that he won’t disqualify attorneys Carolyn Witherspoon and Joseph Ramsey from the case because they are enrolled to practice law in federal court.
“As to whether the defendants have the authority to use public funds to compensate Witherspoon and Ramsey for their services, that issue need not be decided in this employment discrimination case,” Holmes wrote. “If that question needs to be determined, the proper authorities of the State of Arkansas must determine it.”
The ruling denies a motion by Darren Smith, a former Arkansas Highway Police officer who is suing that agency and several high-ranking officials over promotion and disciplinary practices he believes constitute racial discrimination.
In his order, Holmes wrote that Smith had moved to disqualify Witherspoonand Ramsey, “arguing that the defendants have not gone through the proper steps under Arkansas law to obtain permission to retain outside counsel.
“If that is true, the defendants may lack the authority to use public funds to pay the attorneys for their services, but it does not mean the lawyers are disqualified from representing the defendants in this action,” Holmes wrote.
The order sided with the Highway Department but only related to the specific case. It did not address the bulk of the arguments made by both sides in motions filed over the past few weeks.
Reached Friday, Witherspoon said: “We’re pleased the court has decided that the case can now proceed.”
Smith’s attorney, Douglas Carson of Fort Smith, said “no decision has been made” on whether his client would pursue the matter further.
“We just got the order this morning,” he said.
Carson’s motion to disqualify the attorneys was filed last month and about two weeks after Pulaski County Circuit Judge Tim Fox ordered Secretary of State Mark Martin to quitusing outside attorneys to represent his office in an open-records lawsuit.
Fox said in an Aug. 12 ruling that Martin couldn’t use outside counsel in litigation because he didn’t follow the law requiring state agencies to secure the approval of the attorney general before hiring outside counsel.
The state judge ruled that Arkansas Code 25-16-702 requires Martin to obtain a waiver from Attorney General Dustin McDaniel before hiring lawyers to represent him in the lawsuit. The statute states that the attorney general “shall” represent “all state officials, departments, institutions, and agencies.”
Martin had retained the Quattlebaum, Grooms, Tull & Burrow law firm to represent him. Martin has asked that Fox reconsider his decision to disqualify the firm, but his office’s staff attorneys, A.J. Kelly and Martha Adcock, havetaken over his representation in the lawsuit.
Carson cited the same law in arguing that the Highway Police, a division of the Highway Department, should quit using Witherspoon and her Little Rock law firm, Cross, Gunter, Witherspoon & Galchus PC.
Carson also cited Arkansas Code 25-16-703(a), which states that the attorney general “shall maintain and defend the interests of the state in matters before the United States Supreme Court and all other federal courts and shall be the legal representative of all state.”
Gov. Mike Beebe didn’t have enough information available Friday to know whether the Highway Department violated the law and likely would consult with McDaniel, the governor’s spokesman, Matt DeCample, said.
“The governor always feels the law should be followed,” DeCample said. “In this particular case, the judge didn’t speak to the law itself.”
The department didn’t notify the governor’s office, but its appropriation bills might not have required it to do so, he said.
“We don’t know if they had to,” DeCample said. “These situations can differ significantly. I don’t know where this one falls.
Aaron Sadler, spokesman for McDaniel, said his office hadn’t been consulted about the Highway Department case.
“We were unaware of the decision to retain outside counsel, but the attorney general’s office stands ready to assist them going forward,” he said.
Smith, who is black, filedthe lawsuit in May, accusing the Highway Police and its chief, Ron Burks, who is white, of racial bias in employment practices, including Smith’s firing in July 2012.
White officers are given the bulk of promotions, and black employees are punished more severely for policy violations than white officers who commit the same offenses, the lawsuit contends.
Smith’s lawsuit seeks an injunction barring any retaliation against Smith for filing the lawsuit, and seeks monetary damages, his reinstatement and court oversight of the hiring, promotion and employment practices of the Highway Police and Highway Department to “assure an absence of racial discrimination in employment decisions.”
In addition to Burks, the defendants named in the lawsuit are the Arkansas Highway Police; Scott Bennett, director of the Arkansas Highway and Transportation Department; Maj. Paul Claunch, Capt. Jeff Holmes and Lt. James “Boobie” Moore. All defendants are named individually. Burks and Bennett also are named in their official capacities.
All of the defendants have denied the allegations in Smith’s lawsuit and have asked that the lawsuit be dismissed.
Northwest Arkansas, Pages 9 on 09/21/2013