Attorney: Meetings law not violated

Fort Smith filing: Agenda poll OK

Posted: July 31, 2014 at 4:17 a.m.

FORT SMITH — Fort Smith city directors did not violate the state’s Freedom of Information Act when they voted outside of a meeting to remove items from upcoming meeting agendas, the city’s attorney argued in a Sebastian County Circuit Court filing.

City attorney Jerry Canfield filed a response to a lawsuit filed July 1 that charged city directors violated the act when they were polled by City Clerk Sherri Gard on whether to remove two proposed resolutions from upcoming meeting agendas.

The resolutions proposed to appoint an independent auditor to review city attorney fees and to form a commission to study whether to use a retained law firm or hire in-house counsel to handle the city’s legal work.

“The Arkansas General Assembly has delegated to municipalities, including municipalities operating under the city administrator form of government, the power to adopt rules to govern the formulation of agendas for meetings of the board of directors of the municipalities,” Canfield wrote. Fort Smith has a city administrator form of government.

Canfield asked that the lawsuit be dismissed.

Following the procedure under city code Section 2-31(4), after a director expressed a desire to remove the resolutions from the agendas, Gard contacted and polled each director. When four of the directors said they wanted to remove the items, she notified the mayor and city administrator, the media and others that the resolutions were being removed.

That happened twice, on June 11 and 26 involving the same proposed resolutions.

The lawsuit listed as defendants Gard and the four directors who voted to remove the resolutions from the agendas: Mike Lorenz, George Catsavis, Keith Lau and Kevin Settle.

Directors Philip Merry and Pam Weber, who proposed and seconded the resolutions, and Andre Good were not named as defendants even though they were polled as well.

The lawsuit, filed on behalf of Jack Swink, says the city directors should have voted on removing the agenda items in a public meeting and that the individual polling of directors outside a meeting violated the public meetings provision of the act.

The lawsuit asked that a judge rule that the directors and Gard failed to comply with the Arkansas Freedom of Information Act and to issue an injunction “prohibiting the defendants from removing any item from future board agendas in any manner that violates the AFOIA.”

Canfield argued in the city’s response that restricting the directors’ ability to add or remove items from their agendas would be an unconstitutional prior restraint on free speech, and would render the public meeting provisions of the Freedom of Information Act unconstitutional as a content-based regulation, overly broad and vague.