Federal judge won't turn back clock in Rogers city attorney lawsuit

 Lipscomb Lipscomb
Lipscomb Lipscomb

FAYETTEVILLE -- A federal judge Tuesday declined to grant a preliminary injunction returning Rogers City Attorney Ben Lipscomb's duties while his case against the city goes forward.

Lipscomb filed a federal lawsuit in November against the mayor and aldermen claiming his U.S. Constitutional rights were violated when most of his duties were transferred by the city council to a staff attorney, answering to the mayor.

Legal Lingo

Bill of Attainder

A legislative act that singles out an individual or group for punishment without a trial. The effect of such a bill is to nullify the targeted person’s civil rights. A bill of attainder is prohibited by Article I, Section 9, Clause 3 of the U.S. Constitution because it deprives the person or persons singled out for punishment of the safeguards of a trial by jury.

Source: Staff Report

Tension between Lipscomb and Mayor Greg Hines escalated when Lipscomb used his city identification to gain entry to a VIP tent at the Walmart Arkansas Music Pavilion last summer. A Springdale police officer said Lipscomb impersonated a law enforcement officer. A special prosecutor declined to file criminal charges against Lipscomb.

"At some point it became clear they wanted to get rid of me for a perceived indiscretion," Lipscomb said Tuesday.

Lipscomb and Chris Griffin, then a deputy city attorney, had conflicts. Hines contends Lipscomb suggested Griffin be made city staff attorney and many duties assigned to Lipscomb be transferred to Griffin. Aldermen created the staff attorney position and transferred Lipscomb's duties at their late September meeting. Three aldermen signed affidavits saying Lipscomb suggested the changes. Hines said he saw the change as a way to move the city forward.

The city's water and sewer board then opted to no longer use Lipscomb's services and Benton County Prosecutor Nathan Smith declined to certify Lipscomb to continue prosecuting cases in Rogers District Court. The prosecution duties were transferred to Bonnie Bridges, a former assistant city attorney who now also reports to the mayor.

Lipscomb contends Hines had the ordinance prepared to take away his duties then made an adjustment to the city's budget to take away his staff.

"It's not about who works for who," Lipscomb told U.S. District Judge Tim Brooks in Fayetteville. "It's about me doing the duties I was elected to do."

Brooks stressed Tuesday's hearing wasn't about the merits of Lipscomb's case but rather whether the status quo, before the council passed its ordinance, should be restored while the case proceeds through court.

"Like him or not like him, approve of the way he does his job or disapprove, he's still the elected city attorney," Brooks said. "He was elected by the citizens of the city of Rogers to do a job."

Brooks said state law provides a way to remove an elected official if he isn't doing his job but the city chose not to pursue that route. Brooks said he also couldn't resolve Tuesday whether Lipscomb may have brought the problems upon himself.

Brooks said while it was clear the ordinance was aimed at limiting Lipscomb's duties and the available state law remedy to try and remove Lipscomb wasn't pursued, he couldn't say the council passed the ordinance with the intent of punishing Lipscomb, a requirement for the injunction to be granted.

"The actual decision makers voted for it because they thought it was what both Mr. Lipscomb and Mr. Hines wanted done," Brooks said. "It's a close call but the court will find Mr. Lipscomb is not likely to prevail on the merits."

Brooks also said Lipscomb hasn't suffered irreparable damage because his salary has remained the same and he has fewer duties. Brooks said he was also reluctant to return the city to the level of dysfunction it faced in September.

Finally, Brooks said some of the harm and circumstances are the result of people and entities not party to the lawsuit but it isn't clear whether those actions were orchestrated by Hines and others at the city.

Brooks urged both sides to look at the time and money it will take to litigate the case and avail themselves of a settlement conference. Brooks tentatively set the case for trial May 18 and 19.

Brooks said a motion by two Rogers residents seeking to intervene in the case "has opened a whole new can of worms and an amendment to it makes it a bigger can of worms."

Brian Ferguson and Ellen Turner first filed to intervene Dec. 29, claiming Lipscomb isn't qualified for office because he lives near Beaver Lake and isn't a Rogers resident.

They amended their complaint Friday and now want Brooks to declare the office vacant. The amended motion claims Lipscomb's term as city attorney expired Dec. 31 and they want an injunction prohibiting him from continuing in office. Continuing to pay Lipscomb is an illegal exaction of taxpayer's money, they claim.

Brooks said he doesn't want to be put in the position of usurping the role of the Arkansas Supreme Court.

"Philosophically, I don't feel real comfortable on the federal bench making decisions that should be the purview of state courts," Brooks said.

Susan Kendall, an attorney for Ferguson and Turner, said the city cannot ask the court to rule Lipscomb is ineligible to serve and cannot seek a recall election.

Ron Wood can be reached by email at [email protected] or on Twitter @NWARDW.

NW News on 01/21/2015

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