FORT SMITH -- The Sebastian County prosecuting attorney has determined that the Fort Smith School Board violated the Arkansas Freedom of Information Act last month when board members exchanged emails about electing board officers.
In a letter dated Tuesday to the seven School Board members, Prosecuting Attorney Daniel Shue said the board violated the Freedom of Information Act.
He reached the conclusion, he wrote, after viewing videos of the Oct. 24 board meeting, the Sept. 29 committee of the whole meeting and the eight emails exchanged among the members from Oct. 8-13.
In the Oct. 24 meeting, the board voted on a proposed slate of officers, president, vice president and secretary, for the 2016-17 school year without any discussion. The topic of the selection of officers was raised at the Sept. 29 committee meeting, but there was no discussion then.
The discussion of the officers was done through the emails.
Shue quoted in his letter part of the Arkansas Gazette Co. v. Pickens decision in 1975 that said the Freedom of Information Act is meant not only to learn and report the actions of officials but also to learn and report the reasons officials take such actions.
Fort Smith attorney Joey McCutchen, who complained to Shue about the emails, said Thursday that he asked Shue not to pursue a criminal complaint in the case.
But McCutchen said he planned to sue the board in circuit court early next week charging a violation of the Freedom of Information Act.
Shue wrote in his letter to the board: "This letter should serve as a reminder that the public's right to know must remain inviolate and that the Arkansas Freedom of Information Act must be strictly complied with at all times and under all circumstances."
Board President Deanie Mehl said Thursday that she and the board members believed their actions did not violate the law but, after receiving the letter Tuesday from Shue, vowed not to use emails again to discuss school business.
"The entire board is trying very hard to follow the letter of the law and be transparent," Mehl said.
Last year the board began video recording and putting up for public viewing School Board meetings and committee of the whole meetings, Mehl said.
School district attorney Mitch Llewellyn said he told Shue that the email discussions were legal because they were about a board organizational issue, no binding action was taken and the emails were made part of the board's meeting record.
McCutchen said he went to Shue after the Oct. 24 School Board meeting in which board members voted to elect the new officers without any discussion.
That made McCutchen suspicious, and he found board members had discussed the nominations through a series of eight emails.
The eight emails were attached to Shue's letter to the board.
The first email was sent Oct. 8 by board Vice President Jeannie Cole, who wrote a lengthy message that she would not accept re-election to the position.
Her email was in response to the suggestion at the Sept. 29 committee of the whole meeting that the current officers be re-elected.
Cole wrote in her email that she thought the positions should be rotated, as they have been in the past, which would make her board president.
Also, she wrote, the board secretary would become the vice president and the secretary would be chosen from among other board members.
Two days later, on Oct. 10, Mehl responded to Cole's email and said that because Cole was not willing to continue serving as vice president, board members should suggest a new slate of officers.
On Oct. 11, board member Wade Gilkey suggested a slate with Mehl as president, Susan McFerran as vice president and Bill Hanesworth as secretary. That slate is what the board approved at the Oct. 24 meeting.
Board members Yvonne Keaton-Martin, Hanesworth and the newest board member, Talicia Richardson, added to the discussion. Mehl sent an email Oct. 13 saying that from comments she had received, the tentative slate of officers would be Mehl as president, McFerran as vice president and Keaton-Martin as secretary.
Mehl said Thursday that just before the Oct. 24 board meeting started, Keaton-Martin asked to be removed from the proposed slate and that Hanesworth was substituted as secretary.
"That was good discussion, something we the people should see," McCutchen said.
He said in an email statement sent Wednesday that the School Board had not learned its lesson about transparency.
"At a time when the school board is trying to restore trust in hopes of passing a millage increase, it looks like they would hold their meetings in the light of day," the statement said.
McCutchen said Thursday that he expects the Arkansas Supreme Court to rule soon on his appeal in a Freedom of Information Act lawsuit that a woman he represented brought against the school district and board last year.
In that case, his client charged that the board violated the Freedom of Information Act when it met June 23, 2015, as the committee of the whole and decided to vote at its next board meeting whether to remove the Rebel as the Southside High School mascot and eliminate the fight song "Dixie."
The board did not notify the public that subject was coming up before the committee.
Circuit Judge James Cox ruled in the lawsuit in October 2015 that the School Board did not violate the act because district policy did not require an agenda to be published for its committee of the whole meetings.
State Desk on 11/11/2016