Little Rock City Attorney Tom Carpenter regularly disregards court orders so the mayor and city manager must participate in mediation sessions to try and resolve a lawsuit against the city, Pulaski County Circuit Judge Tim Fox said.
Carpenter has an ever-increasing track record of "flouting or avoiding" orders, the judge said.
The judge's ruling comes in response to the complaint of an attorney suing Little Rock that the city is refusing to abide by Fox's orders to attempt mediation as a tactic to "grind [my client] into dust, using its superior resources."
The judge said he is considering requiring City Manager Bruce Moore and Mayor Mark Stodola to attend mediation proceedings in every lawsuit against the city that comes before his court.
Moore said h̶e̶ ̶w̶o̶u̶l̶d̶ ̶d̶o̶ ̶w̶h̶a̶t̶e̶v̶e̶r̶ ̶t̶h̶e̶ ̶j̶u̶d̶g̶e̶ ̶w̶a̶n̶t̶e̶d he would follow a judge’s order requiring Moore to attend a mediation meeting in a lawsuit against the city if the city attorney concurs with the legality of the order*, and Stodola, a former elected prosecutor who's been a lawyer since 1974, said he would be pleased to represent the city in litigation meetings.
Fox also said he might relent on requiring the officials' attendance if the city guarantees to send a representative with negotiating authority to participate in the mediation.
Both sides are ordered to attempt arbitration within a month or face sanctions. For the plaintiff, those penalties could include having the lawsuit dismissed, and for the city, its defense could be annulled in part or whole by the judge.
This is the second time Fox and Carpenter have been at odds in the past year.
In a pending appeal to the Arkansas Supreme Court for sanctions Fox levied in April against the city and the city attorney personally, Carpenter, a lawyer since 1977, described the judge's actions as "a plain, manifest and gross violation of [judicial authority] that should be condemned."
Reached for comment on Monday, Carpenter, who has been the city's lead counsel for nearly 26 years and worked in its legal department since 1984, said he's asked his staff to look into the matter.
"The statute doesn't mandate mediation. [Fox's] scheduling orders all do. To order those people be there, doesn't make sense because it's always been they are available to make a decision, and they've always been available by phone," Carpenter said. "So, I don't know that's something within the jurisdiction of the court, but I've asked my staff to look at it, and if we think it isn't we will deal with it appropriately, and if we think it is, we will follow it."
Asked about how Fox described him, Carpenter said the judge has never told him that personally or raised those issues with him.
"There's no way I can comment on a statement made out of context with no background," Carpenter said.
Fox's Friday ruling came in response to a plaintiff's motion complaining about the city and asking the judge to force Little Rock to engage in meaningful mediation just as the judge had ordered. It also asked the judge to hold the city in contempt for not complying with his first mediation order.
City officials had not complied with that first mediation order because they had not sent anyone to the meetings with the authority to act on behalf of the city, the motion states.
A lawyer for the city did attend a meeting but he had no negotiating authority.
The judge said he could not penalize Little Rock because his order did not specifically require city officials to send a representative with negotiating authority to mediation.
Fox said he uses a standard mediation order in all of his cases.
But now, for the city of Little Rock, he will specifically order the mayor and city manager, as well as any other named defendants, to attend mediation meetings.
Fox said that was his intent in the mediation order. But he said Carpenter regularly chooses to interpret court orders as broadly or narrowly as it suits him.
The judge said he will be specifying who should attend mediation so Carpenter will be absolutely clear about his intentions.
"From now on, hopefully Mr. Carpenter will understand," the judge said.
Mediation involves the sides attempting to resolve their differences through direct negotiation that is supervised by a neutral third party. Arkansas mediators must be certified by the state Alternative Dispute Commission.
The judge's authority to require it comes from Arkansas Code 16-7-202. The statute is part of the "dispute resolution processes" of the judiciary as outlined by the Legislature.
It mandates judges to "encourage the settlement of cases and controversies pending before it by suggesting the referral of a case or controversy to an appropriate dispute resolution process agreeable to the parties."
The law does allow exceptions to the requirement, except when one side can show a compelling reason not to.
The law gives the judge leeway in determining that compelling reason, but the only one specifically described in the statute is when one side cannot afford the costs of mediation.
Fox, an attorney for 35 years and a circuit judge since 2003, said that for the mediation process to be effective, the participants must have the authority to make decisions, grant concessions and present guarantees.
Otherwise, the mediation is useless, Fox said.
The judge, a longtime advocate of the practice, said his intention is not to force either side to settle their differences outside the courtroom.
But by its nature, mediation can establish "meaningful dialogue" between the opposing parties, and that result is always beneficial whether their differences are resolved inside or out of the courtroom, Fox said.
At least, it can streamline the actual trial to make sure the proceeding is run as efficiently and arguments presented as clearly as possible so as not to waste jurors' time, the judge said.
"We save time and energy for every single person involved," Fox said.
The judge made those statements on Thursday at a hearing in the case that was attended by two of Carpenter's deputies, Amy Beckman Fields and Alex Betton. His attendance ruling was issued on Friday.
Carpenter was not at that hearing but he was not required to attend.
In April, Fox fined the city of Little Rock $10,000 for not being prepared to go forward on a trial in a 2-year-old lawsuit brought by a fired police officer who is suing over her termination.
When city officials did not pay the money by the deadline set by Fox or post the bond required for an appeal, the judge ordered the city manager to court to explain why his ruling had neither been followed nor appealed. He subsequently ordered Carpenter to undergo six hours of training in managing a law office.
Fox said Carpenter could not justify the trial delays with the explanation that only one of his deputies was assigned to the case.
The issues in that case are complex enough to require the city assign two lawyers to handle it, the judge said.
In the pending appeal, Carpenter argues that Fox did not give sufficient consideration to the city's efforts to reschedule the trial. The assigned attorney suffered the sudden onset of a "grievous" illness that required surgery to resolve, the pleadings filed in October state.
Fox is also in the wrong because he did not explain how $10,000 was an appropriate fine, failed to follow rules established by the high court and did not warn the city that it could face such a fine, according to the pleadings.
A response to Carpenter's filing is pending from the p̶l̶a̶i̶n̶t̶i̶f̶f̶s̶ ̶a̶t̶t̶o̶r̶n̶e̶y̶ ̶L̶u̶t̶h̶e̶r̶ ̶S̶u̶t̶t̶e̶r state Attorney General’s Office*. That answer to the Supreme Court is due Saturday although an extension can be requested.
Attorney Luther Sutter, in practice since 1995, is representing the former officer, Tiffany Malone, and a second fired officer, Natasha "Tasha" Sims who was the subject of Thursday's hearing.
Sims has two lawsuits against the city and former police chief Stuart Thomas, both over her firing.
Thursday was part of the trial on her suit appealing her dismissal. The judge is preparing to decide that case after a 1 1/2 days of testimony, evidence and argument.
In court filings, Sutter said the city's failure to mediate in good faith or even challenge the mediation order is an effort into bullying Sims into giving up. Since nothing could be accomplished at the mediation session, it was a waste of his client's resources, Sutter stated.
"Ms. Sims in not a rich person," Sutter wrote. "The city's only goal is to grind her into dust, using its superior resources. This court should not allow such conduct."
The city's response to Sutter's complaint is that Sims' "egregious behavior" that led to her firing precludes any consideration of rehiring her.
The city's position, which was relayed to Sutter at the meeting, is sufficient to satisfy the judge's order, the response states.
Fox's order also requires that the other defendants in Sims' lawsuit attend future mediation efforts.
The other defendants are Thomas and James Hudson, chairman of the city's Civil Service Commission.
Information for this article was contributed by Chelsea Boozer of the Arkansas Democrat-Gazette.
A Section on 11/22/2016
*CORRECTION: Little Rock City Manager Bruce Moore said he would follow a judge’s order requiring Moore to attend a mediation meeting in a lawsuit against the city if the city attorney concurs with the legality of the order. An earlier version of this article misrepresented Moore’s statement. Also, the Attorney General’s Office is representing the opposing party in the city’s appeal of a contempt citation from the same judge. The earlier version incorrectly listed a different attorney.