FORT SMITH -- An attorney has filed a second lawsuit against city directors claiming that they violated the Arkansas Freedom of Information Act by discussing city business by email.
Joey McCutchen, who filed the lawsuit Monday in Sebastian County Circuit Court on behalf of Bruce Wade of Fort Smith, asked a judge to declare that emails circulated by directors Andre Good, Keith Lau and Mike Lorenz constituted an unlawful meeting and one for which no notice was given.
The lawsuit asked that the judge order the city directors to stop "conducting business out of the public view through private emails."
Lau and Lorenz expressed frustration when contacted Tuesday at not being able to discuss business in any setting other than a public setting. Lorenz said the strictness with which some interpret the law would make it impossible for government to function.
Lau and Lorenz also said the law was unclear and the Arkansas Legislature has done a poor job defining a formal meeting versus an informal meeting.
Arkansas law 25-19-106 does not make a distinction between formal and informal meetings. It states, in part, that "all meetings, formal or informal, special or regular, of governing bodies of all municipalities, counties, townships, and school districts and all boards, bureaus, commissions, or organizations of the State of Arkansas, except grand juries, supported wholly or in part by public funds or expending public funds, shall be public meetings."
Several opinions by different attorneys general, which are nonbinding, have said that email communication between members of the same public governing body could violate the portion of the law that addresses public meetings. They noted that a violation could occur if members are discussing or debating an issue through email, or under circumstances that suggest the governing body was deliberating in secret.
The Sebastian County sheriff's office is conducting investigations into the emails sent by the city directors. Capt. Philip Pevehouse of the sheriff's office said Tuesday that the prosecuting attorney's office asked him to investigate a June 2 complaint about the directors' emails and a second complaint that was made Monday.
Prosecuting Attorney Dan Shue said Tuesday that the June 2 complaint was made by retired Fort Smith police officer Kim Thompson. The Monday complaint was made by McCutchen.
Pevehouse said the investigations center on alleged Freedom of Information Act violations by city directors and whether a meeting had taken place. He said he completed and turned over to the prosecutor the part of the investigation concerning the June 2 complaint and was investigating the complaint he received Monday.
His role was to gather information about the complaints and submit it to the prosecutor for determination of whether a meeting had taken place in violation of the Freedom of Information Act, he said.
Shue said he has not made a decision on what action, if any, he will take on the investigation.
The lawsuit McCutchen filed Monday said the three directors violated the law when they sent emails to the other directors and City Administrator Carl Geffken expressing their opinions about a settlement offer McCutchen made to the city on a Freedom of Information Act lawsuit he filed against Fort Smith in circuit court in June.
That lawsuit charged that the emails the directors exchanged among themselves involving the Fort Smith Civil Service Commission constituted a meeting that should have been held in public.
McCutchen proposed in the settlement offer that the directors admit the emails violated the Freedom of Information Act and that they agree in the future not to hold informal meetings by email or otherwise without first giving public notice.
The lawsuit McCutchen filed Monday included copies of the emails the city directors sent out to other directors and city officials commenting on McCutchen's settlement proposal.
The email from Lau dated 8:58 p.m. Aug. 9 said: "So according to the premise of guilt proposed in this settlement my response to all in this email is an admitted violation of AFOIA. So to all other than Carl close your eyes and to Carl I do not want to settle or admit guilt in any way on this matter. I'm tired of being Joey McCutchen's advertising firm and want to take a stand against his BS."
Good responded to Lau's email at 10:08 p.m. Aug. 9: "Well said Director Lau. I wholeheartedly agree."
Lorenz sent an email at 6:47 p.m. Aug. 11: "I am stating my opinion only and suggest that each of us carefully considers this case/offer and be prepared to fully discuss and support such opinion at the Sept. 5th board meeting. I am simply providing my opinion in this matter so feel free to stop reading at this point and delete this email if you do not want to see my opinion. I will be brief and explain in detail at the meeting during our discussion on September 5th.
"Opinion: This lawsuit is a frivolous waste of resources and mocks the FOIA law and our legal system. I am hopeful that the judge will not only find in the city's favor but also fine McCutchen for such frivolous abuse of the law and using these cases for what is clearly a marketing/advertising plan for his law firm. I will not admit guilt to a violation that I know does not exist."
Lorenz said Tuesday that he also believes a judge should rule on one lawsuit before McCutchen is allowed to file another lawsuit on identical charges.
State Desk on 08/23/2017