School Board spurns offer to settle lawsuit

FORT SMITH -- The School Board on Thursday rejected a proposal to settle a lawsuit charging that it violated the Arkansas Freedom of Information Act, indicating that it would defend its position in court.

The board held a special meeting to discuss a proposed settlement to the lawsuit, which Fort Smith attorney Joey McCutchen filed in Sebastian County Circuit Court in November on behalf of resident June Bradshaw. The lawsuit accuses Fort Smith School Board members of violating the Freedom of Information Act in October when they discussed the election of board officers via email exchanges.

The terms of the proposed settlement, which McCutchen first presented in December, require that board members admit the email discussion violated the Freedom of Information Act, that they receive training on the act, that they agree to a court injunction against future violations of the act, and that McCutchen's attorney fees and costs for waging the lawsuit are reimbursed.

McCutchen said in a Jan. 26 email to School Board attorney Mitch Llewellyn that he would donate any fees he received to Darby Junior High School for a scorer's table and/or scoreboards, which a school official said would cost about $10,000.

The vote on a motion to reject the settlement offer was 5-2, with board members Bill Hanesworth and Wade Gilkey voting no.

Hanesworth said that from his reading of the law, he believed board members violated the act in discussing the election of officers by email.

Sebastian County Prosecuting Attorney Daniel Shue said he believed board members violated the act. McCutchen had sought an opinion from Shue after learning about the School Board's email discussion in November.

Shue wrote a letter to the board expressing his opinion and that he would not prosecute the board, but he wrote that the board should keep in mind that the Freedom of Information Act should be strictly adhered to.

Gilkey said Thursday that he believed the board should cut its losses and spend the school district's money in the classroom and not on fighting the lawsuit.

Board President Deanie Mehl said the district has spent about $10,000 on the lawsuit so far and probably would spend about $5,000 more: on Feb. 13 depositions of herself and Vice President Susan McFerran, and on a one-day hearing before Circuit Judge Stephen Tabor sometime in March.

Board members were concerned about the cost of continuing to litigate the complaint. Another lawsuit McCutchen filed for Bradshaw in 2015 against the board over an alleged Freedom of Information Act violation cost the school district about $70,000. A judge ruled in the board's favor, but the ruling is under appeal.

Of the five board members who voted to reject the proposal, the main concern expressed was that the settlement would expose themselves and future boards to contempt-of-court citations if members violated the act, even unintentionally, down the road.

When McCutchen first proposed the settlement in December, board members said they did not believe they violated the act because they did not take any formal action through the emails. Later in October, they attached the emails to the board's record of its vote on board officers. No action was taken on McCutchen's proposal at the December meeting.

The settlement offer expired, but McCutchen apparently renewed it in January. On Thursday, he released to the Arkansas Democrat-Gazette an email that he had sent to the school district dated Jan. 19 advising that his settlement offer was "off the table as the school board has missed the deadline -- for the second time."

State Desk on 02/03/2017

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