Board revises email-meeting settlement bid

Fort Smith school officials excise violation, fee sections

FORT SMITH -- The Fort Smith School Board amended Thursday a proposed settlement in an Arkansas Freedom of Information Act lawsuit by deleting sections that suggested the board violated the act.

Also omitted in the proposed settlement is a paragraph in which Joey McCutchen, a Fort Smith attorney representing plaintiff June Bradshaw, would seek a Sebastian County circuit judge's order for attorney fees. And the board deleted a sentence that said board members decided in email discussions on a slate of candidates for board officer positions.

Board Vice President Susan McFerran voted against the proposed settlement. Board member Yvonne Keaton-Martin abstained.

The board sent the proposed agreement to McCutchen in hopes of settling the lawsuit he filed on Bradshaw's behalf in November. It accused the board members of violating the act when they held an email discussion over several days in October regarding the composition of the slate of board officers for the coming year.

Board members voted on the officers, which differed from that in the email discussion, at their October board meeting. They also included the emails in the meeting record.

Board members said that, while the email discussion was a mistake, they did not violate the Arkansas Freedom of Information Act.

During the 40-minute meeting Thursday, board President Deanie Mehl said it wouldn't hurt to make the good-faith offer of the amended proposed settlement to McCutchen and Bradshaw.

"I do think if there is any way to stop the hemorrhaging of attorney fees on both sides, it's in the best interest of all of us," she said.

McCutchen called the board's vote bizarre and said he would not accept the proposed settlement.

McCutchen said Mark Moll, the private attorney for Mehl and McFerran, drew up the proposed settlement and submitted it to him.

Mehl said Moll drew up the proposed settlement after McCutchen deposed Mehl and McFerran for the lawsuit earlier this month. She said Moll took the proposal to McCutchen and they worked on it, but it was not given to School Board members for review until Monday.

In Thursday's meeting, board members objected to portions of the agreement and voted to delete them before sending it to McCutchen.

Mehl said he has been frustrated over the lack of consensus among lawyers she consulted about whether board members violated the Freedom of Information Act by discussing the officer slate by email. She said some attorneys say they violated the act, and others say they didn't.

School district attorney Mitch Llewellyn questioned whether board members should risk signing the settlement when they could wait for the scheduled May 10 trial on the lawsuit in circuit court and let the judge decide.

"You're no worse off than you are today," he said. "Plus, you'll have a clear decision at that time that you can rely on going forward on what does or does not represent a violation of the Freedom of Information Act."

Board member Jeannie Cole put some of the blame for confusion on the issue on the Arkansas School Boards Association.

She said that from inquiries she made, she found there is no agreement on how School Board officers should be elected and that practices vary from district to district. She said some even hold informal discussions before they go into their meetings, which she said could violate the Freedom of Information Act.

State Desk on 02/24/2017

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