A lawsuit was filed Wednesday against Fort Smith accusing its board of directors of violating the Arkansas Freedom of Information Act by doing business privately through email from May 21 through May 31.
Lawyer Joey McCutchen filed the suit in Sebastian County Circuit Court on behalf of Bruce Wade, who ran for director and lost in the Nov. 8 general election to Andre Good by a vote of 1,812 to 1,492.
McCutchen alleges city directors discussed the Civil Service Commission in several email. The commission governs the Fort Smith fire and police departments.
The commission was scheduled to meet May 22 to consider rule changes proposed by Police Chief Nathaniel Clark allowing people to be hired outside the department for supervisory positions such as sergeant, captain or major.
The Fraternal Order of Police "vehemently opposed" the changes, according to the suit.
In the lawsuit, McCutchen cites a May 21 email Good sent to City Administrator Carl Geffken and the seven-member board.
Good was mistakenly under the impression the Fraternal Order of Police had taken a vote of no-confidence in Clark, McCutchen wrote.
In his May 21 email to Geffken and the board, Good wrote he was "dismayed" at the no-confidence vote, that the commission should be dissolved if it goes along with the no-confidence vote, that the commission is outdated, that either the FOP or the commission (or perhaps both) is "evil," that Good sought a full commitment to Clark, and that Good "wants to be on the right side of history," according to the suit.
"Director Good's actions were an attempt at lobbying the entire Fort Smith Board of Directors to disregard the input of the Fraternal Order of Police in a public meeting before the Civil Service Commission and to eliminate and perhaps bully the Civil Service Commission ..." McCutchen wrote.
At the May 22 commission meeting, Clark's proposal failed because no motion was made to accept his proposal.
According to the suit, on May 23, Good sent Geffken an email saying the Civil Service Commission should be dissolved "as quickly as possible."
"Please share this with the entire board of directors," Good wrote at the bottom of the email.
"Clearly, these are matters on which public input is allowed and secret meetings conducted by email are not permitted by FOIA," according to the lawsuit.
Contacted Wednesday afternoon, Good said he was busy at work at Federal Express and was unaware of Wade's lawsuit.
"Right now I really don't have any comments," he said.
Director Mike Lorenz said receiving information in email from the city administrator is acceptable, as well as some email discussion among directors, but not discussion about how they would vote.
"At no time has there been any discussion that 'I'm going to vote this way and you should vote this way,'" Lorenz said Wednesday. "There's no voting discussion going on.
"If you got into a specific discussion of a topic, that's where you cross the line. But if we get information provided by the administrator for clarification purposes or to make a statement, I don't feel that's a violation."
The lawsuit cites a May 22 email in which Geffken wrote he didn't support a more restrictive policy change than the one proposed by Clark. Good responded with a similar comment, then Director Mike Lorenz wrote on May 23, "I agree 100% with you both!"
"Such email was, in and of itself, an information meeting within the definition of the FOIA," according to the suit.
Lorenz said he didn't believe the exchange was an example of directors polling each other to see how they would vote on that topic.
The suit also cites a May 30-31 exchange in which Geffken and directors discussed the commission.
On May 30, Geffken emailed Clark and the board offering the following options: do nothing, pass a non-binding resolution showing board support of allowing external applicants, increase the size of the Civil Service Commission by no more than two, or dissolve the commission.
Lorenz agreed with the idea of a non-binding resolution, which was his idea in the first place, according to the suit.
"That said, I am not sure that I understand the need or function of the CSC as the non-uniform employees do not have such a 'safety net' nor do employees in virtually all other private industry," according to Lorenz's email.
"Again, Director Lorenz advocates his support for eliminating the Civil Service Commission, which should have occurred in a public meeting," according to the suit.
Good responds to Lorenz -- and copied to the board, Geffken, Clark and Mayor Sandy Sanders -- with an email saying, "I agree with you; allow Chief Nathaniel Clark to make the necessary changes to best operate his department and give him the opportunity to perform his sworn duties, giving him authority in policy."
"Clearly they're voting and polling," McCutchen said. "It's like they went down to a local restaurant and they want to discuss this issue and two of them speak and the rest of them just listen ... and the media doesn't receive notice of it."
The resolution passed after discussion at a June 6 board meeting.
McCutchen said "the emails demonstrate a pattern of engaging in secret discussions about matters that are required to occur in a public meeting."
"There was no notice of the meetings given and the public was deprived of the opportunity to participate and view the discussions," he said.
In the lawsuit, McCutchen asked the court stop the directors from conducting business in private email and prohibit them from doing so in the future.
NW News on 06/22/2017