Sebastian County Prosecuting Attorney Daniel Shue recently determined the Fort Smith Board of Directors violated the Arkansas Freedom of Information Act, a law designed to ensure residents can monitor government decision-making that spends their money and impacts their lives.
But he's not going to prosecute the offenders.
What’s the point?
Directors in Fort Smith should not hold discussions by email and respect the role of elected officials in open government.
Call it the Deferred Action for FOIA Violators.
Oh, we've heard about prosecutorial discretion, which might mean the local prosecutor's office has limited resources and can't go after every law violation as if it's capital murder. It also might mean there are certain politically touchy situations prosecutors would just as soon avoid. Charging elected officials with a misdemeanor crime isn't very comfortable when those folks might sit a few pews away in church on Sunday or just a table away at the local Rotary meeting.
Plus, it's only the people's right to know. It's not like anyone's really hurt by it, right? Shue apparently has an ability to examine and interpret the internal thoughts of potential law violators, as he declared none of the city directors' actions were "nefarious."
"Aw, shucks, Mr. Prosecutor. We didn't mean nothin' by it," apparently works in Sebastian County.
Judge Isaac Parker probably heard that a few times, too.
Our modern-era situation got started when two residents complained about a series of emails in May in which directors -- the people elected to make city laws and annual budgets -- discussed the dissolution of Fort Smith's Civil Service Commission. An attorney, Joey McCutchen, had also represented a man who sued the city alleging the emails constituted an illegal meeting that tried to hide discussion of public policy matters from public view.
A second set of email exchanges, in which a lawsuit about the first emails was discussed, was exchanged among board members in August. It's probably no minor fact that the board of directors had earlier attempted to force the Civil Service Commission's chairman into recusing from issues before the commission. Why? That chairman, Chip Sexton, is also a lawyer in a local firm. Any guess who else is part of that firm? One Joey McCutchen.
It should come as no surprise to people who seek election to public bodies -- but so often does, apparently -- that the business they're conducting is not a private matter. Except for a narrow set of circumstances, state law requires these representatives of the people should actually hold discussions in full view of those same people. It's a pretty good way to govern. Not always comfortable for decision-makers, but if it makes them too uncomfortable, there's always a solution: Quit.
Far too often their solution goes another direction. They seek to change the law so that more of the public's business can be done behind close doors or in some other manner that makes those discussions more, well, private. It's as though "the People" only matter around election season.
Director Keith Lau last week said he was frustrated he can only discuss public business in a public meeting. So what's his idea? He's already approached a state representative about amending the Freedom of Information Act to create more flexibility "for the digital age."
Did you ever talk with someone who moved into a house next to an airport, then started complaining about all the noise coming from the airplanes? In other words, Lau knew when he ran for office in 2012 that it was a public body, that it does the public's business and that he has no business trying to shield his or other directors' deliberations from public view.
Empowering elected leaders to conduct discussions of public business outside of public meetings thwarts the very nature of open government. The solution isn't to define more ways to get around public discussion. Government leaders have functioned through public meetings for decades. If it's too much trouble, there's always the private sector, which we highly recommend for people who dislike public scrutiny.
The solution is to embrace public discussion as a fundamental part of being an elected leader.
Thankfully, Shue determined Fort Smith's directors had indeed violated the law, but he chose not to prosecute. In a letter to the board, however, he warned no violations should occur in the future. "The public deserves to be privy to all of the Board's hard work, not just some of it," Shue wrote.
We appreciate that affirmation, but forgive us for wondering if the city directors aren't exactly wiping sweat off their brows. The city of Fort Smith has enough history of trouble meeting the clear Arkansas Freedom of Information Act standards of behavior that city leaders should know how to behave in the public's interest. Enough, let's say, that violations typically appear to be an issue of will rather than one of knowledge.
McCutchen, for his part, said he's satisfied with Shue's finding, calling it a "big stick" if city directors commit further violations. Of course, baseball players know big sticks don't do much if you're not willing to swing them from time to time.
Commentary on 09/06/2017