Fort Smith attorney Joey McCutchen doesn't tolerate public servants with a penchant for violating our state's Freedom of Information Act.
Today, Fort Smith Public Schools' Board of Education is finding out just how committed McCutchen is to holding potential violators accountable.
With local citizen and mother June Bradshaw as plaintiff, McCutchen filed suit against his local board on Nov. 22 claiming it had secretly conducted school business through a series of email exchanges where the members decided on a slate of candidates for officer positions.
The law contends that sort of work-related chit-chat must be done in front of the same taxpaying public these boards serve. Imagine that.
Specifically, McCutchen's suit stems from emails among board members between Oct. 8 and Oct. 13, 2016. Then, on Oct. 24, these members adopted the slate of officers they'd been busily organizing together on email.
The board and its attorney basically contend that sort of private discussion about board matters and leadership is legal because the members didn't actually hold meetings or take official action during their exchange.
My reading of the law is far different, according to what our highest court decided. The Supremes say the public needs to be privy to such decision-making seeing as how the school district is very much public and supported by public taxes and the voting public and all.
Daniel Shue, the 12th Judicial District Prosecutor, weighed in, writing board members to say he believed they'd violated the Freedom of Information Act. And he didn't want to see it happen again. "This letter should serve as a reminder that the public's right to know must remain inviolate," Shue said, adding that the law must be "strictly complied with at all times and under all circumstances."
As part of a settlement offer, McCutchen agreed to waive all fees in this case and asks only that the board admit wrongdoing and get training in Freedom of Information Act procedures. "My only interest here is public transparency," he said.
If that weren't enough, Bradshaw previously sued the same school board for allegedly failing to lawfully notify the public of a 2015 meeting.
Watchdog McCutchen said the board had given notice of a closed special meeting on June 23, 2015, specifically to evaluate its superintendent. But when one member reportedly was running late, the board convened instead what it called a "Committee of the Whole," without notice to the media or public.
During that meeting, a vote was taken not solely to discuss the superintendent, but to eliminate the historic Southside High School mascot (Johnny Reb) and its fight song ("Dixie"). Both had been used since the school opened more than 50 years earlier.
McCutchen argued that the action was illegal, adding that while the board might dispute that a final vote had been taken on its action at the meeting, a press release issued immediately after the meeting indicated otherwise.
"A strong believer in transparency, Ms. Bradshaw filed suit for violating the FOIA's open meeting provisions, alleging this closed meeting was held without legal notice," he explained.
That suit was filed in Sebastian County Circuit Court on Sept. 1, 2015. When the circuit court held there had been no violation, the case was appealed to the Supreme Court. It awaits a decision now. As in the other case, McCutchen agreed to waive his fees if the board will admit to violating the act.
Meanwhile, he said, the board's attorney already has billed the public board $70,000 in defending against this suit.
"Look, I'm not trying to profit from either suit in any way," he said. "In this case, the only notice given for this special board meeting stated it was deemed closed to discuss the superintendent. The excuse was the wording had been inartfully drafted," said McCutchen.
The board also contends its notice of the scheduled board meeting effectively put the media on notice that a closed meeting had been slated, which was sufficient to satisfy notice requirements for their altered "Committee of the Whole" meeting, he said.
"It should be noted the media was present only because Channel 5 News received two anonymous calls on the morning of that June 23 meeting that 'something may happen at the meeting with the Rebel mascot.'" said McCutchen.
McCutchen believes it's unlawful to hold a meeting featuring all but one member of a school board then change it a committee meeting unless notice is given in the manner required by law. "Public boards must be held fully accountable. I've always believed conduct rewarded is conduct repeated," McCutchen added.
McCutchen truly has become such a watchdog for transparency that he's now moving to ensure our state legislators will fall under provisions of the Freedom of Information Act. And pray tell, valued readers, why shouldn't they?
Mike Masterson's column appears regularly in the Arkansas Democrat-Gazette. Email him at [email protected]
Editorial on 01/17/2017