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MIKE MASTERSON: Change the law?

Move afoot by Mike Masterson | April 8, 2018 at 4:30 a.m.

After being found in violation of the state's Freedom of Information Act, the city of Fort Smith wants to narrow the legal definition of what this cherished Act considers to be a meeting, something the state's Supreme Court repeatedly has defined since the law was enacted in 1967.

The city's attempt comes after Judge Michael Fitzhugh, in a summary judgment, found city board members violated the law by exchanging emails involving city business without giving legally required public notice.

City Attorney Jerry Canfield appealed Fitzhugh's decision to the Supreme Court, along with the whopping $172.50 in court fees awarded to the plaintiff Bruce Wade, who was represented by Fort Smith attorney Joey McCutchen (does this bulldog lawyer ever sleep?)

Canfield also is asking the Arkansas Freedom of Information Act Task Force, an advisory group to the state Legislature, to consider changing the law in defining what legally constitutes a meeting. Although ambiguous in its language, the city's overall intent is to narrow the existing definition of a "meeting" to allow informal meetings of fewer than a quorum to be considered legal even in situations where board members are discussing an city issue.

The request goes further, saying the current law violates the First Amendment rights of board members by preventing them from freely communicating with one another about city business via email. I can't see that hound huntin'. Public servants simply need to make the public they serve aware when they plan to discuss the public's business.

The city wants the Legislature to redefine and thereby constrict what legally constitutes a meeting under the Freedom of Information Act and basically throw the entire law that has served our state into enduring turmoil and confusion.

The way I understand the proposal, an entire board of any city or public body could communicate via email without giving public notice of their discussions, as long as they don't involve a third party. The public-notice provision would be enforced only during face-to-face meetings attended by a quorum of members. Canfield oddly refers to those as a "gathering," a term not included in the current law.

This attempt to narrow the law is unnecessary. The good news for the city attorney is it does provide an opportunity to increase the billable legal hours on Fort Smith taxpayers.

As if Judge Fitzhugh's ruling wasn't sufficient to make the point that elected officials can't conduct informal meetings about their business via emails, Circuit Judge Stephen Tabor issued a similar finding in a case McCutchen filed in 2017 against the Fort Smith School District. As with the city officials, some school board members also had been caught conducting business among themselves via email without giving public notice.

Is there something in the Fort Smith water supply that causes elected officials there to misunderstand the Freedom of Information Act of 1967? It intended to ensure all formal or informal meetings of governing bodies are conducted transparently (excepting executive personnel-related matters).

With Fort Smith ruled in violation of informal meetings that in the words of Judge Fitzhugh "clearly should have occurred in a public setting," then enjoined from conducting further business in that manner, why would the city appeal?

If that weren't flagrant enough, the case against the city's school district, which prosecuting attorney Dan Shue had the sheriff investigate, prompted Shue to inform the district that if they were again caught abusing the Freedom of Information Act, he'd consider such acts as a criminal offense.

I asked McCutchen, at the center of both cases, for his thoughts.

"Should the city of Fort Smith's logic apply, if there was ever a prohibition against secret meetings by two or three Board of Directors [members], which the act now states, that would be a violation of the Board of Directors' First Amendment rights and you would have no open-meeting provisions in any FOIA law," he said. "I'm fine with the board members having as many conversations about a certain item of public business as they like if they just give notice to the public of what they're doing.

"The Supreme Court has adequately defined what a meeting is over the last 50 years," he continued. "The city simply wants to narrow the definition of a meeting so they can evade it and do its thing in the cover of darkness."

Our forms of communication have changed dramatically since 1967. Common sense says we need adequate public notice when officials conduct the public's business via emails or otherwise. It does not mean appropriate changes should basically yank our law's teeth and leave its battered remains so ambiguous and confusing as to defy recognition, which I believe the Fort Smith proposal essentially would do.

Two Fort Smith judges have issued similar rulings on how this email question violates the law. The Supreme Court has been clear in describing public meetings and legal notification. The Legislature would be malfeasant if it knowingly attempted to mortally wound such a noble law that exists purely in the public interest to benefit those who violate it by preferring to do the public's business in the darkness.


Mike Masterson is a longtime Arkansas journalist. Email him at [email protected].

Editorial on 04/08/2018

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