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Attorneys: Law Authorizes Polling City Directors On Agenda Items

Posted on Thursday, July 31, 2014    

Individually polling members of the Fort Smith Board of Directors regarding agenda items is authorized under state law, according to a court filing by City Attorney Jerry Canfield and local attorney Michael Redd.

Fort Smith City Clerk Sherri Gard individually polled Directors Keith Lau, George Catsavis and Kevin Settle after Ward 3 Director Mike Lorenz contacted her about his desire to remove items from the agendas for June 17 and July 1 directors’ meetings, in violation of the Arkansas Freedom of Information, according to a complaint filed July 1 in Sebastian County Circuit Court.

Attorney Joey McCutchen filed the complaint on behalf of Fort Smith resident Jack Swink.

Canfield and Redd, who’s representing Lau, jointly filed an answer to the complaint, saying it is agreed that Gard individually polled directors, but arguing Gard didn’t violate the FOIA because state law grants directors the authority to determine the process for setting meeting agendas.

On June 3, At-Large Director Philip Merry requested a discussion seeking a three-year audit of the city’s legal contract with the law firm Daily & Woods be placed on agenda for the June 10 study session. At-Large Director Pam Weber seconded the move, and the item was placed on the agenda.

The audit proposal and a proposal to create a commission to study outside versus in-house legal representation was then added to the June 17 regular meeting agenda, by Merry and Weber.

Lorenz initiated removing the item from the June 17 agenda, with support from Catsavis, Lau, Settle and Ward 2 Director Andre Good.

After individually polling directors and receiving four votes to remove the items from the agenda, they were removed, according to the lawsuit.

At the June 17 meeting, Merry and Weber asked the board to reconsider adding the issues to that evening’s agenda but were voted down 4-2. Because the resolutions were denied, they automatically were added to the July 1 agenda, city officials have said.

Again, Lorenz moved to have the items removed, and Gard individually polled directors and got votes from Catsavis, Lau and Settle along with Lorenz to remove the items, according to the complaint.

Granting any relief sought by Swink would adversely affect the board’s ability to place or remove items from its own agenda, in violation of free speech rights granted to citizens under the both the Arkansas and U.S. constitutions, according to Canfield’s and Redd’s answer.

Swink is asking the court to find the process used by defendants to remove the items from the June 17 and July 1 agendas violated the FOIA; issue an injunction prohibiting the defendants from removing items from an agenda in a manner that violates the FOIA; hold a hearing on the matter within seven days and award the plaintiff reasonable fees and costs, including attorney fees, according to the complaint.

The answer filed by Canfield and Redd also argues a FOIA lawsuit the city lost in 2004 speaks for itself and McCutchen’s summary of it to support his claim isn’t “fully accurate.”

Fort Smith resident David Harris filed that suit against the city in 2002, when former City Administrator Bill Harding individually polled directors on their position over the purchase of a piece of downtown property. In its opinion issued Nov. 4, 2004, the Arkansas Supreme Court held that the city could not circumvent the FOIA by using Harding as an intermediary to obtain a decision by the board of directors.No further court dates are yet scheduled regarding Swink’s complaint.