Sebastian County Circuit Court Judge Greg Magness ruled that the Fort Smith City Board did not violate the open-meetings provision of the Freedom of Information Act when the entire Board was privately polled by City Clerk Sherri Gard on whether to remove one tax proposal from the Board's agenda and retain another.
The two proposals relate to a new 0.75% Sales and Use Tax. The winning tax proposal that remained on the Board's agenda was later approved by the Board and will be on the ballot in a Special Election held on February 8, 2022.
McCutchen said, "We respectfully disagree with Judge Magness' ruling today and specifically believe that this case violates Harris v. The City of Fort Smith, which states that a city employee like Sherry Gard may not be used as a straw man to circumvent the open-meeting requirements of FOIA."
McCutchen added, "We do agree with Judge Magness when he said in the trial that there is nothing stopping city boards from listing ten potential ordinances within an agenda item and then having the Board members systematically vote to remove only the most favorable proposal. I believe that amounts to nothing more than political cherry-picking and is clearly substantive legislative action."
McCutchen also agrees with Judge Magness when he said that the City's policy of obtaining a vote from the entire Board to retain or remove proposals "...sounds like taking a poll..." Judge Magness asked City Attorney Jerry Canfield in the trial why it is a city policy to "poll" all directors concerning the removal of an agenda item if the municipal code states that only three directors have to agree with the one requesting the item be removed.
McCutchen also agrees with the Court's finding that there is some tension between the ability of a municipality to address its agenda while maintaining compliance with the Freedom of Information Act. Fort Smith has a local ordinance allowing the removal of a business item from a meeting agenda. According to McCutchen, neither the municipal code nor FOIA permits the Fort Smith Board of Directors to vote on individual sub-parts of an agenda item.
McCutchen said that he and co-counsel Stephen Napurano and Robert Steinbuch are evaluating appealing this decision and/or taking legislative action.
Finally, McCutchen said, "Bureaucratic processes should never trump the people's right to know. This is especially true since the final vote of the Board was to refer a ballot measure to the people which will cost taxpayers $150 million over ten years.
