Sebastian County Circuit Judge Stephen Tabor ruled Tuesday that the Fort Smith School Board violated the Arkansas Freedom of Information Act last year when board members exchanged emails proposing and discussing the slate of board officers for the coming year.
Tabor said in a four-page order that board members did not intend to violate the act or deceive the public. He issued a permanent injunction against board members conducting school business by email in the future without first providing lawful notice as required by the act.
"The undisputed facts establish a meeting of the Fort Smith School Board took place in which public business was discussed, rationale was put forth and decisions were made," Tabor wrote. "The undisputed facts also establish that no notice was given as required."
School Board President Deanie Mehl said Tuesday that she was not surprised by the judge's ruling. She said from shortly after the emails came to light, she was aware that board members had erred in having the email discussion and said last year that the board would refrain from holding discussions by email.
She said she thought the lawsuit was unnecessary but that it dragged on because the board had received conflicting opinions from law experts about whether their actions violated the Freedom of Information Act.
Maybe the Fort Smith School Board needs to get some better "law experts".
 |
| SEBASTIAN COUNTY CIRCUIT JUDGE STEPHEN TABOR |
Tabor said in a four-page order that board members did not intend to violate the act or deceive the public. He issued a permanent injunction against board members conducting school business by email in the future without first providing lawful notice as required by the act.
"The undisputed facts establish a meeting of the Fort Smith School Board took place in which public business was discussed, rationale was put forth and decisions were made," Tabor wrote. "The undisputed facts also establish that no notice was given as required."
School Board President Deanie Mehl said Tuesday that she was not surprised by the judge's ruling. She said from shortly after the emails came to light, she was aware that board members had erred in having the email discussion and said last year that the board would refrain from holding discussions by email.
She said she thought the lawsuit was unnecessary but that it dragged on because the board had received conflicting opinions from law experts about whether their actions violated the Freedom of Information Act.
Maybe the Fort Smith School Board needs to get some better "law experts".
"I hope we have finally closed this chapter and can focus on things we need to do," she said.
The lawsuit was brought against the board by Fort Smith residents June Bradshaw and Greg Murray, through attorney Joey McCutchen. McCutchen said Tuesday that he felt vindication for citizens' rights to have the School Board's business conducted in public.
 |
| JOEY McCUTCHEN |
McCutchen said in a news release he would forgo seeking attorneys fees and court costs in litigating the lawsuit if the School Board agreed not to appeal Tabor's decision.Mehl said Tuesday that it had not been decided whether the school district would appeal the ruling. However, she said she would not be in favor of appealing the decision.
“Ever since the first Freedom of Information Act lawsuit, we have tried to be so careful of conducting business,” Mehl said by phone Tuesday. “It was an oversight, and I will take full responsibility for it, since I sent out the email.”
That first FOIA lawsuit Mehl referenced was one also filed by McCutchen, for Bradshaw, in regards to a June 2015 school board meeting that ended with a vote to change the Southside High School Rebel mascot and “Dixie” fight song. The change was a reaction in large part to a racially motivated church shooting in Charleston, S.C. The Arkansas Court of Appeals ruled in late March the school board did not violate FOIA with that meeting and upheld an October 2015 ruling by Sebastian County Circuit Judge James Cox that dismissed the lawsuit by Bradshaw.
Mehl said the email lawsuit “wasn’t necessary” because she and at least one other board member had already admitted fault in public through a Times Record article on the issue.
“I never understood why it was filed other than to frankly harass a couple of us on the board,” Mehl said. “That’s what’s frustrating to me. We’ve spent an inordinate amount of energy on something that was fait accompli.”
For an individual with a doctorate, Mehl is amazingly ignorant of the AFOIA and open meeting requirements.
In late December, a settlement offer was sent to the school district’s lawyer by McCutchen, but school board members said they were not aware of the offer because they were out of town for the holidays. The settlement offer from McCutchen required the school board to sign a consent judgment declaring that emails violated the Freedom of Information Act.
Talicia Richardson, the newest school board member elected last year, made a motion to reject the settlement offer and the issue was tabled by the board. At that meeting, however, all board members claimed that the email exchange was not intentionally deceiving and there was a need for more FOIA training.
Richardson is also employed by the City of Fort Smith as New Development Officer for the Fort Smith Housing Authority. Let's hope that FOI requests made to her at the city are not subjected to the same lack of knowledge about the Arkansas FOI Act.
The board is offered a one-hour course on Freedom of Information Act law, and the board received that additional FOIA training on March 6. Mehl said she felt that because the email exchange had been included in the board packet, it met FOIA standards.
“The record does not reflect, and the Court does not believe, that this violation was intentional or represents an attempt by the Fort Smith Public School Board to deceive the public,” Tabor wrote.
McCutchen said the facts were clear that board members violated the Freedom of Information Act. After McCutchen showed the emails to Prosecuting Attorney Dan Shue.
Shue wrote a letter to board members in November saying their exchange of emails violated the act.
 |
| DAN SHUE - SEBASTIAN COUNTY PROSECUTING ATTORNEY |
Tabor's order was a ruling on a motion for summary judgment that McCutchen submitted, arguing there were no facts in dispute in the lawsuit he filed last year and that Tabor should rule in Bradshaw's and Murray's favor as a matter of law. A hearing on the lawsuit had been scheduled for June 21.
The lawsuit centered on eight emails School Board members exchanged from October 8, 2016 to October 13, 2016 (posted above). It started with an email from board member Jeannie Cole, who wrote she would not accept the board's vice presidency for another year.
Other board members commented on Cole's announcement, expressed opinions and proposed alternate officer slates. The board voted on the proposed slate of officers at its next regular meeting.
Tabor wrote that the School Board characterized the email string as simply an announcement by Cole not to be a candidate for vice president. The board would have had a better argument against the lawsuit if that were the case, Tabor wrote, pointing to Mehl's email three days after Cole's that solicited proposals for a new slate of officers.
"Clearly, this goes beyond mere comment on Ms. Cole's announcement," Tabor wrote.
Tabor recounted in his ruling board member Wade Gilkey's proposal of a new slate of officers and his reasoning for the proposal, board member Susan McFerran writing that she wanted to serve as an officer, and Yvonne Keaton-Martin's wish to remain an officer.
Tabor also referred to Mehl's email of October 13th in which she recapped the new slate and concluded by saying "the chair" would welcome further comments. A reasonable interpretation was that a meeting was taking place, Tabor ruled.
Tabor also disagreed with the School Board's contention that even if the emails constituted a meeting, no notice was required. Characterizing the the email exchanges as a special meeting, the act required that notification be given to news organizations, Tabor wrote.
CLICK TO VIEW THE FULL COMPLAINT WITH EXHIBITS
For more information about this lawsuit check out stories published on Inside Fort Smith.