McCutchen v. City of Fort Smith

2012 Ark. 452, 425 S.W.3d 671, 41 Media L. Rep. (BNA) 1264, 2012 WL 6055930, 2012 Ark. LEXIS 485
CourtSupreme Court of Arkansas
DecidedDecember 6, 2012
DocketNo. 11-1086
StatusPublished
Cited by34 cases

This text of 2012 Ark. 452 (McCutchen v. City of Fort Smith) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCutchen v. City of Fort Smith, 2012 Ark. 452, 425 S.W.3d 671, 41 Media L. Rep. (BNA) 1264, 2012 WL 6055930, 2012 Ark. LEXIS 485 (Ark. 2012).

Opinion

JIM HANNAH, Chief Justice.

| Appellant Joey McCutchen appeals the Sebastian County Circuit Court’s order dismissing his complaint against appellees, City of Fort Smith (the “City”), Dennis Kelly, Gary Campbell, Andre Good, and Ken Pyle, in this case involving provisions of the Arkansas Freedom of Information Act (the “FOIA”), codified at Arkansas Code Annotated sections 25-19-101 to - 110 (Repl.2002 & Supp.2011). Appellant contends that the circuit court erred in concluding that Kelly did not violate the open-meetings provision of the FOIA when he presented to individual Board members, in advance of a study session, a memorandum expressing his opinion on a proposed ordinance that might come before the Board. Appellant claims that the circuit court’s ruling is inconsistent with this court’s decision in Harris v. City of Fort Smith, 359 Ark. 355, 197 S.W.3d 461 (2004). Appellees contend that this court should overrule the decision in Harris. In addition, both appellant and appellees 12challenge findings of fact and conclusions of law relating to the circuit court’s grant of declaratory relief in favor of appellees, in which it concluded that the FOIA’s open-meetings provision, Arkansas Code Annotated section 25-19-106, and the FOIA’s criminal provision, Arkansas Code Annotated section 25-19-104, are unconstitutional. We affirm in part and reverse in part.

The City, which operates with a city-administrator form of municipal government, is governed by a Board of Directors (the “Board”) consisting of seven directors. The Board meets in regular, study, and special meetings. Typically, at regular meetings, the Board considers three to seven regular items of business and ten to twenty-five consent-agenda items of business. Prior to each meeting, each member of the Board is provided an agenda and informational package of documents containing a briefing report for each item and a draft resolution or ordinance for each item. After delivery to the Board members, the information packets, as public documents, are made available to any member of the press or public who requests a copy. The documents are also available on the City’s website.

The Board employs a City Administrator, who performs various duties in operating the City. During his first year as City Administrator, Kelly1 evaluated existing City employment positions and personnel for the purpose of analyzing the City’s administrative organization. Kelly discovered that, while he did not have the authority to hire or fire department heads, the city-administrator form of government would permit the Board to |sassign that authority to him.

Kelly prepared a memorandum, draft ordinance, and other documents (collectively referred to as “memorandum”) proposing that the City Administrator be given the authority to hire or fire certain specified department heads, without Board approval. Kelly delivered the memorandum to five of the seven members of the Board in advance of a study session of the Board, at which the proposed ordinance would be discussed but not voted on. When delivering the memorandum, Kelly spoke with the Board members. Two members of the Board expressed to Kelly their preliminary support for the measure, and two members of the Board expressed their disfavor with the proposal.

The memorandum was discussed by the Board at a study session held in an open public meeting on May 12, 2009. Pursuant to the agenda procedures for the City, the request of two Board members was required to place an item on the agenda of a regular meeting for consideration by the Board. No motion was made for Kelly’s proposed ordinance to be placed on the agenda of the regular meeting.

Appellant filed suit against the City, and after amendment, he alleged that, by engaging in a series of private one-on-one meetings with Board members, in an attempt to influence the decisions of the Board, Kelly knowingly violated the open-meetings provision of the FOIA.2 He further alleged that the meetings between Kelly and the Board members were improper because they were held in a private forum, without notice being given to the |4public, and that members of the public were neither invited nor permitted to attend. Appellant requested that the circuit court enter declaratory relief, stating,

(1) private serial one-on-one meetings between the City Administrator and the Board members, which have the purpose or effect of influencing the decision making of the Board, are in violation of the FOIA; (2) that the FOIA prohibits the City Administrator from providing in advance to Board members information regarding proposed legislative matters coming before the Board by multiple contact with one or members at a time through personal meetings, telephone calls, or other communication in a manner prohibited by Harris v. City of Fort Smith, 359 Ark. 355, 197 S.W.3d 461 (2004); (3) that Harris v. City of Fort Smith remains valid and viable and is controlling regarding serial one-on-one meetings between the City Administrator and the Board; and (4) that the limitations set forth in Harris v. City of Fort Smith are constitutional, are presumed constitutional, and are a valid restriction upon the rights of the City under the First Amendment of the United States Constitution and the Arkansas Constitution.

Kelly, Board members Gary Campbell and Andre Good, and Ken Pyle, a citizen of Fort Smith and Executive Director of the Fort Smith Housing Authority, filed a motion to intervene, and the circuit court granted their motion. In an amended counterclaim for declaratory relief, the City and the Intervenors contended that the circuit court should enter an order declaring

(a) that, in spite of [decisions of the Arkansas Supreme Court] and numerous Attorney General opinions, the FOIA does not provide a definition of the word “meeting” so that the ordinary meaning requiring the presence of at least two members of the subject governing body is controlling thereby re-suiting in the declaration that the following topics are legislative topics for consideration by the Arkansas General Assembly and not the executive or judicial branches of government in Arkansas: (1) a meeting cannot occur in the absence of at least two members of the subject governing body present; (2) the number of members of a subject governing body which must be present in order for there to be a meeting; (3) whether citizen contact with one or more members of a subject governing body is a meeting; (4) whether administrative staff contact for informational purposes with one or more members of a governing body is a meeting; (5) whether staff contact for any purpose, including serving as a “straw man” at the request of one of more members of the subject governing body, is a meeting; (6) whether the receipt of information or | .^communication between one or more members of a board of directors is a meeting; (7) whether the receipt of information or communication between one or more members of a board of directors by a telephone is a meeting; and (8) whether the receipt of information and potential forms of legislative resolutions and ordinances by pre-meet-ing packets of information is a meeting.

The City and the Intervenors also sought declarations that, in the absence of clarification by Arkansas law by declaration of the type identified in (a) above,

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Cite This Page — Counsel Stack

Bluebook (online)
2012 Ark. 452, 425 S.W.3d 671, 41 Media L. Rep. (BNA) 1264, 2012 WL 6055930, 2012 Ark. LEXIS 485, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccutchen-v-city-of-fort-smith-ark-2012.