Sebastian County Circuit Judge Stephen Tabor issued a three-page order Tuesday giving a summary judgment in favor of plaintiffs June Bradshaw and Greg Murray of Fort Smith with reasoning why the email exchange was indeed a "meeting" and no prior notice was given to the public as stipulated by Arkansas law.
Fort Smith-based attorney Joey McCutchen represented the plaintiffs.
"As a strong believer in transparency in government, we are vindicated by this decision which upholds the public's right to open government," McCutchen said.
McCutchen noted he would not seek attorneys' fees and court costs if an appeal is not taken.
Deanie Mehl, president of the Fort Smith School Board, 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."
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, 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.
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.
In addition to issuing a permanent injunction prohibiting the school board from conducting public business in the future without first providing lawful notice as required by the Freedom of Information Act, Tabor ends his order by noting "the Court respects and appreciates the service of each person who serves on that body."
"Nevertheless, the violation must be acknowledged and steps taken to ensure no such violations occur in the future," he added.
'Conflicting' legal counsel
Despite early opinions by both Sebastian County Prosecuting Attorney Daniel Shue and Kristin Garner, staff attorney for the Arkansas School Board Association, that the email exchange was a violation, Llewellyn contended the email exchange between board members was "solely an announcement by board members Jeannie Cole of her decision not to be a candidate for Vice President of the Fort Smith School Board" followed by "comments" of other board members. Mehl called Llewellyn's advice "conflicting."
"If the exchange had been limited to simply the announcement of Ms. Cole and comments related to her decision, Defendants' position would be more tenable," Tabor wrote in the order. "However, that is not the case."
Even if the email exchange over a slate of officers was a meeting, Llewelyn contended there was no requirement to notify the general public.
"The Court disagrees," Tabor wrote. "Since the meeting in question was not a regular meeting, it must be characterized as a special meeting. A.C.A. 25-19-106 (b)(2) provides: 'In the event of emergency or special meetings, the person calling the meeting shall notify the representatives of the newspapers, radio stations, and television stations .. of the time, place, and date of the meeting. Notification shall be made at least two (2) hours before the meeting."
Further on, Tabor states "The undisputed facts also establish no notice was given as required."
According to Zena Featherston Marshall, Fort Smith Public School's director of communications and community partnerships, the Fort Smith School District has been billed $19,300 by the school board's attorney, Mitch Llewellyn, in relation to the email FOIA lawsuit. The previous FOIA violation case regarding the Rebel mascot and fight song cost the school district about $80,000 in legal fees with Llewellyn, Mehl said.
Tabor notes the email exchange began Oct. 11, 2016, in response to Cole's withdrawal from accepting the vice president position again. It was previously reported that it was Cole's second time to be looked over for rotation to the president's seat, but it was actually her first since she had been installed in 2015 as vice president when then-vice president Rusty Owen was defeated in 2015 for re-election to represent Zone 1.
According to her email, Cole's withdrawal for accepting consideration for the VP seat stems from a rotation policy that had been in place for many years under former Fort Smith Schools Superintendent Benny Gooden. Gooden retired unexpectedly in April 2016, about six months before the email exchanges. Mehl said she and a few other board members, including new members Richardson and Wade Gilkey, as well as veteran school board member Susan McFerran, had attended a "new member" state school board workshop where a new policy of keeping officers for three years was recommended.
School Board member Yvonne Keaton-Martin expressed her opinion in the email thread that she should be retained as secretary if that new policy of slower rotations was in accepted. Gilkey, however, proposed McFerran to serve as vice president and Bill Hanesworth as secretary to "integrate newer board members into the officer rotation, while maintaining consistency at the top during this time of transition."
"Because of all that was going on, the board made this recommendation to keep the officers as they were," Mehl said by phone Tuesday. "To be honest, I didn't want to be president again. But if the board wants me to, I'll do it."
Mehl announced Monday she would not be seeking re-election to the school board in the fall.
Looking ahead, Mehl said Doug Brubaker, the new Fort Smith Public Schools Superintendent, and the school system have "some exciting things coming forward."
©2017 Times Record (Fort Smith, Ark.) Distributed by Tribune Content Agency, LLC.
