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Bradshaw v. Fort Smith School District

Court of Appeals of Arkansas, Division II

March 29, 2017



          McCutchen & Sexton-The Law Firm, by: Joey McCutehcn, for appellant.

          Thompson and Llewellyn, P.A., by: William P. Thompson and James M. Llewellyn, Jr., for appellees.

          LARRY D. VAUGHT, Judge

         Appellant June Bradshaw appeals the Sebastian County Circuit Court's dismissal of her Arkansas Freedom of Information Act (FOIA) claim against the Fort Smith School District (District) and the Fort Smith Public Schools Board of Education (Board). We find no error and affirm.

         It is undisputed that all relevant media outlets were provided timely notice that the Board would hold a meeting on June 23, 2015, at 5:30 p.m. and that they were subsequently provided a second notice that the Board would go into a closed session to evaluate the superintendent. Media were present at the meeting. Several news outlets attended the meeting. At 5:30 p.m., when the meeting was supposed to begin, five of the seven-school board members were present, and one member had phoned to say he was running late. While the five members who were present waited for the sixth member to arrive, they decided to hold a "Committee of the Whole" meeting to discuss the issue of whether to keep Southside High School's current mascot (the Rebel) and its fight song (Dixie).

         Because the Rebel mascot and the Dixie fight song had been a point of contention for years, and in response to the recent racially motivated church shooting in Charleston, South Carolina (and the subsequent national debate over the use of the confederate flag), the committee of the whole passed a motion in an open meeting to stop using both the Rebel mascot and the Dixie fight song. Since the action had been taken by a committee, rather than the full Board, it was not final; instead, it was in the form of a recommendation to the full Board. Following the committee's passage of the motion, the Board went into the originally scheduled closed meeting to evaluate the superintendent, after which it returned to the open meeting and unanimously voted to extend the superintendent's contract for a year.

         The evidence reveals that the District's communications director, Zena Featherston Marshall, then released somewhat misleading and contradictory statements about what had occurred. In an email to the media, which Marshall sent that evening, she stated that the committee of the whole had passed a motion to stop using the Rebel mascot and the Dixie fight song but did not specifically indicate that the motion would have to be approved by the full Board before going into effect. In fact, she said that the Board would work with the Southside High School community over the next year to name a new mascot and fight song, implying that the decision was final. However, in an email to staff, she stated that the motion had been passed by the committee and would be "presented to the [B]oard during the regularly scheduled meeting on July 27, 2015."

         The Board did not specifically take up the committee's recommendation at the July meeting. Instead, a motion was made and seconded that Southside High School was to immediately stop playing the Dixie fight song and replace the Rebel mascot the following school year. The Board then heard public comments on the issue, and approximately thirty-nine people spoke, including Bradshaw's attorney. After hearing from everyone who wished to speak on the matter, the Board passed the motion.

         Bradshaw, a "concerned citizen, " filed suit[1] alleging a violation of FOIA's open-meeting requirements, seeking declaratory and injunctive relief. Bradshaw then filed an amended complaint, and the court held a hearing within seven days as required under FOIA. Following the hearing, but before the court entered its written order dismissing the case, Bradshaw filed a second amended complaint. The court then entered its October 23, 2015 order, in which it made detailed findings and concluded that the first amended complaint, which was the operative document at the time of the hearing, failed to support a cause of action under FOIA and was frivolous. Bradshaw filed a timely notice of appeal, in which she abandoned all pending but unresolved claims.

         We employ the clearly-erroneous standard in reviewing a circuit court's findings of fact in a bench trial. Fairpark, LLC v. Healthcare Essentials, 2011 Ark.App. 146, at 7, 381 S.W.3d 852, 856 (citing Poff v. Peedin, 2010 Ark. 136, 366 S.W.3d 347). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, considering all the evidence, is left with the definite and firm conviction that a mistake has been committed. Helena-W. Helena Sch. Dist. v. Fluker, 371 Ark. 574, 268 S.W.3d 879 (2007). A circuit court's conclusions on questions of law are reviewed de novo and given no deference on appeal. Id. at 577, 268 S.W.3d at 882.

         The Arkansas Supreme Court has previously held that appellate courts must liberally interpret the FOIA "to accomplish its broad and laudable purpose that public business be performed in an open and public manner." Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, at 8-9, 402 S.W.3d 511, 515-16 (citing Fox v. Perroni, 358 Ark. 251, 188 S.W.3d 881 (2004)). The supreme court stated that "we broadly construe the FOIA in favor of disclosure."[2] Id., 402 S.W.3d at 515-16.

         Before addressing the merits of the case, we must first address whether the order from which Bradshaw appeals is a final, appealable order. We note that the order being appealed resolved only her first amended complaint, not her second amended complaint. However, we find that Bradshaw's statement in her notice of appeal that she abandoned all pending but unresolved claims was sufficient to render the October 23, 2015 order final and appealable. Ark. R. App. P.-Civ. 3; Ford Motor Co. v. Washington, 2012 Ark. 354, at 1.

         On the merits, Bradshaw argues that insufficient notice was provided for the committee meeting that took place prior to the closed executive session on June 23, 2015. The FOIA's ...

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