City of Fort Smith v. Wade

          APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT [NO. 66FCV-17-657] HONORABLE J. MICHAEL FITZHUGH, JUDGE

          Daily & Woods, PLLC, by: Jerry L. Canfield and Wyman R. Wade, Jr., for appellants.

          McCutchen & Sexton, by: Joey McCutchen, for appellee.

          COURTNEY HUDSON GOODSON, ASSOCIATE JUSTICE

         Appellants City of Fort Smith and city directors Keith Lau, Mike Lorenz, and Andre Good (the City) appeal the circuit court's order granting appellee Bruce Wade's motion for summary judgment and finding that the City violated the open-meeting provisions of the Arkansas Freedom of Information Act (FOIA) when three of the city directors and the city administrator exchanged emails relating to city business. For reversal, the City argues that (1) emails cannot constitute a meeting because neither the Arkansas General Assembly nor this court has ever expressly stated that a meeting can be constituted by email, and (2) even if email can in some cases constitute a meeting, the content of the emails here was merely background information provided in advance of subsequent public meetings. We reverse and remand.

         I. Factual Background

         On January 9, 2017, Fort Smith hired Nathaniel Clark as its police chief. Clark was given a mandate to diversify employment in the police department. Fort Smith has established a Civil Service Commission (CSC). Fort Smith's CSC rules require an applicant for sergeant to have served five years on the Fort Smith police force, with additional years of service being required for higher ranking appointments. Clark sought to change CSC rules to allow for appointment of external candidates to openings for the rank of sergeant and higher.

         A CSC meeting was scheduled for May 22, 2017, to consider Clark's proposed changes. Good sent a May 21, 2017 email to city administrator Carl Geffken and the city directors email group complaining that the Fraternal Order of Police was threatening a no-confidence vote in Clark, and that the chief, not the CSC, needed to make staffing decisions. Good also wrote that if the CSC considered the no-confidence vote, the CSC should be dissolved. The CSC did not adopt any rule changes at its May 22 meeting. Geffken sent a May 22 email to the board stating that the CSC chair was willing to consider "more narrow language to allow external applicants," but that he was not in favor of a "more restrictive policy." Good responded to Geffken's email agreeing that he was not in favor of a more restrictive policy, and Lorenz responded that he agreed "100% with you both!" The day after the CSC meeting, Good sent an email to Geffken sharing his notes and observations of the CSC meeting and stating his opinion that "it is in our best interest to dissolve our Civil Service Commission as quickly as possible."

         On May 30, 2017 Geffken sent all the directors an email outlining four possible options in light of the CSC's refusal to change the rules: (1) do nothing, (2) pass a non-binding resolution showing the board's support for external candidates, (3) increase the size of the CSC, or (4) dissolve the CSC. Lorenz responded and suggested that the second option would be a start, but he also wrote that he was not sure he understood the CSC's function and that he believed that the human-resources department could handle CSC issues. Good responded with a May 31 email stating that, essentially, the board of directors should do whatever was necessary to give Clark more freedom to hire external applicants. Good suggested possible dissolution of the CSC. The proposed rule changes were discussed at length at a regular board meeting on June 6, 2017. The board adopted a non-binding resolution to support the changes that Clark sought.

         On June 21, Wade filed a complaint against Fort Smith only alleging that the Fort Smith board of directors is bound by the open-meetings provisions of FOIA. Arkansas Code Annotated § 25-19-106 requires that notification of public meetings be given to certain people and entities, including those, like Wade, who request such notice. Wade alleged that the emails from May 21, through May 31, 2017, were "meetings" that violated the open-meeting provisions of FOIA.

         Wade's attorney proposed a settlement whereby an agreed order would be entered in which Fort Smith would concede that the May 21-31 emails violated FOIA, and the court would order that future informal meetings, including by email, would not occur without notice when one or more board members make a proposal for board action and either (1) that board member requests support, or (2) one or more board members express support.

         On August 9, Geffken emailed the proposed settlement to the board, and Lau emailed his opposition. An hour later, Good emailed his agreement with Lau. Two days later, Lorenz emailed his opposition. The proposed settlement was discussed at a September 12, 2017 public-study meeting, but it was not adopted. Wade amended his complaint to add Lau, Lorenz, and Good as defendants and argued that their responses to Geffken's email constituted an additional FOIA violation.

         The parties filed cross-motions for summary judgment. On January 4, 2018, the circuit court granted Wade's motion. The City filed its notice of appeal on January 30. The court allowed Wade to file a motion for attorney's fees and costs. Wade filed an amended bill of costs waiving all claims except for $172.50 for filing and summons fees, which the court granted. On February 26, the City filed a second notice of appeal.

         II. Standard of Review

         Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, responses to requests for admission, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Cannady v. St. Vincent Infirmary Med. Ctr., 2018 Ark. 35, 537 S.W.3d 259. On appeal, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party leave a material question of fact unanswered. Id. This court views the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. We review questions of law de novo. Miracle Kids Success Acad., Inc. v. Maurras, 2019 Ark. 146, ____ S.W.3d ____.

         III. Analysis

         A. Email as a Potential Meeting

         The City first argues that (1) neither the General Assembly nor this court has ever equated email with FOIA meetings, and (2) the constitutional infirmities created by the circuit court's declarations should be avoided by reversing the circuit court's order. Essentially, the City argues that because FOIA does not include language that a public meeting can be constituted by electronic ...