CITY OF FORT SMITH, a Municipal Corporation; Keith Lau, in His Official Capacity as a City Director of the City of Fort Smith; Mike Lorenz, in His Official Capacity as a City Director of the City of Fort Smith; and Andre Good, in His Official Capacity as a City Director of the City of Fort Smith, Appellants
Bruce WADE, Appellee
Rehearing Denied August 1, 2019
FROM THE SEBASTIAN COUNTY CIRCUIT COURT [NO. 66FCV-17-657],
HONORABLE J. MICHAEL FITZHUGH, JUDGE
Woods, PLLC, Fort Smith, by: Jerry L. Canfield and Wyman R.
Wade, Jr., for appellants.
& Sexton, Fort Smith, by: Joey McCutchen, for appellee.
Hudson Goodson, Associate Justice
Appellants City of Fort Smith and city directors Keith Lau,
Mike Lorenz, and Andre Good (the City) appeal the circuit
courts order granting appellee Bruce Wades 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.
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 Smiths
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.
meeting was scheduled for May 22, 2017, to consider Clarks
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
Geffkens 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."
30, 2017 Geffken sent all the directors an email outlining
four possible options in light of the CSCs refusal to change
the rules: (1) do nothing, (2) pass a non-binding resolution
showing the boards 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 CSCs 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.
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.
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.
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
Geffkens email constituted an additional FOIA violation.
parties filed cross-motions for summary judgment. On January
4, 2018, the circuit court granted Wades motion. The City
filed its notice of appeal on January 30. The court allowed
Wade to file a motion for attorneys 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.
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, 573 S.W.3d 533.
Email as a ...