The Fort Smith School Board decided Thursday to make changes to a settlement offer concerning a Freedom of Information Act (FOIA) lawsuit filed against the board and school district. If the plaintiff accepts the changes, the lawsuit will be resolved.
Fort Smith attorney Joey McCutchen filed the lawsuit on behalf of plaintiff June Bradshaw concerning October 2016 emails in which the board members discussed possible slates of officers. It is one of two ongoing FOIA lawsuits McCutchen has filed. Sebastian County Prosecuting Attorney Dan Shue issued a letter to the board members Nov. 8, 2016, stating that he found them in violation of FOIA. Sebastian County Circuit Judge Stephen Tabor denied the board’s request to dismiss the lawsuit Jan. 23.
The board deleted Item 2 of the offer that states, “In the emails, the School Board members commented on proposed slates of officers and how long the terms of office should be. One of the emails stated that the members had apparently agreed upon a tentative slate of officers to be voted on at the next meeting.”
President Deanie Mehl said this refers to an email she sent that states, “Based on the comments made last night, the tentative slate of officers appears to be as follows,” after which it states Mehl as president, Susan McFerran as vice president and Yvonne Keaton-Martin as secretary.
“I don’t think anyone agreed to that slate,” Mehl said. “It was just an observation.”
Mehl said she disagreed with the part that states they agreed on the slate.
“I don’t think we agreed. No one responded to that,” Mehl said.
Board member Talicia Richardson responded to the email with, “As the newest member, I am in support of continuity, as well as experience, with our officers during this very important time. Personally speaking, the knowledge they possess in their role and parliamentarian procedures will allow other with less than 2 years of experience in a school board role to become properly trained and accumulated,” according to the email thread.
Then, board member Wade Gilkey responded with, “I agree with the proposed slate of officers,” according to the email thread.
Richardson said that her problem with Item 2 was that it included everyone and that in the email that she sent, she did not say anything about terms or slating of officers.
The board also deleted a section that states, “Counsel for Plaintiff shall file a motion for attorney’s fees …”
“I think the idea of the plaintiff suddenly wanting fees when he was claiming for a year and a half that he’s doing it pro bono — I think that’s disingenuous,” Mehl said.
McCutchen said over the phone Thursday that he is not seeking attorney’s fees for the first FOIA lawsuit — which began in July 2015 and is a separate lawsuit apart from the one the board met Thursday to discuss. The settlement offer for the lawsuit the board discussed Thursday was filed over October 2016 emails.
The board also deleted a part that states, “… the Court concludes that the emails among School Board members discussing a potential slate of officers did constitute a ‘meeting’ which, since it was conducted without notice having been given to the public, constitutes a violation of FOIA.”
The board agreed on other parts of the settlement offer, including that the board will have an educational seminar on FOIA.
Mehl said her personal attorney Mark Moll — not the district attorney Mitch Llewellyn — developed the offer. She told the Times Record after the meeting that she is paying Moll with her personal money.
Mehl and McFerran were deposed Feb. 13.
“After our depositions, he met with the plaintiff and her attorney and worked on this in a way to put this to rest so we could just move on,” Mehl said.
McCutchen said over the phone Thursday that Moll approached him about the offer and that the board’s decision to reject language that Moll drew up is “bizarre.”
“How do you reject your own proposed order?” he said.
Llewellyn said that a trial date is set for May 10 and recommended that the board leave a decision up to a judge.
Mehl, Secretary Bill Hanesworth, Gilkey, Richardson and board member Jeannie Cole voted in favor of accepting the offer with changes. McFerran voted against it, and Keaton-Martin abstained from voting.
Summary of the emails
An Oct. 8 email from Cole began with, “Since we must vote on the 2016-17 officers at our October meeting, I wanted to give you notice that I prefer not to accept the Vice Presidency for an additional year. I was taken aback at the committee meeting when this was proposed, so I was not prepared to voice or defend my position.”
Mehl responded by asking the members to suggest a new slate of officers. From there, Wade Gilkey proposed Mehl as president, McFerran as vice president and Bill Hanesworth as secretary.
McFerran responded with “ASBA (Arkansas School Board Association) recommends that officers stay in place for 3 years. I, too, am sorry that Jeannie has chosen not to serve as VP. I’m happy to serve in that capacity if that’s what the board would like for 2016-2017.”
Keaton-Martin pointed out that if if that’s true, then she should serve as secretary for another year. Hanesworth responded he would be OK with Keaton-Martin remaining secretary.
Mehl wrote that the tentative slate of officers appeared to be Mehl as president, McFerran as vice president and Keaton-Martin as secretary.
Talicia Richardson responded with, “As the newest member, I am in support of continuity, as well as experience, with our officers during this very important time. Personally speaking, the knowledge they possess in their role and parliamentarian procedures will allow other with less than 2 years of experience in a school board role to become properly trained and accumulated.”
Gilkey responded by stating that he agreed with the new slate of officers.