An Arkansas appeals court ruled that a city board violated open meetings provisions when a city administrator individually polled city board members by telephone for authorization to purchase property. The board of directors and city administrator of Fort Smith, Ark., violated the open meetings provisions of the state’s Freedom of Information Act when it reached a decision about a land purchase via telephone instead of at a public meeting, the court ruled.

 

Decision-making by telephone ruled to be a meeting

The Reporters Committee for Freedom of the Press

FORT SMITH, Ark. (April 23, 2004) — The board of directors and city administrator of Fort Smith, Ark., violated the open meetings provisions of the state’s Freedom of Information Act when it reached a decision about a land purchase via telephone instead of at a public meeting, the Arkansas Court of Appeals ruled Wednesday.

Two years ago deputy city administrator Ray Gosack advised city administrator Bill Harding that a piece of private property useful to the city for a roadway project was about to be sold at auction. “If we obtain formal board approval for acquisition of the Fort Biscuit property, the city won’t be able to competitively bid for the property since our maximum offer would be public information,” Gosack wrote in a memo, according to court documents.

Gosack recommended informally seeking the board’s approval on a maximum bid amount before the auction with the board formally voting to approve the action after the property had been purchased.

Over the next several days, Harding polled the board members individually by telephone to gain their approval, and sent a memo to board members confirming their consensus. Harding successfully purchased the property at auction for two-thirds of its appraised value.

The board held a special session April 23 to formally approve the purchase. An attendant at the meeting, David Harris, argued that Harding and the board had violated the Arkansas Freedom of Information Act by meeting privately and without notice and he sued the board.

Judge J. Michael Fitzhugh of the Sebastian County Circuit in Fort Smith ruled that the one-on-one conversations with board members did not constitute a “meeting” under the act, and dismissed the suit. Harris appealed to the state Court of Appeals.

The board argued that requiring the city to disclose in an open meeting that it intends to bid on something, up to a specific price, would compromise its ability to be competitive.

However the state Court of Appeals reversed, holding that the telephone conversations were a “meeting” under the act.

“It is obvious that [the board’s] actions resulted in a consensus being reached on a given issue, thus rendering the formal meeting held before the public a mere charade,” Judge Wendell Griffen wrote. “By no reasonable construction can the FOIA be read to permit governmental decision-makers to engage in secret deal-making on the ground that they are saving money.”

The court remanded the case to the trial court to issue an injunction preventing the board from further violating the state FOI Act, and to award attorney’s fees to Harris. Harris waived his right to have the decision of the board invalidated as a result of the open meetings violation.

(Harris v. City of Fort Smith)c