Fort Smith sued over efforts to avoid board review of legal billings

story by Ryan Saylor

A lawsuit filed Tuesday (July 1) is yet another twist in the question over legal billings from the Daily and Woods Law Firm to the city of Fort Smith.

The lawsuit — filed by Fort Smith resident Jack Swink against City Clerk Sherri Gard, City Directors Mike Lorenz, George Catsavis, Keith Lau, Vice Mayor Kevin Settle and the city of Fort Smith — alleges that recent attempts to remove a set of resolutions from Fort Smith Board of Directors meeting agendas was in violation of the Arkansas Freedom of Information Act.

The resolutions in question were removed most recently on Thursday (June 26) and, if passed, would have directed the city to hire an independent auditor to audit legal billings and also establish a committee to determine whether or not the city should continue with contracted legal services or hire in-house counsel.

City Director Philip Merry had twice requested the items be placed on the agenda following allegations by attorney Matt Campbell on his Blue Hog Report blog that the city was being billed for services not performed by Daily and Woods and was being overbilled for other services.

In order to remove the items from Tuesday's agenda, City Director Mike Lorenz cited Section 2-31(4) of the Fort Smith municipal code in his request submitted at 11:04 p.m. on Wednesday, June 25, in an e-mail to Gard. The code allows an item to be removed from the agenda at the direction of four city directors. An e-mail from Gard dated Thursday at 8:19 a.m. shows she submitted Lorenz's request with the following request to all city directors.

"Such requires concurrence of four (4) directors; therefore, please respond to Director Lorenz's request either via response to this e-mail or call my office, 784-2207."

The lawsuit states that Gard's polling of the Board was a violation of the law.

"Indeed, the Arkansas Supreme Court has held that the polling of individual board members via telephone, rather than having a meeting to discuss an issue, violated the AFOIA (Arkansas Freedom of Information Act) because there was neither notice as required by the AFOIA nor the opportunity for the public and press to attend," the suit reads.

The suit notes the incident from Thursday, as well as a previous successful attempt on June 11 to remove the items from the agenda for the June 17 meeting.

At the Board of Directors meeting Tuesday evening, Swink's attorney Joey McCutchen said the law is clear, adding that city cannot use Gard to poll directors.

"As the city has been through on at least two different lawsuits, all the way up to the Supreme Court — the lawsuit that I filed, the lawsuit that (Fort Smith resident) David Harris filed — I fail to see how what the city is doing now is distinguishable from those two cases. That is a straw man, or a straw person if you would, is polling Board members and it's trying to circumvent the Arkansas Freedom of Information Act."

McCutchen added later: “I think it's disturbing that they continue to go down the same path thinking that they can use a straw man to get around our transparency laws. ... If they're not transparent, then they can continue to expect to get sued."

City Administrator Ray Gosack said he had not yet seen the lawsuit and would not comment, though he did say the city is acting in a transparent fashion.

"It's a procedure that's been in place for a number of years in Fort Smith and it's been used approximately seven times in the last two years and times before that. So it's a procedure that has been used in the past and no one's ever raised a question in the past about transparency or openness. You know, it's a certainly a procedure. … The Board has the ability the manage agenda preparation, as it should, for its meetings and that's part of the procedure."

Quoting an e-mail from City Communications Manager Tracy Winchell, the following are the previous dates and topics associated with ordinance use dating back to Jan. 22, 2013:
• March 5, 2013 groundwater wells related to Whirlpool TCE contamination;
• May 7, 2013 executive session (planning commission appointment);
• July 24, 2012 (study session) residential sanitation service item;
• November 20, 2012 animal control item;
• June 18, 2013 board of directors retreat location;
• February 26, 2013 (2 items) aquatic center & administration matter; and
• January 22, 2013 (study session) proposal to relocate city offices.

During the official's forum of the Board meeting, City Director Pam Weber did make a motion to introduce a repeal of the ordinance and was seconded by Merry. Mayor Sandy Sanders indicated that the item would be placed on the July 8 Board agenda. The item again came up during the town hall meeting after the regular Board meeting, where Position 7 Board candidate Sherry Toliver read a prepared statement in which she took the Board to task for using Section 2-31(4) to remove the items from the agenda.

"Our Board of Directors' top responsibility is guiding Fort Smith's economic development and sustaining our City's reputation as the regional economic leader of the future. The Board majority's duck-and-cover strategy of managing this situation is counterproductive and risks embarrassing our City in a statewide media debacle," her prepared statement read.

"Effective public relations has the potential to greatly reduce the amount of damage to our City. Addressing this situation publicly and modernizing business practices as needed will help restore trust in our elected officials and those we hire on behalf of the tax-paying citizens of Fort Smith," the statement continued. "With millions of dollars paid by the City to Daily & Woods Law Firm since 1968, Fort Smith taxpayers deserve no less. And all vendors should know that we closely watch our accounts payable."

McCutchen said he expects to quickly settle the lawsuit with the city without having to take the fight to higher courts.

"I'm probably going to meet with the city attorney early next week, but we would like to get this lawsuit done quickly, like within a matter of days, not months."


He said ultimately, it would be up to a circuit judge to decide whether the city violated the Freedom of Information Act.

Campbell, who attended Tuesday's Board meeting, said his belief is that the Board is moving counter to the will of the people.

“I mean, the response I've gotten has been 99% in favor of, 'Yeah, we need to look at these bills.' So, it's almost like the Board is doing whatever they want to do and then throwing up excuses after the fact. 'Oh, he's just trying to district from the lawsuits.' No, I found out about this stuff because of the lawsuits,” Campbell explained. “But I was blogging way before I represented these guys and I'll be doing it long after and it's not really trying to distract from anything. I'm just pointing out, oh, by the way, you guys are getting screwed over by your city attorney. It has nothing to do with the lawsuit."

Five Star Votes: 
Average: 4.5 (28 votes)


It's not Our money to Waste

So there have been two previous decisions saying they are not complying with the law, yet they keep violating the law. "It's a procedure that has been in place for years....." And confirmed by Winchell 7 times in 2012/2013. They were told in 2004 you couldn't do this and still kept doing it. THEY ARE WASTING TAXPAYER MONEY every time they are sued when they were already told it was wrong. When are we going to fire every one of them.

apples and rotten apples

In the David Harris case, the City Administrator conducted a serial meeting. In this situation, the city clerk received an agenda item request that was seconded and went through the proper motions, as spelled out by ordinance, to permit its inclusion. Nothing was done improperly. So if there was issue with the process, and not the people, why are four directors named? What is uncanny here is that the motion and its second were not conducted in a meeting environment either, transparent to the public. And yet, that segment of this situation -- the one that triggered it all off -- was excluded from the lawsuit. Which means, this is just an ugly piece of action going on, prompted by steeping rage, and probably has nothing to do with the FOIA at all. Could it be that the person who filed the lawsuit didn't want the other two directors deposed? hmmmmm. wonder why?

Wonder No Longer Anon

Why depose the 2 Directors who clearly are against higher taxes, against crony spending, and want more transparency from the city leaders? Settle, Lau, Lorenz, and Catsavis seem to go along to get along and its suspect that the deck was marked long before the hand was dealt. The relationship between Settle and Gosack has an odor and Settle seems to have some magical power of persuasion over Lau, Lorenz, and Catsavis while Good seems to be continually lost in the fog. No mystery there other that maybe some private arm bending was done in secret to kill an outside audit of city spending that has been needed for years. hmmmm back to you--

Jack and Phil went up the hill

But the lawsuit isn't about any of that. The lawsuit is about whether a serial meeting took place outside the public domain. This entire scenario was started by Phil and Pam outside the public domain. Case closed. In the pail of water is a stinking fish

Serial Or Cereal

Phil, Pam, and Jack appear to be protecting the average citizen from getting fleeced and the others are looking more like fruit loops in the city hall cereal bowl! Do we need more air fresheners at city hall to hide the odor of "stinking fish"? Call the Rabbi because something is not Kosher at this fish fry.

George fell down and broke his crown

Overbillers, overspenders, insiders, outside instigators, fat cats, stray dogs, do-gooders, muck rakers, for the people, for themselves. None of that matters. The challenge is to a longstanding ordinance. Naming only four of seven directors made it more only within that scope. One of the four I believe is a long time friend of the plaintiff. Do you sue a friend? Do you throw a friend under the bus? No. You talk and reason with friends. You first try to resolve your problems amicably.

They Fought The Law And The Law Won!

It seems that Gosack, Gard, Settle, Lau, Lorenz, and Catsavis may have knowingly broke the law so let the chips fall where they may. George stated publically that he is a long time friend of City Attorney Canfield and not sure if he claims to be a friend of Jack but the main point here is transparency and all 86,000 citizens of Fort Smith have been thrown under the bus by these people who failed to follow the rules of open meetings and transparency. Let Matt Campbell go forward and lets audit all of the spending practices of City Hall by an independent audit firm to bring peace of mind to all the taxpayers. Question have continually been raised about cronyism and overspending by this administration and the people deserve to know the truth about how their business is conducted by the elected and hired hands.

they didn't shoot the sheriff

actually, they followed the law down to the letter. The question is whether the law and the FOIA are in sync

In the last two cases why did they have to fight?

Why were they advised to? This Harris vs Swink scenario one person here apparently is so mesmerized with begs a bit closer examination of the debris. In the Harris case it was already over and what happened wasn't so bad, albeit a violation of the FOIA, that they couldn't just give him the details. Teach a citizen a lesson perhaps? (25k) In the FSPD case was there ever any doubt whatsoever they'd end up having to comply? (25k) Obviously for some reason, the city is strongly against auditing the law firm they use so unless the city would also have the clerk call directors and make absolutely sure they didn't forget to vote AGAINST an item the city wanted, (almost 2 weeks ahead of time?), it looks like a blatant attempt to stack the deck in it's favor rather than a normal procedure as it tries to paint the picture above. Either way it's not a public meeting and it's about a vote so will the city decide to fight again? ($$) How if we can't afford an audit?

Arrogance Of Power

We will do exactly what we want to do regardless of cost or legal consequences. why worry about cost because it isn't our money and if we get caught breaking the law, our friends at the legal office can bill more to the taxpayers while we poor mouth for more money to pay the cost of our mistakes. This attitude will continue to rear its ugly head until there are significant personal and legal penalties enforced on the individuals that breach the public trust.

the issue at hand

it's not whether the audit is or is not the right thing to do. it's not whether suing to make a point or suing to be mean is or is not the right thing to do. it's about an ordinance on the books that may or may not be the proper way to conduct city business.

Serious Breach of Conduct

Gard did the polling by phone and not in full view of the public so that's where they are saying the law was broken.

What money and power tends to do however.. absolutely guarantee itself that also in the future it has enough money and power in order to continue to control things. We have now found a major source of that in Ft Smith that has been able to exist virtually unnoticed by the general population. Why do you think they say Jerry Canfield, city attorney, rather than Jerry Canfield of Daily and Woods? Whose name is on his check? What are proposing here that might rectify all this? Ooops?

Does The Money Corrupt or

are the elected and hired hands corrupt who accept the power of money in their decision making process? Its my guess that all the money in the world will not tempt an honest person but a free meal will tempt the weak mind.

Ugly At Best

The Gosack Administration is mired in UGLY behavior of secretive agreements, lack of transparency with backroom deals that infringe on the public good while creating an environment of mistrust and doubt among the populace that these so called city directors are elected to represent. I am in favor of a full blown audit by outside accountants that are not tarnished by this gang of 4 who willfully voted to hide the true facts from the taxpayers. Get it done without delay or the people will hold you 4 accountable. Jack and Phil Merry have every right in the world to seek justice in the courts for the people of Fort Smith.

Complicated And Strange Liaisons

The City Attorney is paid very well by the citizens of the city to protect the interest of the people but seems to be only protecting the incompetent city leaders who are not protecting the interest of the people.


"In this situation, the city clerk received an agenda item request that was seconded and went through the proper motions, as spelled out by ordinance, to permit its inclusion." Not even remotely right. Try again.

All the directors fingers looked ok to me

Bearing in mind they simply don't call if they want to let the motion stand one might notice Merry asks at the wrong time and that's the way it is but when the situation might go the other way they want to make dang sure nobody is late. Something else is rather curious and may I refer you to Gossacks statement that the money for the audit would of course have to come from somewhere. They usually spend about $25,000 defending these FOIA cases...probably the same as an audit.

Yes But

the city attorneys are buddies of Ray and outside auditors may cook his goose along with some of the other geese! Fire up the grill and bring on the barbeque sauce


First of all you can depose and subpoena people not named in a lawsuit. It's not a problem so that conspiracy theory fails. Second of all despite the Lau assertions which is that those individual directors are named as a personal attack because someone didn't get their way is a failing argument as well. They got included because they are the ones that participated and gave their concurrence using the improper polling. Had they not responded then they would not be named in the suit. Being asked by the clerk was wrong but they completed the improper actions once they went along with it. Completely their fault because it was their actions.

Try to understand little 'a'

before you cut your finger trying to split that hair you're working on. You don't follow the rules, you open the door to problems but it's not you that decides when someone comes in.

I guess that if we overlook

I guess that if we overlook all of the bloated prices of city projects of late, the fast rising property taxes, the comfy relationships between the Mayor, board members and contractors, the blatant ignoring of state laws in handling city meetings, the incompetency of our police chief and the aggressive defending of daily and woods despite proof of over-billing we could forget about all of the problems of last year. I miss Ray Baker!

Looks like mass corruption!

I live in Northwest Arkansas not Fort Smith but geese what a mess. I hope the citizens of Fort Smith stand up and make them fix this. Sounds like a lot of them need to go. Remember these are your tax dollars being wasted and your tax dollars pay for these people to manipulate and hide things. I guess they do hate Matt Campbell getting in their business, as it appears it has been good to them to do city business in this manner.

Question of Legality

Is the City Attorney paid to be the personal attorney of the City Administrator and BOD or are the taxpayers paying the City Attorney to do what is best for the people of Fort Smith?

Long Overdue

Fort Smith citizens are long overdue an explanation of what appears to be "good old boy" corruption. The arrogance, contempt, and disrespect these individuals seem to be displaying toward the citizens who pay taxes, and their outrageous salaries, is incredible. Turn on the light, and see which way the cockroaches run. Well done Swink!!

Sherry Toliver

Don't you just love a woman who can look the tiger in the eye and tell the gang "not on my watch". Three cheers Miss Sherry!

A couple of comments

First, I would like to give jack a curt nod of respect. I've called him out many times about his rambling manifestos here about how he is all talk and no walk. He has stopped that argument from me for now. I hope that he continues to walk and defend his opinions with actions instead of just internet rants. Good job Jack. Hopefully the board might get the fact that people are watching them. Second, to the person who asked why we don't fire the board... Good question. All of the people who voted to take out the agenda item that people here have noted for years have a bit of aroma around them ran UNOPPOSED. No one stepped up to run against them.all of the new candidates this cycle are for Pam and Phillip's spots. So, until someone runs against them....who knows. Unless the city form petition gets done.

Too far gone

Politically, Fort Smith is beyond repair. The only solution left for each voter is to vote with their feet by leaving this God forsaken hole in the wall hideout for crooks. Leave before things get worse. Many people have already voted that way.


This is only the tip of the iceberg. Turn up the legal heat to melt down to the deeper wrongdoings of the good old boys' pawns on the BOD.