The attorney for the Fort Smith School District has filed a motion to dismiss a lawsuit filed by local school board critic Joey McCutchen concerning recent violations of the Freedom of Information Act stating that the “complaint fails to state facts upon which relief can be granted”. FSSD Attorney James Llewellyn filed the motion for dismissal in December 16. The lawsuit stemmed from email discussions of the state of school board candidates that has been determined by Sebastian County prosecutor Daniel Shue to be a violation of the state FOIA laws.

McCutchen says the motion for dismissal is ludicrous. “(Fort Smith school board president) Deannie Mehl admitted in a local newspaper that she had consulted Arkansas School Board Association Kristen Garner and was told the board had violated FOIA” said McCutchen. “She even said they will never do it again. Then here comes a motion to dismiss listing all these reasons that their actions didn’t violate the FOIA.”

“They can’t have it both ways,” said McCutchen. “We expected them to file an answer. But they are essentially just trying to deny what they have already admitted and I really don’t understand the reasoning.” McCutchen said the criticism leveled towards him is that these “unnecessary” lawsuits are costing the school board funds paid to the district’s legal representative, but “yet here they are filing ridiculous motions when all they had to do is consent to the original filing.”

McCutchen said the original complaint seeks that “the fact finder declares that the emails of October 8 through 14 constituted a meeting which was not public and for which no notice was given; that the Court enjoin the Defendants from conducting business out of the public view through private emails” as well as “costs, attorney fees and for such other relief as is just and proper”.

“I’m not seeking monetary damages, asking that anyone be arrested and fined or trying to have anyone removed from the board,” said McCutchen. “I just want a judge’s decree that they violated the FOIA laws.”

“The facts are not in question that emails passed between members of the board as well as interim superintendent Gordon Floyd and at least two other district employees in the Fall discussing the proposed slate of school board officers,” said McCutchen. The seven-page motion to dismiss filed by Llewellyn says the emails in question “are discoverable under the Freedom of Information Act and were furnished when requested”. “They certainly are discoverable, but they were only furnished after the fact when the board was forced into transparency,” said McCutchen. “So, they need to make up their minds. Either they violated the FOIA as they have admitted or they didn’t violate FOIA as they are contending now.”

“The way I read the motion to dismiss the gist of their argument is that no actual vote was taken in the emails,” said McCutchen. “But every school board member involved in the email chain was in total agreement of the slate of officers. So how is that not a violation?”


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