Sexton’s full response to our questions

Fort Smith attorney Chip Sexton who is the chairman of the Fort Smith Civil Service Commission, was asked this week about an attempt to have him removed from that Commission by members of the Fort Smith Board of Directors.

His response, in an exclusive explanation given to Inside Fort Smith, is as follows:

“I have been an attorney for over 30 years and practice law with Attorney Joey McCutchen. For the past seven years, I have also served on the Fort Smith Civil Service Commission (“the Commission”). Every single action that I have taken on the Commission was taken because I believed it to be in the best interest of the citizens of Fort Smith. I am not an employee of the City of Fort Smith and serve on the Commission without compensation because I care about our community and about our fine police officers and firefighters. I fully support our Police Department, our Police Chief, our Fire Department, and our Fire Chief

Arkansas state law requires the Commission to establish “[t]he qualifications of each applicant for appointment to any position on the police or fire department.” On May 22, 2017, the Commission met to consider a proposed rule change that would change qualifications for supervisors in the Police Department. The change would have allowed hiring of persons as supervisory police officers who have no training in Arkansas law and no knowledge of Fort Smith’s geography or citizens. I believed the proposed change would create a public safety risk because of its failure to require training in Arkansas law or familiarity with Fort Smith’s geography prior to employment of command-level officers. While I did not support the proposed change, neither did any other member of the Commission and the proposal failed because there was no motion by any Commissioner to change the rule.

After that meeting, a City Director promptly suggested that the Commission overstepped its bounds by failing to adopt the proposed change. Then, on June 6, 2017, a resolution was adopted by the City Board of Directors asking the Commission to reconsider the proposed rule change. Based on the resolution, I immediately called another Commission meeting that was held on June 13, 2017 to consider the Board’s resolution. However, before the June 13 meeting, I learned that a City Director had indicated that I should recuse (even in the absence of a motion for recusal) because Joey McCutchen was representing the former City Sanitation Director. I was also keenly aware that two City Directors had suggested that the timing of a comment I made at the May 22 meeting was inappropriate. Although the timing of my comment was not inappropriate under the Commission’s rules and I did not have a conflict that warranted recusal (and even the City’s attorney did not believe that I had a conflict), I recused in order to avoid any controversy.

Either shortly before or shortly after the June 13, 2017 Civil Service Commission meeting, Joey McCutchen sent a Freedom of Information Act (“FOIA”) request to the City of Fort Smith. I believe the FOIA request was made because of Mr. McCutchen’s representation of the former City Sanitation Director but any Arkansas citizen who is not incarcerated may submit a FOIA request. I understand that Joey received certain documents in response to the FOIA request that included emails exchanged between two City Directors and which discussed: (i) the May 22 Commission meeting; (ii) the lack of support of two City Directors for a more restrictive external hiring policy than had been proposed; and (iii) abolishing the Civil Service Commission altogether. Mr. McCutchen subsequently filed a lawsuit on behalf of Fort Smith citizen Bruce Wade in which it is contended that these emails violate the open meeting provisions of FOIA. I am not involved in that lawsuit and stand nothing to gain or lose financially in the event of a win or a loss.

The Board of Directors has now been requested, by a motion made by Director Keith Lau and seconded by Director Mike Lorenz, to consider whether I should be removed entirely from the Civil Service Commission because of an alleged, but erroneous, belief that I have a conflict of interest due to Mr. Wade’s lawsuit filed by Mr. McCutchen. With all due respect, I note that in or around 2011 (at a time I served on the Commission) Joey McCutchen filed a FOIA lawsuit against the City—asserting a FOIA violation by certain City Directors and the City Administrator. At that time, there was no claim made that I had a conflict in serving on the Commission because of the lawsuit that Joey McCutchen had filed. So how is it that what was not a conflict in 2011 suddenly becomes a conflict in 2017 almost immediately after I failed to support a proposed rule change?

But what I really want to know is where is the conflict? I am not participating in the lawsuit brought on behalf of Mr. Wade. I will not benefit financially if the lawsuit is successful. The lawsuit only seeks to compel the City to comply with the Freedom of Information Act (if a violation has occurred) and money damages are not being sought. I am not the attorney for the Civil Service Commission because, by statute, the City Attorney serves in that capacity unless the Commission appoints a separate lawyer. I am not doing business with the City and neither is Mr. McCutchen (he is merely representing his client). I also note that all the documentation used in support of the lawsuit filed by Mr. McCutchen were public records under FOIA. And, most importantly, the lawsuit does not even concern the Civil Service Commission, but it targets alleged violations of FOIA by two City Directors. The outcome of the lawsuit will have no impact on the Civil Service Commission. Any claim that the lawsuit is about the Civil Service Commission is nothing more than a red-herring because, even though the Commission is discussed, the lawsuit filed by Mr. McCutchen is about alleged FOIA violations by two City Directors. So just where is the conflict?

It makes no sense that a lawsuit over which I have no control and which only seeks to require the City to follow the law (if there has been a violation) could be a conflict on my part. Doesn’t it make more sense—considering that the filing of the lawsuit itself is claimed to constitute a conflict on my part—that the two City Directors accused of impropriety in the lawsuit filed by Mr. McCutchen would have a more significant conflict of interest in voting on the issue of whether I should be removed?

Director Lau has also called for the matter to be considered in an executive session. I believe that an executive session is inappropriate and prohibited by the open meeting requirements of FOIA. Ark. Code Ann. Section 25-19-106(c)(1), which is part of FOIA, requires all meetings of public bodies must be public meetings “[e]xcept as otherwise specifically provided by law . . ..” The statute addresses when an executive session may be used:

“Executive sessions will be permitted only for the purpose of considering employment, appointment, promotion, demotion, disciplining, or resignation of any public officer or employee. The specific purpose of the executive session shall be announced in public before going into executive session.” [emphasis added]

The removal of a Civil Service Commissioner is clearly not the consideration of “employment, appointment [or] promotion.” While it might be claimed to be a demotion, “demotion” means to reduce to a lower rank or position. If demoted, I would remain on the Commission but at a lower rank or position. A demotion is not sought but rather completely removing me from the Commission is what Directors Lau and Lorenz have proposed.

Similarly, removing me from the Commission is not a matter involving “disciplining . . . a public officer or employee.” “Discipline” means to train someone to act in accordance with required standards or rules. My removal is sought based on a claim that I have a conflict because of a lawsuit filed by Mr. McCutchen in which I am not involved. It is not based on any action or inaction on my part. Because the motion seeks my removal based on what someone else has done and not based on my actions or omissions, the request to remove me from the Commission cannot be considered to be “discipline” or “disciplining” of me as that term is used in FOIA. And, lastly, I am not resigning from the Civil Service Commission.”

For these reasons, the meeting in which my removal is sought is not a meeting that can be held secretly in an executive session. It does not fall within the well-defined purposes for which an executive session may be used. And, even if it did, I fully waive any requirement to have the meeting held in executive session. I would ask that all members of the media and the public be allowed access to the meeting, as both the media and the public have the right to see exactly what action the Board of Directors is taking with regard to the request of Directors Lau and Lorenz to remove me from the Commission.