Government In Secret E-Mail Shows Tontitown Officials Discuss City Business In Private Some Actions May Violate State Law, Experts Say

Last updated Saturday, April 7, 2007 10:32 PM CDT in News

By Bob Caudle
The Morning News

Related Photos

They were arguing over office space. Edgmon ordered Harrison to move his building inspection office from city hall to the police department. Edgmon wanted to convert the space into the mayor's office. Over the next two hours, Penzo and Hinshaw, along with the mayor and other city officials, discussed a variety of city business.

Unbeknownst to the group, Harrison taped the meeting. He later turned the tape over to the city recorder/treasurer.

According to the tape, city officials discussed:

* A resolution to change the 2007 budget.

* Disbanding the city's Water and Sewer Commission and replacing it with a Water and Sewer Committee that would be under city council control.

* Bringing in USI Consulting Engineers to answer to the council about water and sewer issues.

* Purchasing new software for the city's business office.

* Ways to add space to city hall.

* The mayor's conflicts with the Mark Dossett, Tontitown city attorney, and Mick Wagner, chairman of the Water and Sewer Commission.

On the tape, Penzo can be heard questioning whether the meeting is legal under the terms of the Arkansas Freedom of Information Act. Penzo asked if the press had been notified.

"If it hasn't, then we're in violation," Penzo says on the tape.

Goddard replies she told the "girls up front" to notify the media more than one councilman was present at city hall. No one called The Morning News about the impromptu meeting. The newspaper was notified of a special council session for the evening of Jan. 4.

John Tull, with the Little Rock law firm of Quattlebaum, Grooms, Tull and Burrow, the law firm used by the Arkansas Press Association, said there's not a bright-line rule about the number of aldermen and the circumstances under which they meet when determining if a meeting violates state law.

"If two councilmen meet at a ballgame or restaurant and happen to discuss something going on in the city, that's probably not a violation," Tull said. "If the situation is an intentional gathering, I think it's probably a violation. A lot depends on the intent of the meeting and how the two people came to be present."

The safest course is if two or more alderman are present, and something the board would be addressing comes up, they should just leave, Tull said.

Penzo said Tuesday he thought the city had complied with the Freedom of Information Act law.

"Tracy said the newspapers had been notified," Penzo said. "I thought that made it right. But I really couldn't say for sure (about paper notification) one way or the other."

E-mail between aldermen and other city officials reflect different versions of the Jan. 4 morning meeting.

Goddard in an e-mail dated March 13 wrote the public was not notified and at least two council members (Hinshaw and Penzo) along with the mayor and herself met at city hall to discuss city business.

Hinshaw's e-mail reflects two different versions of the Jan. 4 meeting.

In a Jan. 17 e-mail to council members Becky Alston, Ken Robertson, David Sbanotto, the mayor and others, Hinshaw writes Penzo came down to sign the signature card for the bank accounts. Hinshaw said she signed the same cards, but was there to help Edgmon move into his office.

In an e-mail dated March 13 to Scott McNair, Sbanotto and Alston, and others, Hinshaw wrote that "upon further reflection" she remembers the (Jan. 4 morning) meeting may not have violated the Freedom of Information Act. She explains Penzo was an alderman-elect and wasn't sworn into office until Jan. 9 and therefore the Freedom of Information Act was not violated.

Hinshaw also writes even though she and Penzo were at city hall to sign signature cards for bank accounts, they did not discuss city business, although the recording of the meeting reflects otherwise.

Queried as an outside authority on city government, Jeff Harper, Springdale city attorney, said Penzo was a "de facto alderman" because he was elected. It's the same as an alderman who didn't seek another term but had no opponent, Harper said, whether or not the alderman had an opponent.

Penzo defeated David Bolinger for the Ward 2, Position 1, seat in the November election.

"Like the mayor at Elm Springs in the last election," Harper said. "She didn't run, didn't have an opponent, but she just kept going as mayor."

An alderman "de facto" is a legal term, Harper said, meaning the alderman is in possession of an office and performs its duty under public acquiescence, whether sworn in or not.

The Arkansas Supreme Court and the Arkansas Court of Appeals support the "alderman de facto" point of law, Harper adds.

Hinshaw said Tuesday mistakes were made with the e-mail.

"I have to admit that being a new alderman, I have erred greatly," Hinshaw said. "I was told if two aldermen met, it would be subject to the Freedom of Information Act. E-mails were never mentioned as a meeting. We are encouraged by Mick (Wagner) and Tracy (Goddard) to e-mail everything."

Aldermen can e-mail Wagner and Goddard without violating the Freedom of Information Act. The open meeting requirement is triggered when two or more members of the same public board or commission meet. One alderman can meet with several city officials at once about city business that is likely to come before the council and not violate the law. Two aldermen together cannot.

Deleted From Agenda

Another possible infraction of the Freedom of Information Act occurred when council members called a special Sunday meeting Feb. 11 to discuss a proposed sports bar and to sort out problems between the mayor and department and administrative heads in the city.

The mayor didn't show, so the item regarding the problems with the mayor and other city officials was tabled until the next council meeting March 6. At that meeting, the item was pulled from the agenda by a unanimous vote of the council with no discussion.

There was no need for discussion at the March 6 meeting because council members had already communicated on the issue, according to the e-mail The Morning News received.

On Feb. 17, McNair e-mailed Hinshaw, Alston and Sbanotto: "I had a good meeting today with the mayor and feel like we have most all the issues worked out. I will get with each of you, but it will be my recommendation that the issue we tabled on Sunday be removed from the agenda. Since it will need to be on the actual agenda, I will make a motion to delete it off. I believe we collectively came up with a good answer and can move on with the city's business.

"Like I said, I will contact you personally, but wanted you to know the top-line positive result."

McNair on Tuesday said that, at the time, he was attempting to resolve what he feels are different factions within the city.

"No excuses," McNair said. "I was still learning. At that point in time, I'd been on the job three weeks."

Freedom To E-Mail?

The state's Attorney General issued two opinions, one in 1999 and another in 2006, dealing with the issue of e-mail and the Freedom of Information Act.

Opinion 1999-018 states an e-mail message is subject to disclosure as a public record.

Opinion 2005-166 states that, generally, the Freedom of Information Act is not violated if one member of a governing body e-mails another member. However, the opinion continues, a violation may nevertheless occur through a sequential or circular series of e-mail communications or under circumstances suggesting that the governing body was deliberating in secret.

Brenda Blagg, the Freedom of Information Act chairwoman for the Arkansas Press Women and one of the founding members of the Arkansas Freedom of Information Coalition, said the actions of Tontitown's council members appear clear.

"I think they violated the Freedom of Information Act several times," said Blagg, who is also a regional editor and columnist for The Morning News. "I don't think they'd want to go to court."

Limited Participation

City council members engaged in several round-robin discussions of city business, including asking the city attorney if there was a way to discuss city business behind closed doors.

In a Jan. 22 e-mail, Hinshaw asks the city attorney about holding a meeting between the city council, mayor and the water and sewer commission to discuss responsibilities and make sure everyone does the job they were hired to do.

"Can we hold a meeting with 'limited participation?'" Hinshaw writes.

Alderwoman Alston responds to Hinshaw's e-mail, saying, "I'm thinking that the executive session is not that great of an idea now. Meeting with everybody together ... is a great idea. Freedom of Information Act puts us in a pickle in this case. Wish we could just get together and talk it out like the reasonable adults that we are."

Alston said Tuesday the e-mail between aldermen was an attempt to settle issues before they became even more of a problem.

"Basically, we're learning the hard way on a lot of things," Alston said. "We were trying to do the right thing. Being an alderman has been an education on a lot of things."

Salary Decision

A Feb. 27 e-mail from Alston to Hinshaw details a change in the budget the council must vote on to hire an administrative assistant to the mayor.

Alston says she is communicating in place of McNair, because he is working. Alston writes to Hinshaw, "Scott said you all had discussed $25,000 (salary). That sounds reasonable to me."

Later that evening, McNair sends an e-mail to Hinshaw, Sbanotto and Alston, saying the $25K would come from the position formerly held by Mick Frus, a member of the planning department and GIS technician.

McNair ends the e-mail with, "If there are any other questions, let's discuss quickly before the CC (City Council) meeting."

Hinshaw responds to Alston, McNair and Sbanotto with instructions from the city attorney on how to make the motions at the City Council meeting and telling McNair, "You get to be the point man on this."

Meeting Attendance

Aldermen also discuss, via e-mail, an attendance policy for meetings.

McNair, in March, e-mailed Alston recommending if "we" do not get full attendance by the CC (city council) and mayor, that "we" then move to special meetings every Tuesday (or every day if needed) until "we" do have everyone present.

On March 13, after the e-mail had been forwarded among aldermen, Hinshaw responds to McNair's e-mail with copies to Alston, Sbanotto, and Penzo, saying, "Let's take this one step farther ... if any one person misses three of these meetings; whatever the reason; this person will be considered resigned, retired, quit, dismissed, etc. We'll get a full house this way. However, we need to include Mick, Tracy, Shane and Mark for sure plus anyone else that you feel needs to be spoken to or heard from."

McNair suggested the extra meetings not be paid. Hinshaw counters, "I feel that the actual meeting, the one that has full attendance, be a paid meeting. It may take hours and I doubt it will be a pleasant evening. We will have to pay Mark for each meeting regardless of if the meeting occurs or not as he has travel and preparation time."

McNair agrees with Hinshaw in a responding e-mail.

Soliciting Votes

Aldermen also discussed committee appointments and votes on ordinances via the Internet.

In a Jan. 29 e-mail, Hinshaw writes to Sbanotto and Alston "I hope that you have read the proposed ordinances that repeal the street and finance committee and divide this into two committees, one for street and one for finance. I also hope you recall that David, Becky and Myself are on the proposed Finance committee. I am assuming that as you both accepted positions on this committee that you will be voting for these ordinances and none too soon."

Hinshaw ends the e-mail with, "As you read the instructions that Mark Dossett has laid out for us in performing this task you will see that we need to submit an amended budget during or immediately after the Feb. CC (city council) meeting. I am asking for your immediate input on these questions and ask you to call me at ... after 7 p.m. any night this week."

Alston and Hinshaw continued e-mail back and forth, discussing transfers out of the street fund and how to set up budget reflecting the new committees.

Dossett's Warnings

Dossett sent an e-mail March 13 to Tontitown officials warning them about the Freedom of Information Act and admonishing them about the Jan. 4 morning meeting.

"If forced to defend it in court, I can make the argument that the Freedom of Information Act did not apply. Who knows how that would turn out. It's too close to call without litigating it. If asked ahead of time, I would say to assume it did apply, simply for the purpose of playing it 'safe.'"

On March 15, Dossett followed up with a letter to the mayor and council members, saying an Arkansas Attorney General's opinion states a meeting by phone to discuss city business is the same as a meeting in person.

E-mail, Dossett wrote, is a gray area that hasn't been litigated in Arkansas. However, courts in other states with Freedom of Information Act laws similar to Arkansas have found e-mail falls under the same scrutiny as phone calls.

Blagg, the state's expert on the Freedom of Information Act, compared discussions via e-mail to letters rather than phone calls.

"A phone call is kind of out there," Blagg said. "E-mails are something solid, like a letter."

Dossett repeatedly warned aldermen to keep e-mail to dissemination of information and not engage in round-robin discussions via the Internet.

The two most tenured aldermen, Penzo and Piazza, do not have e-mail accounts and don't intend to get them, they say. Penzo has been on the council since 1998 and Piazza since 1970.

"E-mails are good to keep in touch between the mayor, city attorney and recorder/treasurer," Piazza said. "But individuals going back-and-forth on the computer -- that's kid stuff. That's like passing notes back-and-forth in school."

Tull said it would be more convenient for media and governing boards alike if more elected officials felt like Piazza.

"It's a shame newspapers have to take steps that are costly to the newspaper just to make people obey the law," Tull said.

The Tontitown City Council on Tuesday passed a comprehensive policy, proposed by Dossett, on the use of e-mail.

The policy again states the council should use e-mail only for dissemination of information and should strive to abide by provisions of the Freedom of Information Act.

The policy also requires aldermen to forward e-mail to the recorder/treasurer's office, which will maintain a hard copy "reading file" of the e-mail for public viewing.

Reader Comments (64 comment(s))

*Member ID:
*Password:
	Forgot Your Password?

Not already registered?