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HomeMy WebLinkAbout1990-01-11 MinutesMINUTES OF A SPECIAL MEETING OF THE CITY BOARD OF DIRECTORS A special meeting of the Fayetteville City Board of Directors was held on Thursday, January 11, 1990, at 5:30 p.m. in the Directors' Room of the City Administration Building at 113 West Mountain Street, Fayetteville, Arkansas. PRESENT: Mayor William Martin; Directors Michael Green, Russ Kelley, Ernest Lancaster, Paul Marinoni, Jr., Shell Spivey, and Fred Vorsanger; Assistant City Manager Scott Linebaugh, City Attorney Jerry Rose, City Clerk Sherry Thomas; members of the staff, press, and audience. • CALL TO ORDER The meeting was called to order by the Mayor, with seven Directors present. The Mayor stated the purpose of the special meeting was to consider the City's response to County Prosecuting Attorney Andrew Ziser to arrest Assistant City Manager Scott Linebaugh on Monday for alleged complaints of violations of the Freedom of Information Act (FOIA). The Mayor apologized to the public and audience for having to call the meeting at the last minute. The City had requested that Ziser wait for the regular Board meeting so that the public would be able to hear the full deliberations, but he refused. The Mayor turned the meeting over to Walter Niblock, Counsel for the City on'the incinerator disengagement project. Niblock addressed the Board stating there were serious problems the Board had to address in relation to the subpoena and how Linebaugh should respond to the subpoena. Ziser has stated that he will not back off of any of his demands in the subpoena. Niblock stated that the situation needed to be refocusedon •and gave an overview. Ziser had made a request for the City's attorneys to turn over their work product. An attorney cannot voluntarily give these papers up and will not. The news media has a perfectly legal right to request the information as they have done. The judge has as of yet only ruled on the procedural matters involved in this part of the case. There have been no precedents set and no ruling has been made on the facts of the case. The City has complied with all requests at this time. If the City were to request their attorneys to turn over their work product at this time, it would be like "shooting yourself in the foot". All of the attorneys research and strategies would be given away, and this simply would not be smart for the City. The City sought a protective order of these documents. Judge Adams of Bentonville 7 8 January 11, 1990 stated the request was premature and not all parties were before the court at that time. He closed the proceedings, and no definitive order has been issued to date. The City then sought declaratory judgment in Washington County Chancery Court where Brandon filed his suit. Brandon filed a motion to dismiss. The judge dismissed the case and refused to give any orders. The court felt that the City would have to wait and see if they were going to be sued criminally or civilly before they would have any legal remedy. Niblock stated he failed to understand that ruling then or now since that was basically the purpose of declaratory judgment. A suit can be filed under FOIA in a civil action from circuit court, and the matter has to be resolved in 7 days from the date of service which is set by statute. Or, if criminal charges are filed, it is a misdemeanor punishable for $200 fine, 30 days in jail or both or a sentence of some appropriate public service or all three. There was a meeting Monday, January 8 for more than one and one- half hours with Ziser, Steve Pflaum (the City's legal counsel), Linebaugh, Kitty Gay (a member of the Niblock Law firm), and himself. They discussed the matter in great length and stated the City wanted to cooperate in every way possible. The subpoena was served duces tecum on Linebaugh to produce the memos and documents requested by the Springdale News. Ziser did not specify what he wanted, rather he ordered Linebaugh to produce records that the Springdale News wanted. Niblock reminded Ziser that the City officials started this investigation and were willing to cooperate. Niblock's firm has three binders, and have made these available to the public and Ziser, of transcripts from the Northwest Arkansas Resource Recovery Authority bond meetings. Ziser refused them. All of the attorney work papers are still in his office. Niblock offered to let Ziser come to his office and review the work papers there, but Ziser refused that as well. No City office has been asked for information. Niblock also offered to go ahead, if the City could get the protective order, and make everything available to Ziser. The City had explored several ways to help Ziser so he would be able to look at the information he wanted or thought he wanted. Niblock also pointed out that he could file a civil action and in 7 days the whole thing would be concluded; or the attorney for the Springdale News could file the civil action. Niblock offered to be sued individually as he is the actual custodian of the records Ziser is seeking. Niblock stated he would only turn over the work papers if ordered to do so by the high court of the State of Arkansas. Ziser called Niblock and stated he would follow through with his letter, but felt like he had to stay with it or he would be giving up his only leverage --the threat of criminal prosecution, incarceration, and fines. Linebaugh has not been negligent in any way, and a finding of negligence is necessary before he could be found guilty. Niblock stated Ziser informed him that he would issue a warrant on Monday, January 15, for the arrest of Scott Linebaugh. January 11, 1990 Niblock stated that Ziser plans to file charges even if the subpoena is quashed. Also, Ziser was not interested in looking at any papers until they weremade available to the Springdale. News and the others that wanted to see them. Niblock stated this was a hard decision to come to grips with --the right of the City to give up due process of law or to have Linebaugh brought up on criminal charges. Mayor Martin asked who lodged the FOIA complaint in the letter dated January 3, 1990. Niblock stated it was the Springdale News. Martin asked if Ziser had been contacted after this by the Springdale News. Niblock stated he was not sure but thought he had been contacted. Martin further asked if there was any concurrence with the Attorney General of the State of Arkansas in the opinion that the papers should be turned over. Niblock stated that the Attorney General had overturned 11 years of opinions to render his opinion. There is currently no precedent in the State of Arkansas for any attorney to turn over his work product. This is one reason why it is important not to turn the papers over - to determine what the law will be. Kitty Gay stated that it was important for the City and the citizens as well. This case could set a precedent and every city in the state would be affected by the ruling of having to give up due process of law. She further stated it would not be fair for Robson to know what the City strategy is in the lawsuit and for the City to be unable to obtain his attorney's work papers and be on the same level ground for the purposes of litigation. Mayor Martin stated the lawsuit has to do with the payment of the bond indebtedness on the incinerator project. The City is not trying to hide information that would protect any individual from being found guilty of some wrongdoing. Gay stated the Mayor was correct. She also pointedout that all. the documents related to the bond issue are included in the binders already made available to Ziser. There are no documents of fact that are being requested by Ziser. She further` stated that the City is wanting to do what is right by its citizens: Martin stated the City has been advised by their attorneys that the City will have to repay the bonds. If the bonds were not repaid, it would be very detrimental to the City. The idea that the bonds would not have to be repaid is simply wishful thinking. The easiest thing would be to turn over the documents, but it would be detrimental to the City's side of the lawsuit. Kelley stated that there were no material facts that are in the documents that are being requested. Niblock confirmed this point. Green asked how the Washington County Bar Association felt about Ziser's actions. Io January 11, 1990 Niblock stated he had not poled the members, but when the question was brought up, they were appalled that the law may require work product to be turned over to third parties during litigation. It is basic to the attorney-client relationship that work product is protected. Gay stated that the City has not brought documents to the attorney's office for protection or in an attempt to hide anything. The only things the City is not wanting to turn over are the attorney work product --thought processes and research from law books. It is crucial that it be known that there are no papers being hidden at the attorneys' office. This is one reason why Ziser was invited to read the papers. Mayor Martin asked Scott Linebaugh if he was willing to be arrested. Linebaugh stated he was appalled that Ziser had put the City in such a predicament. He has other remedies available to him other than going after a government official. He stated he felt it was sad when a criminal warrant had to be issued on a government official when there are other alternatives available. No one wants a criminal record, and this comes down to a personal issue. Because of all of this, he has hired an attorney to represent himself and would look to him for a statement. Bill Wilson, attorney for Linebaugh, addressed the Board. He stated the City Board and the attorneys were not trying to keep any information from the public and media rather from opposing counsel. He has conferred with Linebaugh, and Linebaugh is willing to stand steady if the Board is fully behind him and will further support him by paying his attorney fees. Wilson stated he would charge the same as the Niblock firm plus reasonable expenses. He expressed his surprise that Ziser was using criminal rather than the civil remedies available to him. There is always a chance that the City could be found guilty and Linebaugh convicted. Vorsanger asked if the City had insurance to cover public liability for its officials and Board members. Niblock stated the City did have insurance, but it would not pay for defending a criminal act. Lancaster stated it has always been the City policy to pay any necessary attorney fees and stand behind its employees. Lancaster asked Niblock if he thought Ziser was using this issue as a political grandstand during an election year. Niblock stated that would be pure speculation on his part, so he could not really answer the question. Martin stated that the Board could go into executive session to discuss this matter since it relates to the continued employment January 11, 1990 of Linebaugh, but they intend to pursue the matter at this .public meeting. Again, Martin asked asked Linebaugh if he was willing to be arrested on Monday. Linebaugh stated he had thought about this a lot since the subpoena had been served. He stated it was a tough issue, and he was risking a criminal record. He has reviewed all of this thoroughly and feels that what he is being asked to do is totally wrong. He has come to the conclusion that he is willing to risk a criminal record if the Board members come out in full support of his actions. He feels the City has done everything possible to cooperate with Ziser. This issue could be setting a precedent for every city in the state. This case has threatened the City's right to due process and the privileged attorney-client relationship. Martin stated this was viewed as the lesser of two evils: (1) not wanting to violate the law but (2) not wanting to turn over privileged work papers and violate the rights of all the citizens of the City of Fayetteville. The City has not yet had its turn in court. Martin expressed his appreciation to Linebaugh for his willingness to protect the citizens. Vorsanger stated he understood that Ziser had been offered the ability to look at any of the attorney's papers as long as they stayed in the attorney's office. Nibiock confirmed this and stated' Ziser had refused the offer. Vorsanger further stated he had received a letter, and he assumed all the Board members had received one as well, from David Edmark, managing editor of the Springdale News, requesting the same information Ziser was seeking. Vorsanger stated he is getting sick and tired of discussing the incinerator project. ,He is frustrated and believes that 95% of the citizens of the City are tired of the 5% that are continuing to harass the City. These 5% of the citizens have already cost the taxpayers of the City $500,000 in defending this lawsuit. Marinoni asked if the preliminary phases of the case were coming to trial on January 16, 1990. He asked why Ziser would not wait until that date to take action on this issue. Nibiock stated Ziser said he would be giving up his powerful lever --the possible criminal prosecution of the acting city manager. the easy thing to do would be to turn the papers over, not in the best interest of the public to do so. He City and Board members were trying to get out of the mess the best way possible. If the City defaults on this would jeopardize the credit rating of the City. Spivey said but it was stated the incinerator the bonds, 11 • 12 January 11, 1990 He feels Ziser should come after the whole Board and not just Linebaugh. Green stated it was unfortunate timing and felt this might be a case of "judicial politics" during the election year. He stated the charges against the City were frivolous, premature, and irresponsible. He is having trouble voting to subject an employee to criminal charges. However, he is willing to accept these charges himself. He asked if it would be possible to be substituted for Linebaugh in the criminal proceedings. Niblock stated the statute is directed toward the custodian of the records. The Board is a member of a legislative body. The subpoena has to be addressed to the people in control of the documents. If Linebaugh takes the documents he has in his possession and responds to the subpoena, then Niblock would have to be served with an FOIA subpoena to obtain the documents he has in his possession. Niblock stated he was curious about how the Supreme Court would view this. He would be happy to take Linebaugh's place in the subpoena and would be willing to be arrested. He stated most lawyers would have to do what he is suggesting to be true to their profession. Gay stated it was extremely difficult to deal with a prosecutor that has threatened arrest and criminal prosecution. The Board has to make the decision in question, but the pressure is being exerted upon an employee rather than the Board itself. Green asked if there was any recourse after the criminal charges have been issued or any remedy for this action. Niblock stated the only remedy was an appeal of the case or through the election process when electing a prosecutor. Martin asked each director in turn if they would be willing to go to jail instead of Linebaugh. Each director stated they would be willing to take Linebaugh's place. Kelley asked if the Board dismissed the acting city manager, could the Board declare themselves custodians of the records and then be substituted for Linebaugh in the criminal proceedings. Niblock stated this would get Linebaugh off the hook if it worked. This would present an interesting question if the Board members were given a room in City Hall and designate that room the official filing place for the records and only have 7 keys to the room --one for each director. Spivey pointed out that the Board is not trying to prevent an arrest. Gay stated that Linebaugh did not have any of the records that was on the list of documents Ziser was demanding. She also pointed out 13 January 11, 1990 e that it is not Linebaugh's decision whether or not to turn over the records. Martin stated that the Board could only speculate on matters. He thinks Ziser really believes that he is correct. However, he is questioning Ziser's judgment. The leverage or extortion Ziser is using is an attempt to take the decision making process out of the hands of elected officials. Martin stated he supports the free enterprise and capital systems. He suggested it was time to pursue the unprecedented areas of the FOIA. He. felt Ziser was trying to take the decision making process out of the elected officials hands and put it in the private handsof the profit making newspaper. He feels through Ziser's actions, the popularly elected officials are being disenfranchised in this community. • Martin, seconded by Lancaster, made a motion to instruct Linebaugh to instruct the attorneys not to turn over the records the newspaper is requesting to Prosecutor Ziser. Green stated he saw several advantages to turning over the records: (1) avoiding criminal prosecution, (2) it would get the FOIA lawsuit behind the City, and (3) it would prove to the people that there is no conspiracy or cover-up going on at the City. However, the disadvantages are very obvious and outweigh the advantages.' He suggested amending the. motion to instruct Linebaugh to give out documents in his possession. Marinoni stated he understood that everything in the City's possession had already been turned over for public inspection. Gay stated Marinoni was correct. The documents being discussed are only those that are the attorney work papers that are not in the possession of the City. ' Martin stated in this regard, there was no need for an amendment to his motion. Lancaster stated the motion made by Martin covers exactly what Gay has stated. .. Green withdrew his amendment to the motion. • • Tim Webb, a Fayetteville resident, addressed the Board and applauded Linebaugh's steadfastness and stated he•was in favor of the Board's motion. Ruth Collier, a Fayetteville resident, addressed the Board in opposition to their decision. She stated the records from the Washington lawyers prior to the filing of the Robson case should• be turned over. She stated she wanted to know what the taxpayers had paid $300,000 for. 14 January 11, 1990 Charles Allison, a reporter from Springdale News, addressed the Board but he stated not in the capacity of a reporter. He stated the original FOIA request was made in September 1988 which was before the Robson suit was filed. He stated the City had at that point wanted to wait on an Attorney General's opinion. The opinion had stated the papers were public record. He feels the records should be turned over to Ziser and the public. Gay stated it was impossible to sort out the documents according to when they were prepared on the basis of before or after the Robson suit was filed. Also, the work product Ziser is seeking for the total time period is so interrelated, that it would not be feasible to separate. Kelley asked if the $300,000 in question pertaining to the bond issue had been spent on principle, interest, and other related expenses of the incinerator project. Linebaugh stated that was correct. Jim Rose, attorney for the Northwest Arkansas Resource Recovery Authority addressed the Board. He stated the tactics the City is using, and trying to protect their attorney work papers, are the same tactics he will be using on his client's behalf. He advised the Board that if the documents were released, his client would also be harmed. Bill Matthews addressed the Board and stated he applauded Linebaugh's action and employment of legal counsel. He stated he was fully in support of the Board's action. Spivey stated he would like the option to be pursued regarding substituting the Board members for Linebaugh in the criminal proceedings. Upon roll call, the motion to instruct Assistant City Manager Linebaugh not to instruct the City's attorneys to turn over the work papers, passed by a vote of 7-0. Martin, seconded by Lancaster, made a motion for the City to pay the legal expenses of Linebaugh in his defense of this action. Upon roll call, the motion passed by a vote of 7-0. ADJOURNMENT There being no further discussion, the meeting adjourned at 7:07 p.m.