Harris v. City of Fort Smith

• Decision Date: 04 November 2004
• Docket Number: No. 04-485.,04-485.
• Citation: 359 Ark. 355,197 S.W.3d 461
• Parties: David HARRIS, Appellant, v. CITY OF FORT SMITH, Arkansas, Appellee.
• Court: Arkansas Supreme Court

197 S.W.3d 461

359 Ark. 355

David HARRIS, Appellant, v. CITY OF FORT SMITH, Arkansas, Appellee.

No. 04-485.

Supreme Court of Arkansas.

November 4, 2004.

Hodson, Woods & Snively, LLP, by: Michael Hodson, Fayetteville, for appellant.

Friday, Eldredge & Clark, by: R. Christopher Lawson, Little Rock, for appellees.

Quattlebaum, Grooms, Tull & Burrow, by: John E. Tull, III and E.B. Chiles, IV, Little Rock, amicus curiae.

JIM HANNAH, Associate Justice.

David Harris appeals a decision of the Sebastian County Circuit Court granting the City of Fort Smith's motion for summary judgment. Harris asserts that the circuit court erred in finding that one-on-one discussions conducted by telephone or in person between the City Administrator Bill Harding and individual members of the City Board of Directors did not constitute Board action that falls under the Arkansas Freedom of Information Act (FOIA).¹ By contacting individual Board members, Harding obtained the approval of the entire Board to submit a bid in an auction to purchase real property. The circuit court found that under Arkansas law, the FOIA does not apply "to a chance meeting or even a planned meeting of any two members of the city council." The circuit court also noted that although the Board approved submission of the bid, the purchase could not be and was not finalized until it was publicly discussed and approved. We hold that under the facts of this case, contact of individual Board members by the City Administrator to obtain approval of action to be taken by the Board as a whole constituted an informal Board meeting subject to the FOIA.

This case was appealed to the court of appeals, which reversed the circuit court. Harris v. City of Fort Smith, 86 Ark.App. 20, 158 S.W.3d 733 (2004). A petition for review was granted by this court, and our jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(e).

Facts

Deputy City Administrator Ray Gosack learned that Bank One was going to sell at auction property formerly owned by the Fort Biscuit Company. Because Gosack believed that the Fort Biscuit property could be used for street construction to alleviate noise and congestion in downtown Fort Smith, he told Harding about the auction. A memorandum from Gosack to Harding noted the possibility of using part of the Fort Biscuit property to improve a downtown truck route. The memorandum also stated, "Acquiring this property through an auction creates unusual challenges for the city." Gosack then explained in his memorandum that normal procedure in seeking Board approval prior to acquisition meant that the information regarding the maximum bid the City could offer would be public information, making competitive bidding impossible.

The Fort Biscuit property was divided into tracts for purposes of the auction and was to be bid in two ways. Bids were to be taken on individual property tracts, and bids were to be taken on the property as a whole. If the bids on individual tracts added up to an amount higher than the highest bid on the entire property, the property would be sold by tracts.

Harding contacted each Board member either in person or by phone to gain approval to bid, as well as to gain approval of bid amounts. The Board approval required that the bids not exceed fifteen percent above the appraised value of the property. The City then had the property appraised. The City was successful in the April 18, 2003, auction in obtaining the tracts needed for the proposed road construction. The tracts were acquired at approximately two-thirds of the appraised value. On April 23, 2003, a "Special Meeting & Study Session" of the Board was held, and a resolution was passed approving the purchase.

Harris attended the "Special Meeting & Study Session" when the purchase of the land was approved. He then filed suit alleging that the one-on-one meetings between Harding and the Board members violated the FOIA. The circuit court found that the one-on-one meetings did not constitute a meeting subject to the FOIA, and further, that although the Board approved submission of the bid, the purchase was later publicly discussed before it was approved. The court of appeals reversed the circuit court holding that the serial conversations between Harding and the individual Board members about a matter involving a bid on the purchase of land constituted a "meeting" under the FOIA. The court of appeals remanded the case to the circuit court to enter an order that the FOIA was violated, to enter an injunction, and to award attorney's fees.

Both parties relied upon stipulated facts in their respective motions for summary judgment. According to the stipulation, Harding contacted Board members to determine "whether the Board would approve the purchase of the land at a subsequent meeting if Mr. Harding made a successful bid at the public auction." The parties also stipulated that the contact with Board members involved city business, that no notice was given to the public of these one-on-one meetings, and that the one-on-one meetings were held to avoid publicly disclosing the amount of the City's bids.

Standard of Review

When we grant a petition for review, we consider the matter as if the appeal had been originally filed in this court. Neill v. Nationwide Mut. Fire Ins., Co., 355 Ark. 474, 139 S.W.3d 484 (2003); BPS, Inc. v. Parker, 345 Ark. 381, 47 S.W.3d 858 (2001). A trial court may grant summary judgment only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Craighead Elec. Coop. Corp. v. Craighead County, 352 Ark. 76, 98 S.W.3d 414 (2003); Cole v. Laws, 349 Ark. 177, 76 S.W.3d 878 (2002). Once the moving party has established a prima facie case showing entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Craighead Elec., supra; Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998).

The FOIA

The FOIA is to be liberally interpreted to accomplish the purpose of promoting free access to public information. Johninson v. Stodola, 316 Ark. 423, 872 S.W.2d 374 (1994). Further, the FOIA is also to be liberally interpreted most favorably to the public interest of having public business performed in an open and public manner. Laman v. McCord, 245 Ark. 401, 404-05, 432 S.W.2d 753 (1968). "Statutes enacted for the public benefit should be interpreted most favorably to the public." Ark. Gazette Co. v. Pickens, 258 Ark. 69, 78, 522 S.W.2d 350 (1975) (quoting Broward County v. Doran, 224 So.2d 693, 699 (Fla.1969)).

Arkansas Code Annotated Section 25-19-106(a) (Repl.2002) provides in pertinent part that "all meetings, formal or informal, special or regular, of the governing bodies of all municipalities ... shall be public meetings." The term "public meetings" is defined in the FOIA:

"Public meetings" means the meetings of any bureau, commission, or agency of the state, or any political subdivision of the state, including municipalities and counties, boards of education, and all other boards, bureaus, commissions, or organizations in the State of Arkansas, except grand juries, supported wholly or in part by public funds or expending public funds. . . .

Ark.Code Ann. § 25-19-103(4) (Repl.2002). The issue before this court is whether the one-on-one meetings between Harding and the individual Board members, by which the Board approved bidding on the property, as well as bid amounts, constituted a Board meeting subject to the FOIA. An April 5, 2002, memo from Gosack to Harding discussed the unique challenges the Board faced in acquiring the property:

Acquisition of the Fort Biscuit property would be somewhat unusual. The property will be sold at an auction. We understand the bankruptcy trustee will take bids on each tract individually and on all tracts. The trustee will then determine which option produces the greatest amount of proceeds.

Acquiring this property through an auction creates some unusual challenges for the city.

• Normally, we seek formal board approval, including an offer price, before acquiring property. If we obtain formal board approval for acquisition of the Fort Biscuit property, the city won't be able to competitively bid for the property since our maximum offer would be public information.

• If the city bids, we'll also need to be prepared to bid for the purchase of all ____ tracts. The tracts not needed for the truck route project could be sold or used for another public purpose.

• If the city was the successful bidder on the project, the board would need to be prepared to publicly approve the acquisition shortly after the auction date. Backing out of the bid after the auction would be very difficult and unfair to the seller.

Our purpose now is to gauge the board's interest in pursuing acquisition of the Fort Biscuit property for realignment of the truck route. Given the number of tracts involved, the board might find it useful to visit the site.

If the board is interested, we'll need to have some appraisal work performed to determine how much the city should offer for the property. We would then informally review a maximum offer amount with the board. We'd want to have the board's concurrence on a maximum offer amount before participating in the auction.

The parties stipulated that the one-on-one meetings were held to conduct Board business. According to the Affidavit of Bill Harding attached as an exhibit to the City's motion for summary judgment:

I asked each Board member if he or she was comfortable with me bidding within this...