‘This was not a legitimate investigation’: School board sued for FOIA violations after district attorney warned them

The Mountain Home School Board was sued by Melissa Klinger of the Mountain Home Watchdogs for failing to comply with the Arkansas Freedom of Information Act’s public meeting provisions during the 2023 special election on a proposed millage increase.

During the 2023 election, text messages were exchanged between former Mountain Home Superintendent Dr. Jake Long and members of the school board about district matters involving Klinger and the observer.

The discovery of the text messages prompted Long to confess that he and school board members had been holding informal meetings through a text messaging group for nearly eight years. Long also claimed that during the eight years the group was active, board members regularly deleted their messages.

Several board members stated that they had been in discussions with the observer before Long’s confession.

Klinger’s lawsuit is being represented by attorneys Joey McCutchen and Stephen Napurano of Forth Smith. McCutchen is a co-founder of the Arkansas Transparency In Government group and is currently working to get Arkansas residents to pass an amendment enshrining FOIA in the state constitution.

McCutchen is known for taking local authorities to court for FOIA violations. In 2019, the attorney was involved in Fort Smith v. Wade, which went all the way to the Arkansas Supreme Court.

The lawsuit comes after Baxter County District Attorney David Ethredge declined to prosecute Long and school board members after acknowledging in a warning letter to the district last month that Long, and by extension the school board, had blatantly violated ARFOIA.

“It is disappointing that District Attorney David Ethredge focused his attention primarily on Superintendent Long, who is no longer with the district, rather than on the secret ballots of the elected members of the school board,” McCutchen said.

“It is also disappointing that Attorney General Ethredge has chosen not to file criminal charges for these blatant FOIA violations involving literally millions of taxpayer dollars. This type of leniency for blatant FOIA violations is common throughout the state and creates distrust in government. That is why we must sign FOIA petitions to add the FOIA Amendment to our Constitution and provide a civil penalty for violators.”

MHPS Superintendent Allyson Dewey responded to the lawsuit filing, saying, “It is my understanding that this situation was already addressed in Mr. Ethredge’s letter last month. I am not sure what this lawsuit is about, but I am confident that we will continue to serve our students, their families and the community.”

Klinger’s lawsuit was formally filed on May 31 and is awaiting a judge’s assignment. District Judge Andrew Bailey recused himself from the case on Monday.

The lawsuit, which centers on a series of text messages between Long and board members Lisa House, Daniel Smakal and Bob Chester, seeks an injunction declaring that the school board held an illegal meeting without public notice and that it should be prohibited from meeting in secret again. Klinger is also demanding that the school district pay her legal fees for the lawsuit.

If successful, the lawsuit would open up the possibility of harsher punishment for the Mountain Home School Board if it is caught again violating state open meeting laws.

The text messages mentioned in the lawsuit come from Klinger’s first FOIA discovery during last year’s election. In the lead-up to the election, Klinger and several other members of the public cast wide nets through Arkansas’ Freedom of Information Act to find details behind the board’s decision to make a second attempt to raise $50-60 million to demolish and rebuild a large portion of Mountain Home High School. The district’s first attempt failed by a handful of votes.

All three text discussions uncovered by Klinger focused on whether the school board should put a motion for a $2.25 million or $2.75 million tuition increase on the agenda at its next meeting to address the problems at Mountain Home’s struggling high school.

In his discussion with Lisa House and Daniel Smakal, Long revealed that there was currently a 3:3 split between board members before finally texting House that the board was 4:3 in favor of a 2.25 million vote.

State law prohibits a superintendent from polling members of a school board in hopes of learning the board’s orientation before an official vote is taken.

“…individual discussions in this case serve as a means of reaching board policy before the public meeting. I believe this is contrary to the spirit, if not the letter, of the FOIA. Although the Arkansas Supreme Court has not addressed this issue specifically, we know from its decision in Rehab HospitalServices Corp. v. Delta-Hills Health Systems Agency, Inc., 285 Ark. 397, 687 SW2d 840 (1985), that a ‘telephone poll’ can violate the FOIA if the appropriate safeguards are not in place,” wrote Attorney General Mark Pryor on April 14, 2000 (Ops.Ark.Atty.Gen. Apr. 14, 2000).

In his warning letter to the school district, Baxter County Attorney David Ethredge wrote, “It is clear that Superintendent Jake Long engaged in conduct designed to circumvent and thwart the express intent of ARFOIA. Superintendent Long created the non-public text communications to avoid public meetings on matters of great public interest. Although initiated by Long, the actions also affected the then-existing school board.”

A larger group of texts between Long and six board members was later published by the observerIn this text group, Long and board members discussed implementation of the LEARNS Act for the school district as well as other conversations surrounding the special millage election.

During a telephone conversation with the observer Yesterday afternoon, McCutchen said the lawsuit was filed to hold the school board accountable. The attorney also said Ethredge and the investigator failed in their job of uncovering the truth about the FOIA violations.

“There is a distrust of government in Mountain Home because there are no consequences,” McCutchen said. “They’re all in cahoots, from the district attorney down. The district attorney should have made a decision and filed charges in this case months ago, not the superintendent, who is now gone.”

“It’s easy to throw rocks at him because he’s no longer there. But I’m sure most of those school board members are still in the community, and that’s why this prosecutor isn’t going to bring charges. They still live there and are voters, and I can tell you they have their connections without ever having been to Mountain Home. I’m sure they go to the same clubs. The bottom line is they’re just going to keep going until there’s some kind of accountability.”

McCutchen also expressed serious concerns about the conduct of the Baxter County Sheriff’s Office’s investigation into Long and the school board, pointing out that investigators apparently did not even interview members of the school board during their investigation.

Only Klinger and the observer appear to have been questioned on this matter in the official probable cause affidavit.

McCutchen said he plans to take depositions from every board member who participated in the text group to find out the real reason for their FOIA violations.

“This was not a legitimate investigation,” McCutchen said. “As far as I can tell, they did not take statements from the school board members. And the question is, why not? Why was Melissa’s statement taken? Why was (the observer) statements recorded? Why were the perpetrators’ statements not recorded? How can you conduct an investigation if you don’t record the statements of the people involved?”

Asked about McCutchen’s allegations that Ethredge and the Baxter County Sheriff’s Office failed to conduct proper investigations, the prosecutor said, “His agenda is very different from my agenda. The ethical question is: Do I believe I can charge and convict someone? My job is not to do what makes people happy. My job is to meet the ethical obligation: ‘Do I believe I can charge and convict someone?'”

“It was investigated by good officials. It was investigated by the Baxter County Sheriff’s Office to avoid the appearance of impropriety. Scott Thrasher is a good official and he investigated this for a while. And I trust their work. But at the end of the day, I have to ethically consider whether I can convict somebody based on what is alleged or what I believe happened. That’s the question. Can’t I charge them? I can charge anyone. It doesn’t matter. I have that power. We didn’t believe that based on all the information we had. Law enforcement found out before I did and they felt the same way. So that was the reason there were no charges, because they didn’t believe we could convict somebody.”

It should be noted that Ethredge has held meetings with Klinger and the observer and was provided with the text messages uncovered at the time of the March 2023 special election. He was aware of the panel’s FOIA violations before BSCO began its investigation.

During the meetings, Ethredge advised Klinger to share her information with law enforcement so an investigation could be launched. According to the affidavit of probable cause, the BCSO did not contact Klinger until January of this year, about 10 months after Ethredge was presented with direct evidence that the panel had violated the FOIA law.

In response to Ethredge’s first question about whether the board should be prosecuted after presenting its evidence, Klinger declined.

When asked for comment on his avoidance of prosecution due to personal connections, Ethredge said, “I don’t associate with these people. I don’t belong to any club. I’m just a member of my church. I don’t know these people outside of their work. I’ve never spoken to them except for one of them who called me when this was going on. I wouldn’t talk to them because I don’t talk to people who are doing investigations.”