Special prosecutor will not proceed with suit against ES aldermen

Monday, September 22, 2008

EUREKA SPRINGS -- A special prosecutor has declined to prosecute three members of the city council for an apparent violation of the Arkansas Freedom of Information Act.

Special Prosecutor H.G. Foster agreed that three aldermen violated the provisions of the FOIA, but he felt he would have problems getting a conviction because the defendants could claim a "mistake of law and advice of counsel." 

A complaint was filed with the Eureka Springs Police Department in April, alleging that Kathy Harrison, Eric Scheunemann, and Rae Hahn violated the FOIA by initiating a lawsuit away from the council table.

The aldermen filed suit to force Mayor Dani Joy to allow Pat Matsukis to take a seat at the council table. After the resignation of Charlotte Buchanan in November, Harrison, Scheunemann, and Hahn voted Matsukis as a replacement. Joy vetoed their selection, and the three aldermen could not overturn the veto.

Those three aldermen, along with Ernst Schrader and Matsukis, filed a suit which claimed the mayor could not veto an "election." Joy and her attorneys cited several opinions by Arkansas Attorneys General which indicated that a mayor can veto any action of a city council.

That suit has not yet been decided. Circuit Judge Alan Epley recused, and Special Circuit Judge John Lineberger has received pleadings from both sides, and is expected to make a decision soon.

The FOIA complaint arose when the three aldermen became party to the lawsuit. Although they claimed they were acting as individuals, they only sought relief in the lawsuit as aldermen.

Carroll County News initiated a request for documents surrounding the lawsuit under the FOIA. The aldermen, under advice of their attorney, did not produce any documents regarding their actions in filing the lawsuit.

Carroll County Prosecuting Attorney Tony Rogers recused, and Foster was appointed as special prosecutor. Foster had previously served as special prosecutor concerning other questions about the legality of actions taken by the same aldermen. In a letter dated Feb. 25, he found no criminal violation had occurred when the three aldermen walked out of a council meeting on Nov. 26. He also said Harrison did not commit a crime by taking Matsukis to Green Forest to try to have her sworn in as a council member by the mayor of that city on Jan. 14.

Harrison, Scheunemann, and Hahn did not file for reelection, and their terms will expire at the end of 2008.

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