HISID board goes to closed mediation on judge's okay

Wednesday, July 31, 2013

BERRYVILLE -- Hoping to finally come to some resolution on the Bischoff v. HISID lawsuit, attorneys for both parties petitioned Judge David Clinger to suspend the Freedom of Information Act and allow the Board of Commissioners to meet as a body in mediation earlier this month.

Clinger granted the request, under state statute.

Last year property owner David Bischoff brought an illegal exaction class-action suit against the district over the legality of the Assessment of Benefits performed in 2011, along with alleged illegal levies, collection and use of funds over a period of many years.

The parties have attempted on several occasions, informally and through formal mediation, to settle the suit, and the case has had three different judges.

On June 23, attorneys petitioned Clinger to allow more than one member of the Board of Commissioners to meet in formal mediation. Normally under the FOIA, no such meeting can take place without notification to the press of an executive session, and then only for the purpose of deciding personnel matters. Votes must be taken in public.

But under Arkansas Code Ann. 16-7-206 (c), a trial court can issue a protective order to avoid disclosure of information normally public under FOIA.

"To open the mediation process up to the public would significantly reduce the parties willingness to make good faith offers of settlement for fear that the offer would be made public and negatively affect the potential jurors feelings about the case," the attorneys argued.

Judge Clinger held a closed hearing two days later, granted the request and filed his ruling on July 9. In his ruling, he wrote, "The parties have attempted two (2) prior mediations without the Commissioners being represented (only a Commissioner's representative was present). Both parties agreed that the two prior mediations were wholly unproductive, and felt that the success of any future mediation depended entirely on the presence of the entire commission."

The judge also noted that the "plaintiff's class representative" i.e., Bischoff, representing all Holiday Island property owners, is not subject to the FOIA and is "entitled to participate in the mediation process free from concerns about statements made during the mediation being made public."

Clinger did, however, put stipulations on the mediation. Any settlement agreement could only be tentative, terms of the settlement would then have to be made public, with the public given an opportunity to comment, and any final vote on settlement would have to be taken in public.

Mediation was held July 18 in Berryville at Cornerstone Bank.

HISID Chairman Ken Ames said no action was taken.

According to sources close to the situation, all board members except Greg Davis were present, and the parties met for close to 12 hours but failed to reach a tentative settlement agreement. Another mediation session has been planned for sometime in August.

Marilyn Clave, district office manager, said by phone Monday that funds budgeted for legal fees last year were $42,126, but the district spent $89,777.48. This year, the district budgeted $35,000 and has spent, to date, $47,442.64. These expenditures include work on foreclosures and quit-claims by the district's attorney, Tom Morris; as well as any work billed so far by attorneys handling the assessment lawsuits, Bischoff v. HISID and Table Rock Landing v. HISID; and a title dispute the district is involved in.

The July 18 mediation invoice has not yet been received, said Carrie Buchanan, who handles accounts payable for the district.

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