Two Mountain Home school board members violated the Arkansas’ Freedom of Information Act when they participated in illegal meetings via text messages with the superintendent, and all three should have been charged, Fort Smith attorney Joey McCutchen said Tuesday.

McCutchen and his law partner, Stephen Napurano, filed suit on Friday, exactly two weeks after Prosecuting Attorney David Ethredge announced that he wasn’t going to file criminal charges in the case.

Melissa Klinger is the plaintiff. The Mountain Home School District and its school board are the defendants. The lawsuit was filed in Baxter County Circuit Court.

McCutchen said the criminal investigation centered on former Superintendent Jake Long, who now lives in Missouri, but Mountain Home school board members were also culpable.

The case involves Long polling two board members — Lisa House and Daniel Smakal — over a secret text message chain about a proposed millage increase last year, according to a news release from McCutchen. Both are still on the school board, and House is president of the board.

Based on the text message chain, McCutchen said it was apparent that Long had previously polled each of the other five board members when he told House and Smakal that the board was divided “3-3” on whether to propose a millage rate increase of 2.25 or 2.75 mills. Long was waiting on one other board member to respond. The proposed millage would have generated $54 million to $60 million for the school district.

“When school board members cavalierly and secretly engage in meetings involving $50 million to $60 million, there needs to be real accountability and consequences for those illegal actions,” said McCutchen. “How can a school district teach our kids to accept responsibility for their actions when they violate the law and there is zero accountability?”

On Tuesday, Ethredge said the case centered on Long because he instigated the text conversations and, as superintendent, he should have known he was violating the law.

Ethredge said he didn’t file charges in the case because he didn’t think he could get a conviction.

“My position hasn’t changed,” he said. “Law enforcement investigated this, and we believe the decisions that were made were appropriate based on the situation. … Everything we looked at made us believe we would have been unsuccessful in getting a conviction.”

Ethredge said Long, who resigned from the school district in June 2023, would poll the school board on issues via text messages before discussing those issues at regularly scheduled meetings. Ethredge said the practice went on for a couple of years, during which time voters twice rejected millage increases for the school district.

When discussing the case last month, Ethredge noted that the statute of limitations was one year on the misdemeanor charge and the alleged violations occurred over a year ago.

In an email on May 22, Long said, “Mistakes are a part of being human, but those mistakes were never intentional or deceptive. The millage campaign led to people targeting the board and questioning the integrity of each member. That is so unfortunate, because it undermines the selfless work they do daily for their community and its young people.”

McCutchen said it was disappointing that Ethredge chose to focus on Long, who is no longer with the school district, instead of the elected school board members.

McCutchen said he was also disappointed that Ethredge chose not to pursue criminal charges.

“This is why we need a people’s amendment and act to put teeth in our FOI law,” said McCutchen. “As we sit today, there is literally no punishment and no deterrence for this school board. All they got was a slap on the wrist by the prosecutor, now go away.

“This is a huge hole in our FOI law in that there’s no accountability by bad actors. We have no civil penalty and the bottom line is prosecutors will not prosecute these cases.”

McCutchen was referring above to petition drives that are underway to get the Arkansas Government Disclosure constitutional amendment and initiated act on the November general election ballot.

The proposed amendment calls for making government transparency a right and would make it more difficult for the General Assembly to amend the state’s sunshine law.

The initiated act would establish a state commission to assist citizens with their records requests, provide clarity regarding what is considered a public meeting and give courts the authority to issue civil penalties against members of the governing bodies that don’t comply with a lawful records request.

To make the November ballot, the amendment will need at least 90,704 signatures and the act will need 72,563 signatures turned into the secretary of state’s office by July 5.

McCutchen said he wants a court order indicating that the Mountain Home School District and its board broke the law. Otherwise, he said, the issue will soon be forgotten and it will happen again.

“The court should declare that the text messages described above constitute impermissible polling and an illegal meeting held without public notice in violation of the open-meeting provisions of FOIA,” according to the lawsuit.

Ethredge sent a letter to current Mountain Home school superintendent Allyson Dewey on May 1 saying the Baxter County sheriff’s office had completed its investigation and sent the file to the prosecutor’s office for review.

“From the investigation, it is clear that Superintendent Jake Long engaged in a course of conduct that was designed to circumvent and frustrate the explicit intent of the ARFOIA,” wrote Ethredge. “Superintendent Long created the non-public text communication to avoid open public meetings on matters that were of great public interest. While initiated by Long, the actions also involved the then existing school board.”

Ethredge wrote that his May 1 letter would serve as an “official warning” that all meetings of the school board should be fully open to the public.

Ethredge recommended the school district conduct a training session on the Freedom of Information Act.

In a statement, Dewey said they’ve already had training sessions.

“Shortly after the news articles about potential FOIA violations came out, our board attended a FOIA law training session to provide additional clarity,” she said. “We’ve also begun livestreaming our meetings, have incorporated a public board discussion section into each regular meeting agenda and we send a comprehensive, easy-to-read board report to the media after each regular meeting.”

On Monday, Circuit Judge Andrew S. Bailey recused from this case.

“When school board members cavalierly and secretly engage in meetings involving $50 million to $60 million, there needs to be real accountability and consequences for those illegal actions.” — Joey McCutchen, Fort Smith attorney