By Scott Loftis
Eureka Springs Times-Echo
An attorney representing the City of Eureka Springs and Mayor Butch Berry has responded in court documents to a lawsuit filed earlier this year by former city parks director Justin Huss.
In the response filed March 23 in Carroll County Circuit Court, Arkansas Municipal League attorney Sarah Cowan refutes Huss’ claim that his firing in October 2020 was illegal.
Local attorney Tim Parker filed suit on Huss’ behalf on Feb. 21, arguing that the city’s parks commission never voted in public to fire Huss as required by state law.
Cowan’s response acknowledges that Huss was notified of his termination by a text message from parks commission chair Ruth Hager on Oct. 9, 2020. Cowan writes that Hager texted Huss “after repeated attempts” to speak with him in person or by telephone.
Huss’ firing came two days after the parks commission held a special meeting at which Hager announced that the commission would be going into executive session “to discuss a personnel issue.”
The commission returned to public session 59 minutes later. Hager asked if there were any motions and none were offered. After a motion to adjourn, the meeting ended without any further discussion.
The Arkansas Freedom of Information Act sets specific guidelines for public bodies going into executive session.
“(E)xecutive sessions will be permitted only for the purpose of considering employment, appointment, promotion, demotion, disciplining, or resignation of any public officer or employee,” the FOIA says, with the only exception being for matters related to the security of a public water system or utility system. “The specific purpose of the executive session shall be announced in public before going into executive session.”
Furthermore, the FOIA stipulates that: “No resolution, ordinance, rule, contract, regulation or motion considered or arrived at in executive session will be legal unless, following the executive session, the public body reconvenes in public session and presents and votes on the resolution, ordinance, rule, contract, regulation or motion.”
In his complaint, Parker writes that the commission did not vote in public to fire Huss.
“After the executive session ended, the commissioners of Parks failed to reassemble in an open public meeting of the Parks Commission for the purposes of voting on whether to fire Huss from his position as Executive Director,” Parker writes in paragraph No. 12 of the complaint. “Their failure to do so was in full and complete violation of Arkansas Open Meetings Law as set forth in A.C.A. §25-19-106.”
“Defendants deny the allegations contained in the first sentence of Paragraph twelve (12) of Plaintiff’s Complaint,” Cowan’s response says. “The second sentence of Paragraph twelve (12) of Plaintiff’s Complaint contains conclusions of law, and as such, no response is required; however, to the extent a response is deemed necessary, Defendants deny the same and further deny any and all allegations of wrongdoing.”
Parker’s complaint says Huss had “raised the ire” of parks commissioners and other city officials by filing requests for information pursuant to FOIA and by filing multiple grievances about alleged illegal meetings of the parks commission.
The commission allegedly held an illegal meeting on Sept. 26, 2019, which was reported by then-employees in statements emailed to Huss. In audio recordings, the commission can be heard discussing topics including FOIA requests, hiring an auditing firm and their perceptions of a citizen who submitted more than 30 FOIA requests over a two-year period.
“In all respects the termination and firing of Huss from his position as Executive Director on or about October 9, 2020, was an illegal firing that violated the laws cited herein and was done in utter retaliation against Huss for actions legally undertaken as an employee of Parks,” Parker writes in the complaint. “Huss was fired because he had alerted others to the ongoing, illegal actions of certain commissioners of Parks. In short, Huss was illegally terminated because he was a ‘whistleblower.’ Accordingly, his termination by Parks was in complete violation of the law and was done so illegally, outside of an open public meeting as required by law.”
Parker’s complaint also alleges that shortly before he was fired, Huss approached Hager and requested that his claims against the commission “be settled.”
Hager, in turn, presented Huss’ settlement request to Berry, Parker’s complaint says.
“Berry, in open violation of the autonomous status of Parks, instructed Hagar to refuse to settle with Huss instead demanding that Huss either resign or be fired,” Parker writes.
Parker writes that a text message from Hager to Huss reflecting Hager’s discussion with Berry and the mayor’s directive to Hager is filed as an exhibit with the complaint.
“Defendants specifically deny that Mayor Berry made any directive to Chairperson (Hager) regarding the termination of Plaintiff’s employment,” Cowan writes in her response. “Defendants admit that a screenshot of one message from the text conversation between Chairperson (Hager) and Plaintiff is attached to Plaintiff’s Complaint as Exhibit D and speaks for itself.”
The lawsuit seeks lost salary, wages and benefits for Huss, attorney’s fees and court costs, punitive damages of $500,000 against Berry and compensatory damages of $350,000. The complaint also asks for a jury trial. No hearing date has been scheduled.
