2 casino licensing votes called improper

Friday 1st May 2020

A Little Rock lawyer said the state Racing Commission should void recent decisions concerning the Pope County casino license because the group violated the Arkansas Freedom of Information Act by coming to a decision in private before a public meeting.

The commission "flagrantly violated" the state's open meeting law at its April 15 meeting, which was held remotely via video, by reaching a pair of decisions in private concerning companies hoping to open a casino in Pope County, said John Tull, an attorney and Freedom of Information Act expert who represents the Arkansas Press Association, in a Wednesday letter to the commission obtained by the Arkansas Democrat-Gazette.

At that meeting, the commission voted to accept an application from Cherokee Nation Businesses on a "good cause" basis and to let stand without appeal a ruling by Pulaski County Circuit Judge Tim Fox that returned Gulfside Casino Partnership's initially rejected gambling application back to the commission to judge on its merits.

"It is, therefore, curious that both votes followed very little public discussion. Indeed, the substantive portion of the meeting only lasted approximately ten minutes," Tull said in the letter, addressed to commission Chairman Alex Lieblong and copied to commission Executive Director Smokey Campbell, all six commission members, commission attorney Byron Freeland, Senior Assistant Attorney General KaTina Guest and Deputy Attorney General Butch Reeves.

[RELATED: See complete Democrat-Gazette coverage of casinos in Arkansas at arkansasonline.com/casinos]

A commission spokesman said commissioners had not met privately before the meeting, and that it had followed the provisions in the state Freedom of Information Act.

The April 15 meeting began several minutes late due to technical difficulties, but once the proceedings began, the commission moved quickly through both items of interest.

There was little to no discussion among the commission members and periods of long silence when Lieblong called motions on each item. The votes on both issues were unanimous.

"The absence of any substantive discussion regarding the meaning of good cause is particularly notable considering the many questions, and apparent divergence of views between Commissioners, expressed at the Racing Commission's prior public meeting held on March 4," Tull said in the letter.

[DOCUMENT: Letter to the Arkansas Racing Commission " arkansasonline.com/51casino/]

Both issues have been the subject of extensive litigation.

Gulfside sued the Racing Commission over the rejection of its license because its application -- unlike the other four applications submitted during the first application window, which closed in May 2019 -- contained endorsements from local officials before they left office in December 2018.

Constitutional Amendment 100 -- which was passed by voters in November 2018 to allow a new casino each in Pope and Jefferson counties and allowed the expansion of gambling at the racetracks in Hot Springs and West Memphis -- requires endorsements, but it does not stipulate when they must be made.

On March 25, Fox ruled unconstitutional a commission rule requiring that the endorsements be from officials in office at the time of the application.

While the Racing Commission chose not to appeal Fox's decision, the Cherokees filed a notice of appeal with the state Supreme Court on April 2. An appellant's brief from the Cherokees is due by May 12.

The Cherokees resubmitted their application after receiving endorsements from current county officials. A second window established by the Racing Commission was "abandoned" after Pulaski County Circuit Judge Wendell Griffen, in a separate case filed by anti-casino group Citizens for a Better Pope County, issued and extended a temporary restraining order barring the commission from issuing a license for a casino in Pope County under the second application window.

Griffen, however, said his ruling did not prohibit the commission from taking applications after an application period is closed, if the application can show "good cause."

Before the vote was taken to accept the Cherokee application, Lieblong told the commissioners that the new endorsements fit the definition of "good cause."

Now, both Gulfside and the Cherokees are vying for the Pope County gaming license. Jim Fox, a gambling consultant from Scottsdale, Ariz., was contracted by the Racing Commission to review the applications and make a recommendation.

Cherokee Nation Businesses and Gulfside Casino Partnership representatives declined to comment on Tull's allegations.

Tull said in the letter that he was "recently provided information" that explains the lack of public discussion on the two issues.

"The Racing Commission secretly met and reached a decision on both votes prior to the meeting," Tull said. "I have been informed that in the days prior to the April 15, 2020 meeting, Smokey Campbell, Executive Director of the Racing Commission, polled members of the Racing Commission and instructed them to vote to not appeal Judge Fox's Gulfside decision and to accept the Cherokee application. My understanding is that you also made statements that the outcome of both votes had already been determined prior [to] the meeting."

In an interview Thursday, Tull did not reveal his source, but said he holds the source in "high trust."

"I believe I have rock-solid evidence," Tull said.

The state Freedom of Information Act mandates that all meetings of state commissions "shall be public meetings."

"The Arkansas Supreme Court has already held that secretly polling board members before a public meeting violates the [Freedom of Information Act]," Tull said.

"On behalf of advocates for open government in Arkansas, and the public as a whole, I ask that the Racing Commission invalidate its prior votes made during the April 15, 2020 meeting," Tull added. "The public is entitled to hear the reasons why the Racing Commission decided not to appeal the Gulfside decision and found 'good cause' to accept the Cherokee's belated casino application."

The state Supreme Court in the 1985 case, Rehab Hosp. Servs. Corp. v. Delta-Hills Health Sys. Agency, Inc., recognized that courts can void decisions made by governing bodies to enforce the Freedom of Information Act.

"If the Racing Commission declines to promptly address this issue, I will be forced to file suit seeking to invalidate both votes from the April 15, 2020 meeting," Tull said, giving the commission until May 8 to remedy the situation.

Tull said Thursday that he simply wants the commission to follow the law.

"If you have the support to win that suit, then you need to bring the suit to make sure they and other people in the future, follow that law," Tull said. "No one likes to be told by a judge that you've broken the law. So I'm going to trust -- and they are represented by able counsel -- that their counsel is going to advise them of the law and the need to follow it. If I find that they do re-vote, I'm going to be convinced that they've received proper instruction of the need to follow the law and it will be a true discussion."

Commission spokesman Scott Hardin said the commission has not determined whether it will act on Tull's allegations.

Hardin said there was no discussion among the commissioners before the April 15 meeting. The commissioners "understand and strictly follow the rules established" in the state's open meetings law, he said.

When asked if Campbell, the commission's executive director, polled the members of the Racing Commission and instructed them to approve the two measures, Hardin said Campbell did indeed call the commissioners individually the day before the meeting to ensure they were aware of a change on the meeting agenda.

"Mr. Campbell has made similar courtesy calls in advance of numerous meetings," Hardin said. "With each call made April 14, he simply informed Commissioners of the revised agenda and confirmed the meeting's call-in numbers. Mr. Campbell did not poll members or in any way instruct their votes."

Metro on 05/01/2020