FOI investigation details allegations of secret meetings and malfeasance on casino negotiations by Pope County officials - Arkansas Times
Friday 24th January 2020
Pope County officials conspired to hold secret meetings and hoodwink the public during discussions of a proposed casino, according to the accounts of Pope County citizens interviewed as part of a special prosecutor's investigation into alleged violations of the Freedom of Information Act.
Some of the allegations are explosive: Larry Walker, a Russellville attorney who has been active in a group opposing a casino in Pope County, told investigators that Pope County Judge Ben Cross told him, "Larry, I will tell you what, I can make this whole thing go away right now. I'll walk into my office, I'll sign a letter of support [for the Cherokee tribe's proposed casino]. Tomorrow morning I'll drive it down to the racing commission myself and hand it to them and this thing will be done. It'll be over. There's nothing anybody can do about it because I'm the only one that has that power. The people may hate me, they may fire me, but I'll tell you what, that's okay, because I'll live the rest of my days in Colorado living off the casino's money." Walker described this as a verbatim quote.
Reached for comment, Cross said that this was a "categorical lie."
Another Pope County casino opponent told investigators that Cross "jokingly calls the Quorum Court the government of the few, because there are JPs who are included and some that are excluded from their meetings."
Cross likewise disputed that he had ever said this. "That's a complete fabrication as well," he said. "I have no idea what they're talking about."
Jason Barrett, the special prosecutor appointed last fall to investigate alleged FOIA violations, found that Pope County officials violated the law by holding at least three meetings without proper notice, but concluded his investigation without pursuing criminal charges. Cross vehemently objects to Barrett's conclusions and says that the investigation was flawed in part because he was not interviewed even as he stood accused of violating the law.
As part of Barrett's investigation, Special Agent JayP Massiet of the attorney general's Public Integrity division interviewed eighteen witnesses. Summaries of those interviews were among the investigation materials I received in response to a Freedom of Information request to Barrett.
The FOIA investigation is one thread in a legal mess over a proposed casino in Pope County. State voters approved a measure allowing the casino in 2018, which requires the approval of local officials for a group to receive a license to operate the casino. In the same election, Pope county voters passed an ordinance requiring that county officials get approval from local voters before backing a group for the license. The Pope County Quorum Court overturned this ordinance -- the ordinance was then found unconstitutional by a circuit court judge the following day -- and endorsed the Cherokee tribe's proposed casino over four competitors. Cross also endorsed the Cherokees' proposal. In return, the Cherokees promised more than $38 million in payments to various governments in the county. Critics argue that this pay-to-play deal was negotiated in secret by Cross and certain members of the Quorum Court.
Barrett was appointed after the anti-casino group Concerned Citizens of Pope County filed a complaint last August with the prosecuting attorney's office alleging that county officials violated the FOIA at surreptitious meetings to discuss casinos. The complaint included nine affidavits from Pope County citizens describing subterfuge by county officials.
The interview summaries from Massiet's investigation provide additional color and detail to these allegations, particularly what critics believe was an attempted secret meeting on May 7 that was then followed by a ham-fisted coverup. According to multiple Pope County citizens interviewed, Cross and members of the Quorum Court planned to meet at Shiloh Park in Russellville without notifying the public. One member of the Quorum Court, JP Joe Pearson, informed numerous members of the public about the get-together; shortly thereafter, the meeting was moved to the courthouse, where meetings are normally held. A number of Pope County citizens who attended expressed the perception that this change was to avoid the appearance of impropriety of meeting at the park without notice, once it was clear that members of the public were going to show up. Once they arrived at the courthouse, there was no clerk to take minutes and the lights were out and the doors locked, all unusual if a meeting was to take place. The Quorum Court members were then separated from the general public by Cross, they said, ostensibly for Cross to give the JPs a tour of renovations of the building. Cross then left and the public joined the Quorum Court members upstairs for barbecue, at which time there was a discussion about the casino issue, with no minutes taken. When pressed by the public, Quorum Court members told them that it was a legal and proper meeting.
Reached by phone, Cross told me that the May 7 event was merely intended to be a barbecue at Shiloh Park, "just a social function at which people of the Quorum Court were going to get together." Cross said that because it was such an extremely hot May day, he suggested that afternoon that instead they should meet up at the courthouse where it was air conditioned (the high in Russellville on May 7 was 83 degrees Fahrenheit). He suggested that while the JPs were there, they could look at the courthouse renovations that were taking place. "Out of an abundance of caution, when I suggested we move it to the courthouse instead of at Shiloh Park, I notified the media," he said. (Cross contends that he notified the local media two hours prior to the meeting, as required; multiple Pope County residents interviewed by Massiet dispute this.)
While he did this out of an abundance of caution, Cross said that even this notice was not required, as the get-together was not a called meeting. "We've always operated out of the attorney general's handbook," he said. "It says...social gatherings of members of a governing body are not subject to FOIA as long as the discussion of government business is only intermittent and incidental to the social function." This was merely meant to be a barbecue get-together, Cross insisted, not a meeting.
Cross said that once everyone arrived, he showed the JPs around the courthouse to see the renovations. He said that he didn't recall whether the assembled members of the public joined for the tour but "they were certainly welcome to." Cross said that he left after that and skipped the barbecue that followed (and the discussion of the casino with the public that ensued). "I fulfilled my mission, which was to show the renovations," he said. He said that he didn't feel like sticking around for the barbecue at that point because it was clear that the assembled public wanted to talk about the casino and Cross just wanted to hang out and eat barbecue. "When it became evident that they were going to talk about the casino, I left," he said.
"It was not any called meeting," Cross said. "It strictly was a social function."
According to interviews gathered by Massiet, the impression for a number of those in attendance was different, believing that county officials were scrambling after being caught trying to have a secret meeting. One said that a JP told her that the meeting was changed to the courthouse "because other JPs had learned that members of the public were going to attend this meeting at the park. If the meeting was held at the courthouse the meeting would appear legitimate." Another said "it was apparent to him that the JPs had heard at the last second that they had been discovered and they were trying to cover their tracks." Another said he thought that the judge taking Quorum Court members on a tour of the courthouse "was using this opportunity to get the JPs away from members of the public to devise a different strategy." Another said "from the beginning, the entire situation was awkward, as if the JPs were 'kids caught with their hand in the cookie jar.'"
Multiple people alleged that at the courthouse, JP Caleb Moore pleaded with citizens not to pursue FOIA allegations against him related to the meeting ("Caleb was heard saying 'Don't bust me, don't bust me'"; "Moore pulled her aside in the stairwell asking her not to FOIA him and don't go telling her friends that the Quorum Court is doing bad stuff"; "Caleb...asked Jim, 'not to rat him out on this.'")
JP Joe Pearson told Massiet that he noticed "confused looks on the faces of some of the JPs because citizens had arrived for this meeting" at the courthouse. There was then "discussion among the JPs asking 'what do we do.'" Cross responded to just "just go eat and go home." Pearson said that another JP asked "how did they know," referring to the public. Pearson said that he wasn't sure whether the tour of the courthouse was a ruse to separate the JPs from the public "but that was the effect." He expressed skepticism that the purpose of the gathering was just to eat barbecue and take a tour of the courthouse, and said the incident angered him and "left him wondering why they were afraid to have a public meeting to discuss casino matters."
JP Jamie Jackson, who did not attend the meeting, told Massiet that when he was informed of the initial meetup in Shiloh Park, "he was not going to attend this gathering because he knew every time the JPs meet in this manner, the issue of casinos is the topic...he feels that if there is any discussion about the casinos, it needs to be done at a regular Quorum Court meeting when the public is present, not at a park." He had received information, he said, "that the issue of the casino would be discussed." Jackson opposes the Cherokees' proposed casino; he told Massiet that the $38 million deal was "a form of extortion because before this, no one wanted the casinos" and "the citizens voted against the casinos."
JP Bill Sparks, who did not attend the meeting, told Massiet that "his understanding [of the planned meetup at Shiloh Park] was that it was going to be some form of workshop meeting to discuss strategic planning...based on his experience teaching ethics classes, he felt there would be more to this meeting; therefore he chose not to attend."
Another meeting cited as an FOI violation by Barrett took place the day before, when Russellville School District superintendent Mark Gotcher met with Cross at his office, where three members of the Quorum Court were present when Gotcher arrived. Cross and the JPs discussed potential benefits of the casino for the school district with Gotcher for about 10 to 15 minutes before the JPs departed and Gotcher continued his conversation about the casino with Cross.
Gotcher told Massiet that he later concluded that the discussion of the casino by Cross and the JPs amounted to an improper meeting behind closed doors. He said that he later told Cross on the telephone that they should have informed the media under the Freedom of Information Act; Cross disagreed. Gotcher said he told Cross, "friend to friend, that he should write a memo to put all his notes together and disclose all private or public meetings." Cross then thanked him and ended the conversation.
Asked about the May 6 meeting with Gotcher, Cross said that several JPs happened to stop by his office to visit with him. Coincidentally, they were there when Gotcher arrived for a scheduled meeting, and at that point they talked briefly about the casino issue. "It was not a called meeting," he said. "The other JPs were leaving as Dr. Gotcher got there and they exchanged pleasantries and talked about it."
Regarding Larry Walker's statement that Cross said he would be fine living in Colorado off the casino's money, Cross said that it was a "complete fabrication."
Walker told Massiet that Cross made the comment on two different occasions. He said that during a June 11 Quorum Court meeting, in the hallway, Cross said, "Larry, my office is right here. I'll just walk into my office. I will sign the letter of support right now and end this whole thing right now And I'll live the rest of my days on the casino's money in Colorado."
Cross said that the only comment he could recall making to Walker regarded the fight over the ordinance requiring voter approval for county officials to endorse a casino. Cross said that he told him, "Larry, if I wanted to end all this in a simple manner, I would just write the letter [endorsing the casino]. The haters will hate and the lovers will love it but life will go on." He said that he never said anything about going to Colorado or living off casino money. "That is a figment of his imagination," Cross said.
Cross complained that he was not interviewed as part of the investigation conducted by Barrett and Massiet. "I've conducted thousands of interviews in three decades of law enforcement," said Cross, a former state police officer. "You always interview the suspect."
Barrett offered a scathing assessment of Cross and members of the Quorum Court in a Jan. 2 letter to Pope County Circuit Court Judge William Pearson, informing him that he was closing the investigation. However, he explained that he would not pursue criminal charges, pointing to the fact that Pearson, who would hear a potential criminal case, had previously dismissed an FOIA complaint involving the same allegations in a civil case.
His decision not to prosecute, Barrett wrote, "should not mean that any of the actions taken by the Pope County Quorum Court and the Pope County Judge are being approved or condoned by this review. The FOIA is in place to allow the public to be aware of the process that is used by those who govern. Here that purpose was thwarted with back door meetings and deals and, at least a portion of the citizens of Pope County, are now rightfully concerned about the process."