The case of Tracy Johnson et al. v. Carol Wright et al., contains allegations of civil conspiracy, fraud, defamation, and breach of contract. Tuesday morning, April 27, Circuit Judge Scott Jackson heard testimony on one aspect of the case.
Greg Moon was removed as a commissioner of the City Advertising and Promotion Commission at a meeting in January. The suit claims that action was illegal, and Moon sought immediate reinstatement to the commission at Tuesday’s hearing. He served in a position reserved for the owner or manager of a restaurant, and by the time of the January meeting, had been on an extended leave of absence after the business where he worked closed down due to Covid restrictions.
Proceedings began with a defense motion for a continuance. Amanda LaFever said plaintiffs’ attorney Tim Parker had filed some papers late Friday, and she needed more time to review Parker’s brief. Jackson opted to proceed with testimony but announced at the outset that he would leave the record open to allow the defense more time.
At the end of several hours of testimony and review of records, Jackson gave LaFever 15 days to file a response, and Parker would then have 10 days to respond to that filing. The judge said he may schedule a telephone conference for further questions.
Parker began by outlining his claim that the CAPC did not have the legal authority to remove one of its own commissioners. Municipal governments must have enabling powers from the state. Parker said multiple opinions from the state attorney general say most cities lack the ordinances that would allow removal of a commissioner. Parker had written to the city to ask about such an ordinance and received a response that Eureka Springs does not have a specific ordinance addressing this. He said even if the city had such an ordinance, city council would vote on the question.
Parker said the CAPC did not proceed properly at the January meeting, even if the commission had the authority to remove a member. He offered testimony and records from the January meeting showing a vote of three-to-two in favor of removing Moon. By ordinance, any successful vote requires four votes for passage. A video recording of the meeting shows then-chair Carol Wright announcing a three-to-two vote. Another commissioner can then be heard asking if Wright provided the fourth vote.
Rick Bright has worked at the CAPC as finance director for 10 years. He regularly took minutes of the meetings, and his draft listed the vote as 3-2. He testified that he did not hear Wright enter a vote. The minutes were amended at the next meeting to reflect a four-to-two vote.
Jackson leaned toward considering the corrected minutes as the “best evidence,” but Parker again led Bright through the steps he took in preparing the minutes.
Commissioner Jeff Carter sat next to Wright at that January meeting and testified that he heard her cast the deciding vote. Parker replayed the video and asked where Wright might have offered that statement. Immediately after the vote, she declared the Moon’s position vacant based on a three-to-two vote. Parker also noted that Wright voted twice to break 3-3 ties at that meeting, and she can be heard clearly both times.
LaFever asked the judge to consider barring Moon from the position because he no longer meets requirements of the position. In response, Parker shared a citation which indicated that a commission would have to go through a formal removal procedure even if he became ineligible after beginning his service.
According to Parker, AG opinions indicate that a city without an ordinance enabling the removal of a commissioner would have to rely on an illegal exaction lawsuit.