PROPOSED CASINO: A special prosecutor concluded that Pope County officials violated the FOIA in working on deal with Cherokee tribe.

The special prosecutor appointed to investigate the actions of the Pope County Quorum Court during negotiations over establishing a casino found that the Freedom of Information Act was violated, but concluded his investigation without pursuing criminal charges.

“After weeks of interviews and collecting evidence that I was able to provide through the use of my subpoena power, I have concluded that the FOIA has been violated,” wrote Jason Barrett, appointed to investigate the matter last fall, in a Jan. 2 letter to Pope County Circuit Court Judge William Pearson. “However, pursuing a criminal case regarding this violation alone is not prudent or possible at this time.”

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Barrett pointed 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.

A scan of Barrett’s letter and accompanying materials was posted on the Facebook group Pope County Majority, which backs the casino; it has not previously been made public.

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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 [Ben Cross] 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.”

The FOIA dispute 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 local approval 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 — which was then found unconstitutional by a circuit court judge the following day — and endorsed the Cherokee tribe’s proposed casino over four competitors; in return, the Cherokees promised more than $38 million in payments to various governments in the county. This pay-to-play deal was negotiated in secret, argued critics. Barrett was appointed after the anti-casino group Concerned Citizens of Pope County  filed a complaint last year with the prosecuting attorney’s office alleging that county officials violated the FOIA at surreptitious meetings to discuss casinos.

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In his letter to Pearson, who approved his appointment as special prosecutor, Barrett described three meetings that appeared to violate the law’s requirement that all meetings of the quorum court be public meeting, and a fourth “purported meeting” that raised questions but “where the evidence is not as clear”:

First, on May 6, 2019, the county judge and three justices met with the superintendent of Russellville schools and specifically discussed the possibility of a casino and the financial benefit that the schools would receive. The meeting between the justices and county judge was ongoing when the superintendent arrived and continued for another ten to fifteen minutes. Once the justices left, the superintendent continued to talk about the casino benefits with the county judge.

Next, on May 7, 2019, the evidence shows that a meeting was to be held without required public notice at the Shiloh Park. The public was informed of this meeting by one of the justices of the peace, so the meeting was moved to the courthouse. There is a conflict with whether any notice of the meeting was provided, but the quorum court and members of the public did hold a question and answer session about the casino process during the meeting.

Third, on August 1, 2019, after a scheduled meeting of the quorum court, six members of the quorum court met for dinner at the Old Bank Bar and Grill. There is video evidence of the members in attendance at the restaurant, but there is no audio of the gathering. While we do not know the nature of the conversation, the Attorney General has previously opined that if any discussion of city business took place it would be a violation. It is somewhat beyond belief that the conversation did not continue regarding the business of the governing body, but there is no direct proof of that being the case at this meeting.

Finally, on August 13, 2019, there was a purported meeting of some of the members of the quorum court and Mr. William Wetzel, who is a real estate agent that represents several of the casino vendors. There is no clear picture that shows who, if any, of the justices attended the meeting, but it is clear that Mr. Wetzel was present and paid $1,203.58 that included $505.23 for food and beverages … Still, absent any additional proof of who attended this dinner or what was discussed, there is no action that can be taken.

While Barrett concluded that the first three of these Quorum Court meetings violated the FOIA, a Class C misdemeanor, he noted that Judge Pearson had already heard these allegations and found that the plaintiffs failed to provide sufficient evidence to prove an FOIA violation. Pearson came to this conclusion in a civil lawsuit challenging the Quorum Court’s actions endorsing the Cherokees’ casino bid, in the same ruling in which Pearson found the ordinance requiring local voter approval unconstitutional.

If the State were to pursue a criminal case, Barrett wrote, it would have a higher burden of proof to establish that the FOIA was violated — and the same judge, Pearson, would hear that case, too.

Furthermore, Barrett noted, the Quorum Court eventually had an open public meeting addressing the issues discussed.

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“It is my belief that the FOIA has been violated in this case, and by this letter I am informing the public of that conclusion,” Barrett wrote. “This conclusion notwithstanding, it is my belief that the further pursuit of the FOIA violation would not meet the goals of justice which I have been tasked to serve.”

Barrett thus chose to close his investigation, but not before issuing this somewhat scathing assessment of the actions of Pope County Judge Ben Cross and the Quorum Court:

In the course of this investigation, there have been numerous accounts of some justices of the peace being left out or excluded from the discussions about the casino selection. There is certainly some belief that some of the justices have not received all of the information about the casino applicants. This should make everyone question if the best decision has been made for Pope County.

Additionally it seems apparent from this investigation that not all of the potential casino vendors were considered to the same extent. Whether this means that the result would have changed from the selection that was ultimately made remains unknown. What can be said is that the process has multiple problems as it was conducted. The ultimate issue of whether certain county officials involved in the process shave failed to conduct themselves in the performance of their duties in a manner that is lawful, complete, and proper, is outside the scope of my authority at this time. This evaluation of malfeasance, misfeasance, and nonfeasance should be completed if any further review of this case is considered.