After two Little Rock Board of Directors meetings dominated by tension over a symbolic no-confidence resolution on Little Rock Police Chief Keith Humphrey, sponsor Ward 5 Director Lance Hines withdrew the measure. But not before directors aired concerns about the chief.

The chief answers to the mayor, not the board. The resolution urged Scott to “take appropriate action” with Humphrey, who Scott hired and continues to support.

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The board went into an executive session for more than an hour and a half to consider appointments to city boards and commissions and evaluate City Attorney Tom Carpenter and City Manager Bruce Moore, the only two positions the board controls. Mayor Frank Scott Jr. said afterward that Carpenter and Moore had “exceeded expectations.”

The board also unanimously passed the city’s 2021 $272.7 million budget with little discussion. The board had declined to take up a vote on the budget at its last regular meeting two weeks ago.

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Hines pulled down the resolution after at-large Director Dean Kumpuris spoke at length of his dissatisfaction with the chief, but said that, ultimately, he didn’t believe the resolution was appropriate and would set bad precedent. He said he figured his plan to vote against the resolution would come as a surprise to both Hines and Scott.

Without Kumpuris, Hines likely recognized that he was short of the necessary six votes to pass the resolution. At-large Director Joan Adcock said at tonight’s meeting that she would support the resolution. At-large Director Gene Fortson and Ward 4 Director Capi Peck both signaled Tuesday their concerns about Humphrey, though not necessarily their willingness to support the resolution. Ward 7 Vice-Mayor B.J. Wyrick has publicly said she didn’t have confidence in the chief. Ward 1 Director Erma Hendrix, Ward 2 Director Ken Richardson (who was absent Tuesday) and Ward 6 Director Doris Wright have all spoken in support of Humphrey. Ward 3 Director Kathy Webb hasn’t publicly taken a position.

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Carpenter had asked Hines not to present the resolution at the last meeting because of litigation involving the LRPD. Today, in an email to the board, Carpenter again asked Hines not to move forward. He wrote, “The reason I am concerned about the resolution is that I see no action that can be helpful to the City. If the resolution passes, action will need to be taken or there is a strong argument the City has acquiesced in Department policies. If the resolution fails, then in future acts the plaintiffs will allege the City had a chance to assure no such action would take place, but the elected policymakers did nothing about it.”

At the meeting, Carpenter said of his concern, “It’s a lot like saying to your son, ‘I really wish you wouldn’t take the car out on New Year’s Eve,’ and they do it anyway and have a wreck.”

Carpenter later elaborated, “I’m worried about my client the city. I’m not worried about the political aspect of it. … I’m not speaking to you as someone trying to give you wisdom, I’m speaking to you as a lawyer, having sat through depositions and hearing how statements are taken out of context and used to try to prove something they may or may not prove.”

Hines said nonetheless he thought it was important to have a vote on the ordinance. He said it brought him no joy, but that he’d tried working behind-the-scenes with Scott without success. He said the resolution was “simply an expression that this police chief has become bigger than the department, his leadership is not effective as you can see from the crime rate and caravanning.”

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During the public comment period at the last meeting, many speakers said that the resolution was all about race. Hines on Tuesday said, “I feel … almost sad that civil discourse not only in this city but in our country has turned to, if a person who is white in color objects or has a disagreement with a person of color then therefore we are racist because we do not agree. That’s the total antithesis of what racism is or what civil discourse is.” Hines said he knew who the man he looked at the mirror every morning was, and he wasn’t a racist or white supremacist.

Scott again told the board that the resolution was improper from a legal and personnel standpoint.

Adcock said she would support Hines and suggested that the mayor was trying to bully directors. “I started out as a little girl being bullied on the playground, and I will not be bullied,” she said.

During an abbreviated public comment session, retired LRPD officer John Gilchrist, the recent past president of the Little Rock Fraternal Order of Police, said that the department was losing police officers at a historic rate under Humphrey. LRPD Lt. Zach Farley, the new president of the FOP, said that the department’s environment had turned toxic and that, in his 20 years with the LRPD, he’d never seen it as bad.

Kumpuris spoke for some 10 minutes of his concerns about Humphrey. He said the first time he’d become concerned about the chief was during the “George Foreman” protest, confusing the name of George Floyd, which drew loud hoots from members of the crowd. During the height of the protests, Humphrey sent a letter to the full police force saying he was embarrassed by the appearance of a segregated police force during a briefing.

“I’ve read it several times and there are many aspects of it that I agree with,” Kumpuris said. “What I don’t agree with is at a moment of crisis, you don’t use that opportunity to criticize a group. You praise in public and criticize in private. If you’re going to change things, you don’t send a blanket statement to every person in the department.”

He also said the chief hadn’t managed his composure in tense situations when caught on camera by a “distractor,” likely referring to police critic and city hall gadfly Russ Racop, who was thrown out of tonight’s meeting after cursing members of the audience and the mayor during public comment. Other Kumpuris concerns: losing officers in the department and the persistent problem of car caravanning.

But ultimately, Kumpuris said, “I think it forms a very bad precedent that we bring up any personnel issue.” Next year, the board could be discussing the finance or public works directors, he said. But he added that he didn’t plan to vote no because he believed what Hines or the FOP had said was wrong.

Hendrix, who is known for speaking whatever is on her mind, expressed frustration that Kumpuris spoke at such length. “We’re here to vote on this issue, not to hear Kumpuris give a dissertation. Here in our neighborhood we call that frontin,’ ” she said.

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Fortson, who declined to run for another term last year and participated in his last meeting tonight after 13 years as an at-large member, echoed some of the concerns relayed by Kumpuris and said that board members have a responsibility to listen to the FOP and other members of the community and make sure they relay those concerns to the mayor. Peck said that Kumpuris and Fortson had covered her concerns.

Wright said she believed the resolution was out of order because of ongoing litigation involving members of the department and because it concerned a personnel matter beyond the board’s purview.

She said much of crime is generated by poverty and neighborhood conditions. “To blame all of the crime on a chief who hasn’t been here that long is not fair and I think it’s ill founded,” she said. She speculated that the COVID-19 pandemic and the closures of clubs and other gathering spots had led to the increase of caravanning.

Here’s the email Carpenter sent to the board earlier today.

Dear Mayor Scott and Members of the Board of Directors:

The resolution sponsored by Director Hines is on the agenda of the recessed meeting this afternoon. Since the resolution was first discussed, there have been changes in counsel for certain cases which involve Chief Humphrey, Chief Finks, former Chief Fulk, and others with the Little Rock Police Department. In addition, the City continues to be subject to litigation. Recently, a case was filed against the City that alleged the use of excessive force during an automobile chase which ended in the person being chased crashing a car and causing the death of another person.

This last lawsuit crystallizes some of the concerns I have about the resolution and its discussion. First, I believe that it is appropriate for the governing policymakers to make it known to the hiring authority – here Mayor Scott – their beliefs about the Little Rock Police Department and its leadership. I believe it is the Mayor’s ultimate position to take action. But, from a strictly liability standpoint, I have to think through actions which are filed for interactions that have occurred between citizens and individuals, and members of the Department, since Chief Humphrey was hired.

An easy illustration is a simple use of force case. The plaintiff believes the force used was excessive. But, the lawsuit will not only be against the officer, or officers, who used force, it will also be against supervisors, police policy makers, and to an ultimate extent the City as the ultimate policy maker. Many municipalities are represented by the city attorney’s office, but the same office does not tend to represent the officers. Why? The officer’s typical defense is two-fold: (1) I did not use excessive force; and, (2) Even so, any force I used was totally consistent with City policy.

The City of Little Rock’s typical defense has been: (1) We do not believe the officer used excessive force; and, (2) But, if the officer did, it was contrary to our policy. In constitutional litigation, to succeed against the municipality, the plaintiff must show that it was a city policy, or a city custom so pervasive as to effectively be a policy, which caused the constitutional violation. Policies are formal: they are ordinances, resolutions, orders, rules and regulations. For a custom to be treated as policy, it essentially has to be so consistent and well-known that it is virtually the same as a written document.

To be sure, the defenses the City has offered in the past were never done until it was determined if the Department believed the officer acted in accordance with policy. Only then would the City essentially ratify the officer’s actions in a joint defense. Otherwise, this office would always have an irrevocable conflict of interest in such a case.

The reason I am concerned about the resolution is that I see no action that can be helpful to the City. If the resolution passes, action will need to be taken or there is a strong argument the City has acquiesced in Department policies. If the resolution fails, then in future acts the plaintiffs will allege the City had a chance to assure no such action would take place, but the elected policymakers did nothing about it. If the resolution fails because a number of members vote present, it is the same result. Further, this slice of the liability issue subject to all kinds of nuances I have not covered. The problem is, I do not know of anything that can be said by anyone that cannot also be turned against the City. I believe that there are ways to defend against such attacks; but, from the lawyers viewpoint, having to deal with this side issue seems inappropriate.

This would not be the case if I was not aware that the City has taken, and continues to take actions to assure that its policies and procedures meet, and often exceed, constitutional standards. Further, I know that actions are underway which will make this review even more intensive.

 I will not direct you to say, or not say, anything. You are elected policymakers and I have no appreciation of how that impacts your duties since my position is appointed. However, I wanted you to have the benefit of my thoughts as we go into the meeting this afternoon.

               Tom