Defendants move for dismissal of CAPC suit

Thursday, April 22, 2021

City officials named as defendants in a lawsuit centered around the Eureka Springs City Advertising and Promotion Commission have responded to the complaint, asking that the suit be dismissed.

Eureka Springs attorney Tim Parker filed the suit on March 10 in Carroll County Circuit Court on behalf of Greg Moon, CAPC finance director Rick Bright, group sales coordinator Karen Pryor, former interim executive director Gina Rambo and former special events coordinator Tracy Johnson.

Defendants in the lawsuit are Eureka Springs mayor Butch Berry; his administrative assistant Kim Stryker; CAPC commissioners Patrick Burnett, Jeff Carter, James DeVito, Melissa Greene, Harry Meyer and Carol Wright; and two insurance companies that provide policies to the city. The suit names the city officials as defendants in both individual and official capacities.

One commissioner, Bobbie Foster, is not a defendant in the lawsuit.

Among other allegations, the lawsuit contends that a Jan. 27 vote by the CAPC to remove Moon as a commissioner was illegal because the commission lacks the authority to remove a commissioner and because the motion to remove Moon failed to receive the four necessary votes.

Wright, who at the time was the commission chair, declared Moon’s seat vacant after a roll-call vote that saw three commissioners vote to vacate the seat, with two commissioners — Foster and Moon — voting no and Greene abstaining. Wright did not vote, leaving the motion one vote short of the four needed for approval, but declared the seat vacant.

A video recording of the meeting shows clearly that Wright did not vote, and two newspapers that regularly cover CAPC meetings reported that there were three votes in favor of Moon’s removal.

The Eureka Springs City Council appointed Burnett to the commission on Feb. 22 to fill the seat that had been held by Moon.

At the CAPC’s Feb. 24 meeting, the commission voted to amend the minutes from the Jan. 27 meeting to say the vote on the motion to remove Moon was 4-2-1.

An emergency hearing is scheduled for 1 p.m. Friday, April 23, in Carroll County Circuit Court in Eureka Springs on the issue of Moon’s removal from the commission.

Katherine C. Campbell, a Rogers-based attorney for Carter, filed a motion to dismiss the suit on April 16, arguing that the claims against Carter were related only to actions he took in his official capacity and that he is immune from tort claims — except to the extent they may be covered by liability insurance — under state law. Carter now serves as the CAPC chair.

In a separate response, Amanda LaFever, a North Little Rock-based attorney for the other individual defendants in both their individual and official capacities, and Carter in his official capacity, also asks the court to dismiss the complaint.

That response, also filed April 16, says the city officials named as defendants “affirmatively state that they have not violated the rights of the Plaintiffs and have not engaged in any nefarious, dishonest, or maliciously damaging conduct with respect to plaintiffs.”

The 21-page response argues that the city officials named as defendants are immune from tort claims in their official capacities under Arkansas law and says that attorney general’s opinions on the process for removing a CAPC commissioner, attached as exhibits to the plaintiffs’ complaint, “are not mandatory authority in the State of Arkansas(.)”

A separate 12-page response, also filed by LaFever on April 16, repeats the assertion that Wright voted for Moon’s removal at the Jan. 27 meeting.

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  • Looks like it's shaping up to be a pretty humiliating defeat for our poor plaintiffs.

    -- Posted by Lovecraftfan on Thu, Apr 22, 2021, at 7:33 PM
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