Attorney asks judge to intervene on CAPC

Thursday, May 27, 2021

The attorney representing the plaintiffs in a lawsuit centered around the Eureka Springs City Advertising and Promotion Commission has asked a judge to order the commission not to meet until the legal dispute is settled.

Meanwhile, the former chair of the commission has signed an affidavit stating that she cast the deciding vote to remove another commissioner from his seat — despite video evidence that she never voted on the issue.

In a letter sent Tuesday to Carroll County Circuit Judge Scott Jackson, Eureka Springs attorney Tim Parker notes that the CAPC has scheduled a regular meeting Wednesday, May 26, despite the unresolved dispute over the commission’s vote to remove Greg Moon from his seat in January.

Parker represents Moon as well as CAPC finance director Rick Bright, group sales coordinator Karen Pryor, former interim director Gina Rambo and former special events coordinator Tracy Johnson in the lawsuit that was originally filed March 10.

Defendants in the original complaint were Eureka Springs mayor Butch Berry; his assistant Kim Stryker; CAPC commissioners Jeff Carter, James DeVito, Melissa Greene, Harry Meyer and Carol Wright; along with two insurance companies that provide policies to the city.

Parker filed a supplemental complaint on March 18, adding Patrick Burnett — who was appointed by the Eureka Springs City Council to fill Moon’s seat on the commission — as a defendant.

The lawsuit raises a number of allegations, including arguing that Moon’s removal from the CAPC was illegal because the commission lacks the legal authority to remove one of its own members and because the motion to remove Wright received only three votes — one short of the four needed for approval. Parker alleges that because Moon’s removal was illegal, all action taken by the commission since the Jan. 27 meeting should be declared null and void.

In a March 20 letter to Jackson, Parker notes that the CAPC continued to meet after the lawsuit was filed and requests an emergency hearing on the legality of Moon’s removal.

“In the alternative, we need an order staying all future CAPC meetings, votes, etc. until this question is resolved,” Parker writes.

Jackson originally scheduled an emergency hearing on April 23, then rescheduled it to April 27 at the request of defense attorney Amanda LaFever of North Little Rock.

The April 27 hearing centered around the disputed vote to remove Moon. Bright testified that Wright did not vote and that his handwritten notes from the meeting and the minutes he presented to the commission for approval reflected that. Carter testified that Wright did vote, saying that “it was muffled.” However, he was unable to indicate when Wright voted during a review of a video recording from the Jan. 27 meeting.

At that meeting, Wright — then the commission chair — moved to remove Moon from his seat because he wasn’t currently employed in a tourism-related business. Moon had served as a manager at a local restaurant but acknowledged that he was on a leave of absence — which he attributed to the COVID-19 pandemic — at the time of the vote.

Three commissioners — Carter, DeVito and Meyer — voted in favor of Moon’s removal. Moon and commissioner Bobbie Foster voted no, and Greene abstained.

Wright, who was then chair of the commission, then declared Moon’s seat vacant although she never stated that she was voting in favor of the motion. Four votes from the seven-member commission are required to approve a motion.

Wright did not testify and did not appear to be present at the Jan. 27 hearing, although LaFever indicated that she had signed an affidavit saying that she had voted on the motion to remove Moon.

In the affidavit, submitted as an exhibit by LaFever along with a brief file marked May 17, Wright writes that the vote of 3-2-1 “realistically left the vote at 3-3, a tie,” since Greene’s vote functioned as a no vote.

“As the Chair, I can vote to break a tie to pass a motion,” Wright writes. “I declared Mr. Moon’s seat vacant. Ms. Green (sic) then asked if I was going to be the fourth vote to pass, to which I replied yes. However, I was wearing my mask, and multiple people were talking, and the audio of the video of the meeting, which I have watched, did not pick up my yes. I then once more declared the seat vacant.”

All of the commissioners, including Wright, had microphones directly in front of them at the Jan. 27 meeting and Wright can be heard clearly throughout the video recording of the meeting. There is no evidence in the recording of Wright ever voting yes to Moon’s removal.

At the conclusion of the April 27 hearing, Jackson said LaFever would have 15 days to file a response to Parker’s brief asking for the hearing, then Parker would have 10 days to reply to LaFever’s response before Jackson issues a ruling.

After the April 27 hearing, the CAPC canceled its regular meeting that had been scheduled for April 28, although it did hold a scheduled workshop on that date. Commissioners do not vote during workshops but can discuss CAPC business.

In Tuesday’s letter to Jackson, Parker includes an agenda for the scheduled May 28 meeting. Among the items on that agenda are “Commission Position 1 - Jeff Carter.” Carter’s term expires June 30.

“As you will recall, I previously submitted a motion and corresponding order to you halting all future CAPC meetings until the court rules on the issue of Greg Moon’s removal from office,” Parker writes. “The CAPC obviously realizes the predicament they are in and, rather than suspending future meetings until the legality of their actions is resolved by the court, have opted to continue to ostensibly undertake CAPC business irrespective of whether they are a legally constituted commission.”

“I can see no legal way for the current group who claim to be the CAPC to move forward,” Parker writes. “… Judge, we need the court’s assistance in this matter.”

Respond to this story

Posting a comment requires free registration: