Attorney: Judge’s order mistakenly went to spam folder

Thursday, June 10, 2021

An attorney representing defendants in a lawsuit centered around the Eureka Springs City Advertising and Promotion Commission didn’t receive a judge’s order in the case before a commission meeting on May 26 because of a glitch in her email, she says in a court filing.

Amanda LaFever, a North Little Rock attorney, represents CAPC chair Jeff Carter and commissioners Patrick Burnett, James DeVito, Melissa Greene, Harry Meyer and Carol Wright as well as mayor Butch Berry and his assistant Kim Stryker in the lawsuit that was filed in March by Eureka Springs attorney Tim Parker.

Parker represents Greg Moon, whose removal from the commission in January has been a central point of dispute, as well as CAPC finance director Rick Bright, group sales coordinator Karen Pryor, former publicist and interim director Gina Rambo and former special events coordinator Tracy Johnson.

Moon’s removal from the commission was the subject of an April 27 hearing before Carroll County Circuit Judge Scott Jackson. Parker argued that the CAPC did not have the legal authority to remove Moon from the commission at its Jan. 27 meeting and that the vote to remove Moon didn’t receive the four votes necessary for approval.

In a May 25 letter to Jackson, Parker noted that the commission planned to meet the following evening despite the question over Moon’s removal and asked the judge to intervene.

Jackson issued an order the following day, writing that the CAPC lacked the authority to remove Moon and that the vote tally was irrelevant. The order was file-stamped at 3:45 p.m., two hours and 15 minutes before the commission was scheduled to meet at the Auditorium.

The order says a hearing is scheduled at 1 p.m. Tuesday, July 13, in Carroll County Circuit Court in Eureka Springs, “to hear argument concerning the implementation of this order.”

Before the CAPC meeting began, Parker gave copies of Jackson’s order to Carter, Greene, Meyer and Wright, according to a motion for contempt that Parker filed the following day.

Moon approached the stage to take his seat as a commissioner.

“The judge ruled I get to take my seat,” Moon said.

“We haven’t been notified by the court,” Meyer replied.

A Eureka Springs police officer who was at the meeting contacted police chief Bryan Young, who instructed the officer not to allow Moon to participate in the meeting. Young said later that he was not aware that Jackson had issued an order and that the commissioners hadn’t been notified differently by their attorney.

The CAPC proceeded with its meeting, including a unanimous vote to re-appoint Carter to the commission for a four-year term. That appointment will require approval by the city council.

The following day, Parker filed a motion for contempt, writing that Carter, Greene, Meyer and Wright “are each willfully in contempt of this court’s order of May 26, 2021, and should accordingly be severely punished with incarceration, by imposition of civil penalty or other appropriate sanction.”

In a June 1 response to the motion for contempt, LaFever writes that Carter contacted her at approximately 6 p.m. May 26 — the start time for the CAPC’s meeting — and informed her that Moon and Parker were present at the meeting.

LaFever replied to tell Carter that no order had been issued and that Parker was not permitted to have any direct contact with the commission or any individual defendants about the ongoing lawsuit, her response to the motion for contempt says.

After the meeting concluded, LaFever spoke with Carter again and Carter “conveyed that Mr. Moon and Mr. Parker had attended the meeting, but left, and that Mr. Moon had had some piece of paper he was waiving (sic) around, but that Mr. Carter did not see what it was,” the court filing says.

At approximately 7:42 p.m. — after the meeting had concluded — Greene sent two photos to LaFever of the papers she had been given, LaFever writes.

“The images appeared to be of a Court Order in this matter,” LaFever writes. “Upon review of the text images, undersigned counsel double checked her email and there was nothing in her email regarding the Order.”

LaFever sent an email to her clients advising them that the text images were the first she had seen of Jackson’s order or been made aware of its existence, she writes. She also advised her clients that it would be “very out of the ordinary” for Parker to have a copy of the order when she did not and that she would be “looking into it further,” she writes.

That email to her clients was copied to several other attorneys who also represent individual defendants in the lawsuit, LaFever writes, and one of those attorneys replied almost immediately to say they had received a copy of the order from court administrator Cathy Ellis at around 4 p.m.

LaFever then checked the online docket and found no copy of the order there, she writes.

“As a final option,” LaFever writes, she checked a quarantine system used by her firm to filter out spam email. LaFever writes that she found the email from Ellis “amongst 99 other spam emails.”

LaFever writes that because Ellis’ email address ends in “.gov” and because she had exchanged emails with Ellis previously, her email should not have been filtered out through the quarantine system.

The next day, LaFever contacted her firm’s information technology personnel, who advised her that the issue might have occurred because of a system-wide software problem that caused legitimate emails to be routed to the junk folder, she writes.

LaFever’s response to the motion for contempt says Greene “scanned the papers” that she was given by Parker and “did not believe the matter to be entirely settled,” since the order includes another hearing date, does not say the CAPC cannot meet, does not say that Moon is to be seated or allowed to participate in commission meetings and does not mention Burnett — who was appointed by the city council in February to fill Moon’s seat.

Meyer did not recognize Parker, LaFever writes, and didn’t read the papers until after the meeting.

“His understanding of the papers was that the court did not think the CAPC had found Greg Moon ineligible properly, and that there would be another hearing in July, but that the Order did not seem to instruct the CAPC to do anything, other than be prepared for the July hearing,” LaFever writes.

Carter, LaFever writes, was handed a piece of paper by Wright approximately one minute before the meeting was scheduled to begin. Carter “glanced at the paper but did not comprehensively read anything,” before handing the paper back to Wright, LaFever writes.

If Moon or Parker had “truly been interested in Mr. Moon being permitted to sit at the proverbial table or … concerned with the legality of the constituted CAPC such as it was 5-10 minutes before the meeting was supposed to start,” they should have contacted her by email or phone to discuss whether the meeting should or could proceed, LaFever writes.

If she had received Ellis’ email at any time before the meeting, LaFever writes, the meeting likely would have been canceled.

“Based (on) what actually occurred at the meeting, what is clear is that the Plaintiffs’ and Plaintiffs’ counsel’s goal was to create a spectacle, and to provide copies of the Order to those in attendance at the meeting in furtherance of creating a spectacle, not to actually provide some sort of news service to the City Defendants or conduct CAPC business for the betterment of the tourism industry within the City,” LaFever writes.

Attached as exhibits to LaFever’s response to the motion for contempt are declarations signed by Carter, DeVito, Greene, Meyer and Wright.

Each of those declarations includes the sentence: “I have the utmost respect for the Courts and for the Judge and I would never knowingly defy a Court Order.”

The CAPC is scheduled to hold a workshop at 5 p.m. Wednesday, June 9, followed by a regular meeting at 6 p.m.

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  • Gee, considering the considerable expense of attorney's fees paid for superior expertise, "glitches" with regard to emails does not seem to be a very good excuse in this case. That issue should have been handled by tech before it caused the serious problems it did. Law is not lightweight work.

    -- Posted by jpmorganfreeman on Thu, Jun 10, 2021, at 2:51 PM
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