Friday, June 02, 2017

TOP STORY >> Smith wants chief’s case to continue

Leader staff writer

Jacksonville Alderman Tara Smith, through her attorney Nate Steel, has responded to the city’s request to have Circuit Judge Alice Gray throw out Smith’s case against the city for the hiring of the new police chief, Geoffrey Herweg.

She filed the suit in mid-April. Herweg has a 2002 misdemeanor conviction of filing a false report after an off-duty accident while he was a police officer in Texas.

Steel, in his latest response filed Tuesday, said, “Mayor Gary Fletcher, with knowledge of these convictions, appointed Herweg to the office of Chief of Police for the City of Jacksonville, Arkansas. Herweg’s appointment to an office of public trust violates Arkansas law, and he must be removed.”

Steel said City Attorney Bobby Bamburg and the city are inappropriately citing state law, not Smith. In his response to Bamburg’s request for dismissal, Steel said, “Defendants inappropriately cite federal law for the proposition that their motion should not be converted, but provide no controlling authority for such an argument. The motion should be denied.”

Steel continued to insist that Smith is right in her belief that the office of Chief of Police is “an office of public trust or profit as prescribed by Article 5, Section 9 of the Constitution of the State.”

Unless the judge takes some type of action, the first hearing in the case is set for 3:30 p.m. June 19 in Little Rock.

Smith, in her suit, said that Herweg should not be allowed to hold the position because he has an “infamous crime on his record, and by hiring the chief and paying his salary the city is using taxpayers’ money improperly.

Steel, when he was a state legislator sponsored the bill that defined “infamous crimes” as a felony offense; a misdemeanor theft of property offense; abuse of office, tampering or a misdemeanor offense in which the finder of fact was required to find, or the defendant to admit, an act of deceit, fraud, or false statement.

Bamburg, in mid-May, filed for dismissal, claiming the suit was “frivolous.”

He also said state law allowed mayors in first-class cities like Jacksonville to appoint and dismiss department heads. Bamburg further claimed that the section of the state Constitution that Smith and Steel say apply in this case is only for elected officials.

Bamburg also said that Smith didn’t try other methods and steps before filing the suit. Any mayoral appointment can be vetoed by a two-thirds vote of the council. Smith never asked for the vote.

Steel said, “The Arkansas Supreme Court held that an appointed town marshal holds a public office for purposes of the Constitution of the State of Arkansas, and prohibited him from serving. The Court came to the same conclusion for an appointed marshal in a city of the second class” in a later case.

Bamburg insists that section only applies to elected officials.

Steel told the judge in his brief that “whether an office is appointed or elected is of no consequence. The question is whether the individual holds a ‘public office’ for purposes of the Constitution of the State of Arkansas. If so, the individual is subject to constitutional limitations.”

And that is what Judge Gray must decide on or before June 19.