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A triumph over secrecy.

Waldron School Board Member Shelby Frost Boldly Took Her Peers To Court In An Attempt To Open Meetings To The Public

The battle for government in the open in Arkansas has a new heroine. She is Shelby Frost, 47, a member of the Waldron School Board who challenged her colleagues on the issue of secrecy and won.

Weary of closed, executive sessions and angered by a private board meeting she was neither told about nor invited to attend, Frost swore out a warrant for the arrest of three of her fellow board members.

The judge was sympathetic to the board members and dismissed the charges. Nevertheless, he warned them about holding secret meetings.

Angry and embarrassed at being hauled into court, the three school board members brought a civil suit against Frost for malicious prosecution. They wanted an apology, $5,000 in punitive damages and the payment of $900 in legal fees.

The Arkansas Freedom of Information Act, which requires all government agencies to meet in public and to notify the press, was passed by the General Assembly in 1967.

While there have been many civil suits brought to enforce it, this was the first time that public officials who violated the law were arrested. It was also the first time public officials accused of violating the FOI Act turned on the accuser and tried to collect for malicious prosecution.

Fortunately for Frost, the attempt failed.

If she had lost, the judgment against her could have been for thousands of dollars since victims of malicious prosecution in Arkansas are entitled to receive payment for mental anguish.

The outcome also was fortunate for the public. If the jury had decided against Frost, it's doubtful other people would have been tempted to drag public officials before a magistrate no matter how many secret meetings they had held.

Public officials, especially non-paid, part-time officials like school board directors, don't like the Freedom of Information law.

That's not so much because of an interest in malfeasance. It's because of a belief that they can run the schools better and faster if they do it behind closed doors, as they do in their own businesses.

This was the case in Waldron.

Public Excluded

In 1987, Shelby Frost and her husband, Don, a disabled and retired ironworker, moved from Arizona to Scott County, where Don was born and where his family has lived for six generations.

Shelby Frost, who has a master's degree from the University of Arizona at Tempe, noticed the school board's penchant for secrecy. Her examination of the board's minutes revealed that 75 percent of the board meetings were preceded by an executive session excluding the public and press.

Because she had a daughter in the fourth grade, Frost was aware that the schools were having problems -- problems she knew would not be solved by dealing with them in secret.

So, in 1990, Frost decided to run for the school board. She had taught school in Arizona for 13 years.

One of the planks in her platform, published in an advertisement in the Waldron News, was that she was against closed meetings and executive sessions.

She won the race against two male opponents and immediately began to chide her four male fellow members on the question of secrecy.

Then, her mother died in Arizona. Before she could return to Arkansas from the funeral -- and maybe because of it -- the board held two quick special meetings.

When she returned, Frost complained about the board's calling special meetings for routine school business.

Then, she handed each of the members material that she had requested from the Arkansas School Boards Association and the state attorney general's office.

It read: When two or more school directors meet with any group, formally or informally, it constitutes an official meeting and the press and public should be notified. Also, executive sessions and special meetings must be called only for specific purposes and their use must not be abused.

Nine days later, three members of the board held a meeting with six teachers from Waldron's middle school -- a private meeting neither Frost nor the press were told about. Yet, Frost had been the only school board member who had been critical of the middle school operation.

It became obvious to her that at least three of the school board members had decided to ignore the FOI law and to exclude her from board deliberations if they could.

Looking For A Judge

Frost talked to the prosecuting attorney and the attorney general's office. Both said it appeared there had been violations of the FOI law.

She filled out a warrant for the arrest of the three members and went in search of a judge who would sign it.

This proved to be quite a job.

The three school directors were Mark Bailey, a dentist; Larry Rice, a furniture store owner and son of state Rep. W.R. "Bud" Rice; and Neil Cherry, manager of a NAPA Auto Parts store. These were widely known members of the establishment in Scott County.

So, it's understandable why judges were reluctant to sign the warrant.

There are not many business and professional men in Scott County to begin with since 88 percent of it is national forest. The few that are there are highly valued and neither their decisions nor their methods are customarily called into question.

In fact, Don Frost had to drive 600 miles before he could find a judge to sign the warrant. Finally, on June 5, a municipal judge in another county who once had acted as Frost's attorney agreed to sign the warrant. On July 18, the three defendants appeared before Municipal Judge Paul Williams of Booneville.

Their lawyer immediately asked for a directed verdict of not guilty.

Twenty-five minutes later, it was granted.

Judge Williams was impressed by the defendants' argument that they were at this particular meeting only as spectators, much as they would be at an athletic event. Therefore, he ruled they did not violate the FOI law.

However, Judge Williams admonished the three school directors to be more careful in avoiding private meetings in the future. Then he dismissed the case.

A crowd of the board members' relatives and friends in the courtroom stood, applauded and derided Frost.

While disappointed by the judge's quick conclusion, Frost, who never expected the men to be fined or put in jail as the FOI law allows, shook hands with the three men. She believed her mission had been accomplished.

"I could not have ignored what they had done," she says. "If I had, I would have been as guilty as they were."

She wanted a judge simply to tell the men that they could not conduct school board meetings in secret. But the three school directors were not repentant.

One month later, one of the board members threatened Frost with a lawsuit if she did not agree to apologize for bringing the charges and pay the three school directors' legal fees.

She refused. On Oct. 3, they filed suit against her in circuit court.

FOI Battle

Rice, the school board president, said that he and the other two members believed that Frost filed charges against them maliciously when she knew that they had not violated the Freedom of Information law.

"We want to stop it |arresting school board members~ from happening when there is no cause for it," Rice said.

The suit stated that Frost had brought charges against them "for political reasons, without probable cause, and for the purpose of causing harm to the plaintiffs."

To defend herself, Frost retained Phillip Carroll, a senior member of the Rose Law Firm in Little Rock who had successfully defended the first test of the Freedom of Information Act before the state Supreme Court in 1968.

Carroll denied that Frost had acted with malice but rather "solely for the purpose of upholding the Freedom of Information Act ... that public business be performed in an open and public manner."

The trial was in February before Circuit Judge Charles Eddy. Greg Karber of Fort Smith represented the three board members.

Karber made the point that four judges -- including Eddy -- had refused to sign the warrant for the Frosts before they found one who would. Asked about this, Frost testified that the judges did not turn them down because of a lack of probable cause but because they did not want to get involved.

The principal argument of the three school board members was that their meeting with the middle school teachers was not really a formal school board meeting and, therefore, it was not necessary to notify all the board members and the press.

One of the teachers, Kerry Barnett, testified that the teachers had arranged the meeting simply to tell board members "all the good things that were happening at the middle school."

Carroll asked her why it was not especially important for Frost to be there since she had been the only board member who had been critical of the middle school. The teacher said that she had intended to set up a second meeting to talk to Frost.

Board member Neil Cherry insisted that the meeting with the teachers was not a regular school board meeting because the three of them only listened to what the teachers said, did not ask questions or take any action.

This was the spectator argument that worked so well in municipal court.

"Are you telling the jury that that wasn't a meeting because you didn't speak?" Carroll asked Cherry.

"That's right," Cherry said.

Carroll called this "a perfect loophole" to get around the Freedom of Information law.

"They just listen and |don't~ speak and hear all of the information that no one else gets to hear and yet don't violate the law," Carroll said.

In his closing statement to the jury, Carroll stressed the importance of open government in a free society. In insisting upon it, his client was not only doing the right thing, he said, but also upholding a campaign promise in the best American tradition.

"Punish Shelby Frost?" Carroll asked. "You ought to have a parade |for her~ and celebrate."

While listening to Carroll, Paul Marrone, editor of the Waldron News, said with a touch of sarcasm that he expected at any time to hear a band strike up "God Bless America."

But Carroll obviously was effective -- and necessarily so. The jury found in favor of Frost but by a 9-3 margin, the bare minimum.

Congratulations have come to Frost from throughout the state in the form of letters, telephone calls, donations, flowers and even an ad in the Waldron News that called her "a credit to Scott County."

Since the trial, the three men have been cordial to her. She believes the entire board is trying to put the disagreement behind it and conduct all school

business in public.

If true, Shelby Frost believes that will more than make up for the unpleasantness and expense ($6,000 plus) she has incurred and turn her personal victory into a victory for everyone in Arkansas.

Robert S. McCord was the senior editor of the Arkansas Gazette until it closed Oct. 18. In 1967, he was the president of the Arkansas chapter of the Society of Professional Journalists, which was responsible for the drafting and adoption of the state's first Freedom of Information law.
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Title Annotation:Shelby Frost's struggle for public school boards to open meetings to the public
Author:McCord, Robert S.
Publication:Arkansas Business
Date:Apr 20, 1992
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