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City wants pay parity judge replaced

City wants pay parity judge replaced

Arkansas side has called ordinance unconstitutional, wants suit dismissed

September 23rd, 2018 by Lynn LaRowe in Texarkana News

The city of Texarkana, Ark., wants a lawsuit concerning police officer salaries dismissed and is asking that the judge currently presiding over the case be replaced.

A suit filed on behalf of more than 80 Texarkana, Ark., residents in Miller County circuit court in December alleges the city of Texarkana, Ark.—under the leadership of named defendants Mayor Ruth Penney-Bell and City Manager Kenny Haskin—has mismanaged funds collected through a sales tax meant to keep Texarkana, Ark., police salaries in parity with those in Texarkana, Texas. The petition seeks a court order earmarking the tax revenue for police salaries and requests court oversight of the money.

The case centers on city ordinances passed in 1995 and 1996 which created a sales tax for the purpose of keeping salaries equal for officers in both Texarkanas. The hope was to keep the best officers from seeking employment where the pay was higher.

Lawyers for Penney-Bell and Haskin deny in court filings that the funds are being diverted or mismanaged. The defendants claim that the revenue being collected via the Texarkana, Ark., sales tax just isn't enough to keep up with police pay in Texarkana, Texas.

In a motion filed last month, Hot Springs lawyer Ralph Ohm, who represents Penney-Bell and Haskin, claims that the revenue from the parity sales tax has not been sufficient to maintain pay parity since 2013. The motion for summary judgment claims that the city of Texarkana, Ark., has had to pull close to $1 million from the general fund to meet the cost of parity since 2013.

"The City of Texarkana, Ark., has been required to remove funds from the general fund to supplement the city's attempt to maintain salary parity for over the last five years," the summary judgment motion states. "As a result of removing money from the general fund, other city services have suffered because the City of Texarkana, Ark., has been required to maintain salary parity between the police departments of Texarkana, Ark., and Texarkana, Texas."

The city defendants claim that the ordinances violate the Arkansas state constitution because they permit an outside authority—the city of Texarkana, Texas—to fix the salaries of policemen.

"That conduct is specifically prohibited and cannot be overruled by a vote of the people," the summary judgment motion states. "The City of Texarkana, Texas, which appears to be financially stronger that the City of Texarkana, Ark., is dictating to the City of Texarkana, Ark., the amount of salaries that must be paid to their police officers and fire personnel This has created a potential crisis for the City of Texarkana, Ark. In fact, the City of Texarkana, Ark., cannot continue down this road."

The defendants make it clear in their motion for summary judgment that they are not challenging the sales and use tax portion of the city ordinances and intend to continue to use the funds entirely for police department employees.

"The city is not requesting that the court strike down that provision of the statute providing for the collection of the sales and use tax, and will, in fact, continue to use the sales and use tax solely for the purpose of providing salaries to Texarkana, Ark., police officers," the motion states. "However, the requirement of the ordinance that requires parity with Texarkana, Texas, is not sustainable and not constitutional."

The summary judgment motion seeks a dismissal of the suit and a declaration by the court that the part of the ordinances requiring pay parity be declared unconstitutional and thus unenforceable.

The defendants are also asking for a new judge.

The case was randomly assigned to Circuit Judge Brent Haltom when it was first filed. Haltom recused himself before the end of 2017, and the case was randomly reassigned to Circuit Judge Carlton Jones. Jones recused himself in January, and the case went to Circuit Judge Kirk Johnson. Haltom, Jones and Johnson are the only circuit judges serving in the 8th Judicial District South, which includes Miller and Lafayette Counties.

Judges often recuse themselves in cases where there is a familiarity with parties on one or both sides of a case. Ohm filed a motion in June asking that Johnson bow out of the case and allow the Arkansas Supreme Court to assign a circuit judge from a different jurisdiction to oversee the matter.

The plaintiffs' motion seeking recusal complains that Johnson has a brother who is retired from the Texarkana, Ark., Police Department and alleges that Johnson is a close friend to TAPD Chief Bob Harrison and some of the plaintiffs. The motion includes a photo of Johnson leaving an area restaurant after having dinner with several of the named plaintiffs in the case in January.

"Although counsel for the Defendants absolutely believes that this Court can be fair and impartial in regards to the handling of this matter, in order to ensure that the Court is not placed in a compromising situation, and in order to ensure that the Defendants do not have any type of reason to question the motive of the Court, counsel for the defendants feel it is necessary to ask this Court to recuse Division Three Circuit Judge Kirk D. Johnson to recuse from hearing this case," the recusal motion states.

The plaintiffs, represented by Texarkana lawyer Brent Langdon, filed a response opposing the recusal. The plaintiffs argue that the defendants have failed to show how Johnson's brother might benefit should the judge rule a certain way and note that the recusal motion was filed about 145 days after the picture of Johnson with several of the plaintiffs was taken.

"Defendants fail to assert what, if any, 'interest,' Judge Johnson has in the underlying matter," the response in opposition to Johnson's recusal states.

All of the motions are currently pending before the court, and no hearings are currently scheduled in the case.

llarowe@texarkanagazette.com

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