Tuesday, April 26, 2016



A circuit judge fined Little Rock $10,000 Monday for not being ready for trial in the case of a former police officer suing the city and for failing to follow the judge's scheduling order.

Judge Tim Fox issued the fine after Latonya Austin, the attorney for Little Rock, filed several motions for continuance of a jury trial that was set to begin next week. Fox took issue with the city only assigning one attorney to what he described as a "complex" case. Austin resigned after the fine was assessed.

It isn't the first time a court has said Austin didn't follow rules, leading to the city having to pay out money.

City Attorney Tom Carpenter said in an emailed statement Monday that he understands the court's frustration, but that he doesn't believe the fine is appropriate. The city is reviewing the matter and may challenge it, he said.

Fox chastised the city throughout his written order issuing the fine.

"Even though the Little Rock City Attorney's Office has a number of attorneys who regularly engage in trial work in both the state and federal courts, the defendants have elected to only have a single attorney make an entry of appearance as attorney of record for purposes of trying this matter," Fox wrote in his fining order.

"[Austin] made numerous statements on the record indicating she had not properly or professionally prepared the case for trial and that she had failed and refused to comply with the court's scheduling order," Fox said.

The $10,000 penalty assessed on the city is pursuant to Rule 11 of the Arkansas Rules of Civil Procedure, Fox said. The city must pay the fine to the Pulaski County Circuit Clerk within 10 days.

Carpenter said in his statement that sanctions under the rule "are not appropriate," and that the city is investigating the matter and will take the appropriate steps to possibly challenge the penalty.

Austin, a deputy city attorney in Carpenter's office, is handling defense in the case of Tiffany Malone vs. City of Little Rock, which was filed almost two years ago.

Fox's order came four days after Austin filed a third motion to continue trial in this case Thursday. Austin's third request was after Fox had already denied her second rescheduling motion in March and also denied her request to reconsider that denial.

"At the pre-trial hearing on April 4, 2016, [Austin] stated she has never previously handled any litigation involving the legal issues present in this case," Fox wrote Monday.

Austin is the same attorney who handled an appeal to the Arkansas Supreme Court in December on a circuit court decision in which the Supreme Court dismissed the appeal over the city failing to follow rules. That meant the city had to pay a $510,675 judgment to land owners in an eminent domain case decided by a jury in circuit court.

In that case, the Supreme Court said the city didn't order and pay for a $1,500 trial transcript on time. It also involved Austin filing motions for extension of time.

In the current case, Malone, formerly an officer of the Little Rock Police Department, filed a suit against the city in May 2014 alleging gender discrimination and retaliation.

She said she was sexually harassed by her supervisor -- including inappropriate sexual requests, comments, text messages and discipline -- on a regular basis.

Malone said she repeatedly rejected the advances and complained to the captain and to the Human Resources Department, but that no investigation was conducted and no action was taken.

When she went back to the officials with recordings that she says are of her supervisor admitting to the harassment, she said she was disciplined for recording him and received the same punishment levied on him for the alleged harassment.

The city denied that the supervisor admitted to harassment in the recording and said that he was never disciplined for harassment as Malone alleged. The city stated further that Malone's 30-day suspension was for multiple offenses, not just the recording.

The city did say that Human Resources told Malone she needed proof of alleged harassment "before anything could be done."

Malone further alleged that she was treated differently than male counterparts when a group of officers were disciplined for "unbecoming" behavior that did not involve violence or a criminal act.

Malone was eventually fired, with the city citing dishonesty and the use of excessive force. She said she pepper sprayed a man who kicked her. The city said Malone's firing was unrelated to her allegations.

The city denied Malone's allegations and said Malone complained to her sergeant for the first time three days before filing her complaint.

Fox's court canceled the jury trial that was scheduled for Wednesday of next week. A new trial date has not been set.

Austin has been employed in the city attorney's office for 2 and a half years. Prior to that she worked at the Center for Arkansas Legal Services, handled her own cases under her self-owned law firm, and was a public defender in the Pulaski County Public Defender's Office.

She's also been a prosecutor in Pulaski County and a law clerk to the Arkansas attorney general. She graduated from the William H. Bowen School of Law at the University of Arkansas at Little Rock.
After Carpenter filed his motion for Fox to reconsider the sanction, he subsequently filed a motion to stay the payment of the fine until Fox had ruled on the reconsideration request.

Fox's April 25 order told the city to pay the fine within 10 days. That deadline came and went without the city paying and without Fox responding to Carpenter's motions.

After the deadline had passed, Fox declined both motions without comment and ordered City Manager Bruce Moore to appear in a contempt hearing to explain why the fine wasn't paid on time.

At that hearing, a back-and-forth exchange with Carpenter and Fox ensued, with Fox interrupting Carpenter several times. A few days after the hearing, Fox issued a written order finding the city in contempt for failure to pay the fine on time.

"The defendant Little Rock's failure to pay the fine as ordered was based, in whole or in part, on advice of legal counsel from its city attorney," Fox wrote. "Such advice fell below professional standards of competence and was in direct violation of established case law. The Arkansas Supreme Court has previously held that acting on advice of counsel is not a defense to a charge of contempt of court but that such reliance does lessen the seriousness of the offense."

The city had already paid the fine before the contempt hearing and argued that the hearing was moot and had asked Fox to cancel it, but Fox didn't.

"This is a civil contempt; the city did not willfully disobey the order of the court, but instead pointed out that the order was not entered in accordance with Arkansas law and sought appropriate relief," Carpenter wrote in his request. "Civil contempt can be cured by the alleged contemnor by performing the necessary action, i.e., the payment of the sanction."

"... the Arkansas Supreme Court has clearly stated that a finding of criminal contempt for the failure to pay Rule 11 sanctions constitutes 'a plain, manifest, and gross abuse of discretion' that cannot be upheld. Ivy v. Keith, 351 Ark. at 285," Carpenter cited.

Fox said in order for the city to cancel out its contempt, Carpenter must go to six hours of continuing legal education on case management and ethics by January or be faced with a default judgment against the city in the Malone case.

Carpenter said at the time that Fox's finding wasn't based on fact.

"The Arkansas Supreme Court -- not any circuit court -- in control of the requirements for continuing legal education, which I meet and exceed every year," he said.