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Curiouser and Curiouser: AG enters Godfrey case, Conlin wants LaMarca removed. Selzer’s the best. Randy Evans, Bryce Miller, Pulitzer winner leaving Register.

10/1/2014

Randy Evans, the editor of the editorial pages of The Des Moines Register who has spent the better part of his life in the newsroom, is leaving the newspaper in December.

Bryce Miller, the sports columnist and former sports editor for The Des Moines Register, also is leaving the newspaper. So is Mary Willie, the photographer who won the Pulitzer Prize in 2010 for her stunning picture of a harnessed construction worker rescuing a boater in the Des Moines River downtown. And so is Sharyn Jackson, the author of the massive recent series about rural Iowa called “Harvest of Change.”

Leaving, too, is photographer Bill Neibergall, who followed his father into the newsroom a generation ago. And Rick Shacklett, considered a premier copy editor of the paper.

Tuesday evening was the deadline for applying for jobs — theirs or someone else’s — in the restructured and smaller newsroom. These people decided just to hang it up, a newsroom employee told Cityview late Tuesday. Some have jobs; Jackson is going to the Star Tribune in Minneapolis, for instance. And some don’t; Miller has nothing lined up.

Most are leaving shortly, but Evans is staying on to help the paper get through the election and to give publisher Rick Green time to get the reorganization in place and to find a successor for Evans, who arguably has the most important job at the newspaper. Evans is 64, and when he leaves, so does a huge part of the newsroom’s institutional memory; he knows the newspaper, and the state, as well as anyone.

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Another dozen or so newsroom people at the Register and its little sister in Iowa City will be out of jobs by mid-month, after managers interview the applicants and decide who stays and who goes. It’s clear that some people have chosen to leave rather than apply for jobs held by their friends or colleagues, one newsroom person noted. Others are just leaving because they are worn down by the constant downsizing.

Still others will end up in jobs they didn’t apply for. As of an hour before the application deadline, for instance, no one had applied for two reporting jobs in Iowa City. …

After 18 months on the sidelines, the Attorney General has — puzzlingly — entered the fray in the Chris Godfrey case. Tom Miller’s office told the court that it now will represent the state of Iowa — but not Gov. Terry Branstad or the five other individual defendants — in the case in which Godfrey is alleging discrimination, extortion, harassment and defamation. Among other things.

Adding to the mix: Nearly three years into the case, Roxanne Conlin, Godfrey’s attorney, last week filed a motion asking the court to disqualify LaMarca & Landry, which until the other day was the sole lawyer for the state and remains the sole lawyer for the six individual defendants and co-counsel for the state.

There are enormous stakes — political and financial and legal — in the case as well as an old grudge or two.

Three paragraphs of background:

Godfrey, a gay Democrat, was the state’s workers’ compensation director, and he had a six-year term that was to expire next April. Branstad apparently doesn’t like gay Democrats. After he was elected, he and his staff asked Godfrey to resign; Godfrey refused, and ultimately his salary was cut by nearly $40,000. Godfrey says the Branstad team also did and said some things to him and about him that weren’t particularly nice. He hired Conlin — who once ran for governor against Branstad — and sued on Jan. 11, 2012.

The Governor said he wanted the case to be defended by outside counsel, not the Attorney General, which was an unusual request. “In view of the personal nature of the allegations made against the Governor and his strong preference to proceed with outside counsel,” the AG’s office agreed to step aside, according to a letter the office sent state officials the day after the suit was filed. So LaMarca & Landry was hired at rates ranging to $325 an hour — “a significant discount from Mr. LaMarca’s standard hourly rates,” the letter noted. To date, the state has paid the firm more than $500,000 — that’s basically taxpayer money — and only now is the case heating up.

A core issue involves a statute that protects state employees from being sued for actions taken in the scope of their duties. As the case was getting under way, Deputy Attorney General Jeff Thompson issued a one-paragraph ruling that every action the six individuals took was an action “within the scope of their office or employment.” That pretty much gutted the case — you can’t sue the state for defamation, for instance — and it protected the individuals from having to pay the legal fees. But Godfrey appealed that issue to the Iowa Supreme Court, which in June ruled that it’s up to the jury to decide whether something is in the scope of employment. That was a huge victory for Godfrey in that it kept all the counts alive and a huge worry for the six defendants; if they lose, they’ll have to pay their own legal fees.

Now, on with the story.

That Supreme Court ruling “dramatically changes the way ‘scope of employment’ questions are resolved for state employees who get sued,” Geoff Greenwood, the spokesman for the Iowa Department of Justice, said Friday. “In light of this change, we now believe that our active participation in the case serves the best interests of the state.”

In fact, it’s the beginning of what could end up with every defendant hiring his or her own lawyer. Conlin’s motion to disqualify LaMarca & Landry says in effect that now that the individuals might not be protected from individual liability, they can’t all use the same lawyer. To each, his own interest is paramount, and that interest might conflict with the interest of a fellow defendant. Lt. Gov. Kim Reynolds, for instance, could say she was just doing what the Governor told her. And former Communications Director Tim Albrecht might want to say that he was just following instructions of former Chief of Staff Jeff Boeyink. The same lawyer would have an “ever-changing hat,” Conlin says, and that would limit the individuals from having “adequate and loyal representation.” Further, she says, the individuals can’t waive the conflict.

Besides Branstad, Reynolds, Albrecht and Boeyink, the defendants are Teresa Wahlert, the head of Iowa Workforce Development, and Brenna Findley, legal counsel to the Governor.

Meantime, depositions are being taken, legal bills are mounting, brows are furrowing and Godfrey is happily ensconced in a new job at the U.S. Department of Labor in Washington. No trial date has been set. …

Des Moines’ Ann Selzer might be the best pollster in the nation. There are nearly 350 polls in America, and Nate Silver, of FiveThirtyEight Politics, just ranked their historical accuracy. Selzer & Co., which polls for Bloomberg and The Des Moines Register, was one of three firms at the very top, with an A+ rating. The Gallup Poll got a C+, CBS/New York Times a B. CNN and ABC/Washington Post and NBC/Wall Street Journal each got an A-, Fox News a C+. …

Some Democrats are irked and others suspicious about a $1 million canvassing project under way. In the past, these people say, the party did its own canvassing. This year, the contract went to Terra Strategies, where one of the principals is Norm Sterzenbach, a former executive director of the party. The money comes from the Democratic Senatorial Campaign Committee, not directly from the party. The new national field director of the DSCC is Paul Dunn, a former partner in Tightline Strategies, where he worked with Marco Guido. Guido is a founding partner of Terra. You figure it out.

It’s all just part of “building the largest midterm door-to-door operation in the state party’s history,” says Scott Brennan, chairman of the Iowa party. Though “we have hired Terra to help support our work,” he says, “make no mistake, this is an Iowa Democratic Party program….” …

As of this weekend, Steve Luebke was still in the Polk County jail. CV

Comment: Public Radio

The people who run Iowa Public Radio are slow learners.

Nearly two years ago, the board twice met in secret to discuss the future of then chief executive Mary Grace Herrington even though she did not request the closed meetings.

I sued.

In September of last year, Judge Larry McLellan approved a settlement and judgments concluding that IPR and its board members didn’t comply with the law, enjoining them from future violations for five years, memorializing the resignation of board chairwoman Kay Runge, restricting the role of some other directors, requiring the board to make public-service announcements about compliance with the open-meetings law, and ordering IPR to pay my attorney’s fees, which totaled $35,505.

IPR did all that.

And then it failed to follow the law again.

This time, on Oct. 30, 2013, it met in secret as it prepared to hire — indeed, as it hired — Herrington’s successor, Myrna Johnson.  A public body can’t hire or fire in secret.

Again, I prepared to sue. Instead, I agreed with IPR to submit a list of questions to former Supreme Court Justice Michael Streit so many of the facts could be established without the expense of a trial. Answering one set of questions, Streit said the board covered issues such as finalist competencies that legitimately could be discussed in a closed session.

But he also found — and this is language agreed upon by both sides — “that at the meeting the board completed its executive director search, selected the new executive director, designated a board member to negotiate an agreement with the executive director, delegated power to that board member to negotiate and/or sign an agreement with the executive director, and set employment terms for the next executive director.” Because all of those things occurred in closed session, IPR again failed to follow the open-meetings law.

So last week we were back before Judge McLellan to present a joint request asking him to apply the open meetings law to a now-narrowed set of facts. Both sides agreed to ask him to review the tape and minutes of the closed session to see what portions, if any, should not be released to the public. Jointly, we also asked him to restart the clock on the five-year injunction against violating the law, to rule that for those five years Iowa Public Radio would be deemed a “governmental body” for purposes of the open-meeting law no matter whom the plaintiff was, and to include the Board’s three replacement directors in those bound by the earlier judgment.

The board, which now is chaired by Mary Kramer, has also agreed to once again pay $7,500 toward my legal fees, maybe more once the fees IPR paid its lawyers are tallied.

The open-meetings law is a good thing, but it is a good thing only when public bodies live by it or courts enforce it. Presumably, after holding three meetings that have led to injunctions against further violations, the people at Iowa Public Radio have learned it’s a lot better to live by it voluntarily then to spend thousands of dollars to be ordered to obey the law.

Stay tuned. CV

— Michael Gartner

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