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High court ponders: When is a meeting a meeting?

11/4/2015

Is it a public meeting if the public officials don’t actually meet with one another?

That sounds odd, but that’s the central question in an Iowa Supreme Court case that was argued last week. It’s not a simple issue — if it were, it probably wouldn’t be at the Supreme Court — but the ultimate decision could affect the ways that city councils and school boards and boards of supervisors conduct their business in this state.

So a lot of elected officials and appointed members of public boards are waiting to see what the court says.

Here are the facts:

Warren County is governed by three supervisors.  A couple of years ago, the chairman, former Casey’s General Stores chief financial officer Doug Shull, decided the county was inefficient and needed to be run “more like a business.”

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He told the county administrator of his ideas. She then told the other two supervisors, Steve Wilson and Dean Yordi, of his ideas. But she told them one at a time. She then reported back to Shull that the other two were in agreement. There was no public discussion of the plan that the three had individually agreed to, which included layoffs. And no two ever met with one another. Then, in March of last year, the administrator fired 12 employees as part of that effort to run the county like a business. They were sent packing the day they were told. They didn’t see it coming, and neither did the public.

Some of those employees signed severance agreements and went quietly. Six didn’t. They sued the supervisors and the board and the county, saying the one-on-one conversations were just a ruse to get around the letter of the open-meetings law. Indeed, Shull said the supervisors were very cognizant of the law and acknowledged that the individual conversations with the county administrator were done precisely to skirt the law — and its requirements for transparency.

Testimony:

Lawyer: Well, you knew, didn’t you, that if you had the discussion you had with [the county administrator] and another supervisor, that would have to be done in an open meeting?

Shull: Yes.

Lawyer: So one of the reasons for having the discussion directly with [the administrator] and having her talk to the other supervisors was to avoid open meetings, right?

Shull: Yes….

Lawyer: There was really no need for a middle person unless you did not want to have an open meeting.

Shull: We did not want to violate the Open Meetings Law.

Lawyer: The letter of it, right?

Shull: Yes.

A meeting, according to the Iowa Open Meetings Law, “means a gathering in person or by electronic means, formal or informal, of a majority of the members of a governmental body where there is deliberation or action upon any matter within the scope of the governmental body’s policy-making duties.”

Notice of such meetings has to be posted, and with some exceptions the meetings have to be open to the public.

The case came before Warren County District Judge Mary Pat Gunderson last year.

“Being in a position of the public trust is an honor and a responsibility,” she wrote in a paragraph clearly aimed at the supervisors. “As such, when difficult decisions need to be made our elected officials have a responsibility to make those comments publicly and similarly to hear the comments and questions from the public regarding those decisions when warranted. Clearly the legislature thought the same thing when they chose to enact” the Open Meetings Law.

But she ruled the other way.

“The court is bound by words chosen by the legislature,” she wrote, “not by what it thinks the legislature should have said.” She noted, too, that in 2005 the Legislature failed to pass an amendment that would have made what some persons call “a walking quorum” subject to the law — a point Justice Thomas Waterman raised in the Supreme Court hearing last week.

“The Supervisors’ actions did not violate the open meeting law because the outcome does not rise to the level of unreasonableness, unjustness, impracticability or absurdity,” Judge Gunderson wrote.

But at least some Supreme Court justices didn’t seem so sure last week. Perhaps it was a meeting because the administrator was the agent of Shull, a justice suggested. Weren’t those individual conversations just “meetings by proxy?” it was asked. Wasn’t it a “rolling quorum,” a justice suggested.

“When you first read the statute, it gives a sense of clarity,” Chief Justice Mark Cady said near the end of the hearing. “A lot of statutes do.” “But when you put in facts and circumstances, clarity gets a little murky.”

What is really clear under the Open Meetings Law, he went on, is its purpose. And its purpose, he said, “is to promote openness in government.”

Then he asked: “Even if the language is clear…but the public sees it in a way that’s contrary to its purpose, how do we resolve that conflict?”

That is the issue. …

Last week’s hearing was held in the evening at Newton High School. It’s part of the court’s effort to be open and accessible, to show people around the state — particularly students — how the justice system works.  The court will meet Wednesday evening of this week in the high school at Harlan. …

The arguments in Newton had an odd twist. Patrick Smith, the lawyer representing the supervisors and in effect arguing for secrecy, represented the Des Moines school system defending the release of emails in the Nancy Sebring case. Tom Foley, the lawyer representing the fired Warren County employees and arguing for openness, was the lawyer arguing for secrecy in the Sebring case. He extracted a settlement valued at $350,000 from Employers Mutual, the school system’s insurer, in connection with the district’s releasing information and being transparent. …

Lawyers for Christopher Godfrey and the state officials he is suing went to federal court the other day to file a “status update” on the case, which is a companion case to the long and costly suit creeping through the state court system.  It doesn’t say much, just that all briefs now have been submitted to the Iowa Supreme Court on a side issue in the suit that Godfrey filed alleging political discrimination and harassment and extortion and defamation.

It didn’t say much — but it’s a safe bet that soon a bill for filing the brief will come from the LaMarca Law Group, which is defending Gov. Branstad and the five other state officials who are defendants. So far, the state has paid the LaMarca firm around $850,000 in fees. The suit arose when the Governor cut the salary of Godfrey, who was head of the state’s Workers Compensation Board. The salary cut was about $150,000 over the remaining length of Godfrey’s term. …

As of the other day, Paul Gilbert is no longer the marketing manager at The Des Moines Register. …

The Register had a story the other day about the class-action lawsuit filed against Meredith Corp. in federal district court here. Coincidentally, it appeared a day or two after news of the suit was printed in Cityview. The Register apparently didn’t have room to report that “the filing of the suit was first reported in Cityview.” CV

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