Tuesday, October 21, 2014


Civic Skinny

The mess gets messier at Iowa Public Radio

3/20/2013

Maybe Iowa Public Radio should do a special report on organizations that abuse and misuse the Iowa Open Meetings and Open Records laws.

The reporter wouldn’t have to leave the office.

As Cityview pointed out two weeks ago, the closed meeting in February in which the IPR board decided to fire chief executive Mary Grace Herrington was flagrantly illegal. It turns out now that it was just part of an emerging pattern under IPR Chair Kay Runge. Newly posted minutes show that without legal cause she closed a meeting in December, too.

And apparently as a result of a reporter’s request for the “cultural audit” of the place that led to the firing of Herrington, IPR over the weekend posted on its website a notice saying, in effect, it is not a “government body” as defined under the Iowa Open Records Law.

Indeed, Wayne Reames, the lawyer at the Belin McCormick firm that represents IPR, told Cityview on Monday that IPR is not subject to the Open Records Law because it is not a “government” body and is not subject to the Open Meetings Law because it is not a “governmental” body. That seems somewhat ingenuous given the fact that Runge read from exceptions to the Open Meetings Law before going into closed sessions in the past two IPR board meetings. And others familiar with the law say there’s little doubt but that IPR is covered.

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For the public, there’s a way around the open-records issue. The Iowa State University Foundation more than a decade ago tried to keep its records secret. Two Iowans sued, and in 2005 the Iowa Supreme Court said the foundation “performs a government function by virtue of its contract with ISU,” Therefore, the court said, “its records are ‘public records’ subject to examination.” It said ISU, if not the foundation, must respond to requests.

The losing lawyers in that Iowa State case were one-time journalist Chris Miller and onetime Supreme Court Justice Mark McCormick of the firm now known as Belin McCormick, the same firm advising Iowa Public Radio. Iowa Public Radio, of course, also performs a “government” or “governmental” function — “Public” is its middle name, for Pete’s sake — and it gets about $1 million a year from the three public universities and another $400,000 or so in direct appropriations from the state.

If you want any IPR documents, go to the Board of Regents, the IPR website now says. If you want to go to an illegally closed meeting, go to court, apparently. Apparently Runge’s reading of the Open Meetings Law exceptions was just for fun.

That’s not exactly the policy envisioned by organizers of IPR. “A discussion about open meeting/open records led to a determination that this does not need to be referenced in the by-laws because it will be written into IPR’s organizational policies,” the minutes of the January 2006 organizational meeting show. “It was agreed that IPR’s intent is to be open and transparent, complying with [Corporation for Public Broadcasting] policies, [Federal Communications Commission] requirements and State laws with regard to these kinds of issues. [Belin firm lawyer Wayne] Reames suggested one of IPR’s policies should define a process that clearly informs the public and the media about how to access IPR information.”

At any rate, in December, according to those newly posted minutes on the IPR website, the board went into executive session to “evaluate the professional competency of an individual whose appointment, hiring, performance or discharge is being considered when necessary to prevent needless and irreparable injury to that individual’s reputation and that individual requests a closed session.”

That individual — if there was such an individual — presumably was Herrington, and she didn’t ask that the session be closed. Without that request, the IPR board could not have closed the meeting. The minutes point out that “Ms. Herrington noted Closed Session…was not required; Director (Art) Neu was unsure and asked to proceed with caution.” Then, throwing that caution to the winds, “Board voted unanimously to move into Closed Session….”

The December session apparently was about hiring a group to consult on human-resources issues, presumably because the staff was pissed at Herrington, something that is not even remotely close to any of the 11 exceptions to the Iowa Open Meetings Law. When the closed session ended, “Vice Chair [Doug] West moved to hire the Meyvn Group to conduct a Cultural Audit all-employee survey for a cost of [spoiler alert: your public-radio contributions at work] $20,000 plus travel expenses not to exceed [spoiler alert: more of your public-radio contributions at work] $25,000.” The motion passed unanimously.

[The Meyvn Group is based in faraway Valley Junction.]

The open-meetings law is not something to be treated cavalierly. Any Iowan can sue a body that apparently meets in violation of the law, and the government body has the burden of proof to show that it acted legally. If a court finds against the government body — all private sessions must be taped, and a judge listens to the tapes — each member who voted to go into closed session must be fined between $100 and $500, and those individuals must pay “all costs and reasonable attorney fees” of the person who sued. The court then almost has to void any action taken at the closed meeting.

If any board member twice is assessed damages for violating the law, the court must remove that person from office.

So, hypothetically, if a person were to sue the board for closing the December meeting, and win, and then someone else sued for closing last month’s meeting, and won, the court would have to remove six members of the board — all but the University of Iowa’s Mark Braun, who joined the board after the December meeting.

And, like the signs used to say at the draft boards in the 1950s, ignorance of the law is no excuse.

[Draft boards? Ask your grandfather.]

The law also authorizes the county attorney or the attorney general to “seek judicial enforcement” of the open-meetings law. No one can remember the last time that happened.

Meantime, Cityview understands that both Herrington and the IPR board have retained lawyers as a result of her ouster. Her lawyer is David Goldman at Babich and Goldman. The board is represented by Mike Reck of the [spoiler alert: more of your public-radio contributions at work] expensive Belin McCormick firm.

Stay tuned.

One other thing: In March of 2003, Iowa Attorney General Tom Miller issued an advisory opinion saying that “a multi-membered body formally and directly created by a state board, council, or commission that itself is subject to the Open Meetings Law — if the multi-membered body’s advice or recommendations are tantamount to decision making” — is subject to the open-meetings law. That pretty much defines the board of Iowa Public Radio.

Still one more thing: If you’re going to close public meetings and deny you’re a public body for open-meetings and open-records reasons, it’s probably best not to do that while the Legislature is pondering your appropriation for the coming year. …

And finally, this just in (if “just in” means two weeks ago) from the dimly lit newsroom of The Des Moines Register. “I think the editor is in the dark when he insists there are no burned-out lights.” If this all sounds mysterious, go back and read Civic Skinny from a few weeks ago. It’s not worth repeating. CV

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