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Jim Lewers, Regents Jeopardized Open Government

Mike McWilliams, Press-Citizen Sues Board of Regents

Brian Morelli, UI Late on Open Records Request

PC-Requests

Brian Morelli, Culver May Appoint Four New Regents

[Note: This material is copyright by the Press-Citizen, and is reproduced here as a matter of "fair use" for non-commercial, educational purposes only. Any other use may require the prior approval of the Iowa City Press-Citizen.]

The Iowa state Board of Regents' recent weeklong "meeting" jeopardizes open government in our state.

It's that simple.

Instead of adjourning from their regular meeting Nov. 9 in Ames, the regents continued to meet in secret several times over the next week, part of that time interviewing candidates for the University of Iowa presidency. It wasn't until Nov. 17, when the president search was initially suspended, that we discovered the regents had met on the sly.

The regents use childish logic to justify meeting in secret: Hey, we never adjourned!

I think the regents broke the law that requires governmental boards to conduct business in public. Iowa law requires groups such as the regents to tell the public when, where and why they are meeting before the meeting.

We understand some discussions might need to be private, with some personnel matters, for example. But that doesn't mean the board can undermine free access to government at a whim.

Our concern about the weeklong "meeting" goes far beyond the current UI president search and the issues surrounding it.

Again, this is a simple, common-sense issue.

As a citizen, would you want your representatives discussing important public issues -- perhaps a tax increase or a school boundary change or a road dispute -- in secret?

If the Board of Regents action stands, that could happen. Public boards could just never adjourn. And if they are always meeting, there is no oversight.

That oversight and the principle of open government are too important for us to ignore this situation.

We've editorialized that this rolling meeting is a terrible precedent that cannot stand.

We had hoped that someone in state government -- Gov. Tom Vilsack, the attorney general's office or perhaps the regents themselves -- would admit that the rolling meetings were improper and discourage other public boards from using the tactic. That hasn't happened, although Gov.-elect Chet Culver has said he will look into possible open meetings law violations and Regent Bob Downer, an attorney, has said he will not participate in closed sessions that aren't continuous because he has concerns about the law.

While it appears others are comfortable letting this stand, at least for now, we think this is too important. Thursday, the Iowa City Press-Citizen filed a lawsuit against the Board of Regents for violating the state's open meetings law.

In our suit, filed by attorney Paul Burns of the Bradley & Riley law firm, we are asking a judge to make it clear that the rolling meeting tactic is illegal and that the weeklong "meeting" was, in fact, several meetings. By not providing public notice of those meetings, including time, date, place and agenda, we believe the regents have broken the law.

It's important to note that public boards are required to provide public notice even for closed meetings. They must specify why they are going into closed session and vote to do that. Those requirements provide some accountability even for closed meetings, and that's the way it's supposed to be.

We also are alleging that the regents discussed matters in closed session that they should have discussed in open session. We hope that a judge will review minutes and tapes for several sessions from Nov. 6 to Nov. 17. The minutes and tapes are required even for closed sessions.

If the court finds that the regents violated the open meetings law, the law requires that it determine whether the individual regents will be fined. The law also requires the regents to pay reasonable legal fees and order the regents not to violate this law again.

That's what this case is about: to ensure Iowa government is open and to keep it that way.

The Iowa City Press-Citizen sued the Iowa state Board of Regents on Thursday, alleging it violated the state's open meetings law during several unannounced closed-session meetings involving the search for a new University of Iowa president.

The three-page lawsuit was filed in Polk County District Court in Des Moines. It contends the regents met in closed session several times from Nov. 10 to Nov. 17 on matters that are required to be conducted in open session. The regents also provided no public notice of time, date, place or tentative agendas, which Iowa Code requires, for closed-session meetings on Nov. 10, Nov. 11, Nov. 14, Nov. 15 and Nov. 17, the lawsuit argues.

"If the regents' rolling meeting tactic is allowed to stand, any public board in Iowa could just not officially adjourn and then discuss public business without the public knowing it," Press-Citizen managing editor Jim Lewers said. "We can't allow a rolling meeting like this or the entire open meetings law will become a joke."

The nine-member board convened at least twice in person and other times by phone before opening in closed session Nov. 17 for a telephonic interview. They adjourned following that meeting, in which the board voted 6-2 to reject four candidates for UI president and dissolve the presidential search committee that recommended them.

Regents President Michael Gartner of Des Moines declined comment on the lawsuit Thursday because the matter is in litigation, he said. Regent Bob Downer of Iowa City also declined comment. Other regents and board executive director Gary Steinke did not immediately return e-mails or phone messages seeking comment.

Some regents have said they were under the impression that they were not breaking the law. Officials in the Iowa Attorney General's office have said four lawyers advised the regents before they conducted the meetings in question. Since the meetings, Downer has said he would not participate in rolling meetings until the issue was clarified.

Lewers said the Press-Citizen seeks to dissuade other public boards from conducting rolling meetings and have a judge order the regents to refrain from further violations of the law. It also seeks fines totaling no more than $500 for each regent and judicial review of the regents' tapes and minutes to make sure what they discussed was appropriate for closed session.

Kathleen Richardson, Drake University journalism professor and secretary for the Iowa Freedom of Information Council, called the regents' actions "a very muddy situation," and "certainly unorthodox." However, Richardson said she's not certain regents violated the letter of the law through the rolling meetings.

"There's nothing specific in the law that says they have to adjourn a meeting, but certainly the intent of the law is to keep citizens informed about what a government body is doing and the basis and rationales for their decisions," Richardson said. "Activities like this, holding closed meetings that lock the public out for days at a time, certainly would be contrary to that."

The failed UI presidential search resulted from a seven-month, $215,000 process to replace David Skorton. Skorton left UI in June to become president of Cornell University in Ithaca, N.Y.

The regents restarted the presidential search Monday by picking UI College of Dentistry Dean David Johnsen to lead the next search.

Johnsen's appointment came less than a week after groups, including the UI Faculty Senate, UI Staff Council and UI Student Government overwhelmingly passed resolutions to show no confidence in regents leadership. Regent Tom Bedell of Spirit Lake also resigned last week amid fallout from the failed search.

The University of Iowa violated the Iowa Open Records Law by not fulfilling in a timely fashion a Press-Citizen request for correspondences to and from University Hospital Director Emeritus John Colloton.

The Press-Citizen is seeking the records requested Nov. 29 because of a tip that suggests the correspondence might contain newsworthy information, some of which is regarding the University of Iowa presidential search.

Colloton, who was named director emeritus in 2001, was the University Hospitals director and CEO from 1971 to 1993. He has been on the Wellmark Board of Directors since 1974, served as the board chair from 1993 to 2000, and as the lead director since 2000. He maintains an office in the John Colloton Pavilion on the University Hospitals medical campus in Iowa City.

Colloton did not respond to e-mails or phone messages left Thursday.

UI surpassed the 20-day waiting period, a violation of Iowa Code 22.8.4.d that states it has 20 calendar days to determine whether those materials should be available for public inspection.

"We acknowledge that we are past the 20 days. The statute says that should be the longest it should take," UI spokesman Steve Parrott said Thursday. "We've tried to do the best we can over the years to deal with public records request in due time. We always try to keep in touch with the person who requested them and let them no what the holdup is."

UI communicated with the Press-Citizen regarding this request. However, UI is past the 20-day limit because UI's general counsel still is awaiting advice from the Iowa Attorney General's office, the ultimate legal representative for UI, which it has been seeking for more than a week, Parrott said.

Parrott said he didn't know exactly what the holdup was, but said there were some questions about what should be released and what part of the code should be cited if they were not released.

"We are just waiting for direction as to where to go," he said.

Eric Tabor, the chief-of-staff for the attorney general, acknowledged that his office has been advising UI, but said the office has not yet reached a decision.

Tabor said his office is awaiting documents that he said would come this morning.

"I hope to have a determination on that (today) or the first of next week," Tabor said.

When asked why there was a delay, Tabor said, "I would rather not go into the specific facts of what we are dealing with."

The Press-Citizen made a separate records request to the Iowa state Board of Regents on Nov. 29, and narrowed that request Nov. 30. The narrowed request asked for correspondences to and from Regent Executive Director Gary Steinke, Chief Business Officer Pamela Elliot Cain, Regent President Michael Gartner and Regent President Pro-tem Teresa Wahlert with several people including Colloton, Gov. Tom Vilsack and UI Interim President Gary Fethke.

Steinke said by phone Thursday that he and Cain had no such materials and that he still was waiting for a response from Gartner and Wahlert. Steinke noted in a Nov. 29 e-mail that the request was broad and could take more than a month to complete.

Gartner said in a phone call Thursday night that the only documents he had were e-mails on the topic of "outliers," a category of medical patients. The e-mails were exchanged with University Hospital Director and CEO Donna Katen-Bahensky and former CFO Anthony DeFurio. He said he temporarily misplaced those documents, but would provide them as soon as possible.

Wahlert could not be reached for comment on her home phone or cell phone late Thursday.

• P-C request to UI made on Nov. 29: "I write to request access to and a copy of correspondence (including e-mails, faxes, letters, documents, etc.) from John Colloton transmitted to or received from one or more of the following persons: Donna Katen-Bahensky, Anthony DeFurio, Linda Everett, David Skorton, Gary Fethke, Michael Gartner, Teresa Wahlert, John Kasonic, Willard (Sandy) Boyd, Jim Merchant, Jean Robillard, Richard Knapp, Robert G. Petersdorf, Marvin Pomerantz, Amir Arbisser, Bob Downer, Peter Densen, John Forsyth and Tom Vilsack from January 1, 2004 to present."

• P-C request to Iowa state Board of Regents on Nov. 29 and revised on Nov. 30: "I write to request access to and a copy of correspondence (including e-mails, faxes, letters, etc.) concerning University Hospitals, Carver College of Medicine, or UI Health Care from Gary Steinke, Pam Elliott Cain, Michael Gartner and Teresa Wahlert transmitted to or received from one or more of the following persons: Donna Katen-Bahensky, Anthony DeFurio, Linda Everett, David Skorton, John Colloton, Gary Fethke, John Forsyth, Jean Robillard, Jim Merchant and Tom Vilsack from October 1, 2005, to present."

Iowa Code Chapter 22.8: Injunction to restrain examination:
• Section 4: Good faith, reasonable delay by a lawful custodian in permitting the examination and copying of a government record is not a violation of this chapter if the purpose of the delay is any of the following:
• Subsection d: To determine whether a confidential record should be available for inspection and copying to the person requesting the right to do so. A reasonable delay for this purpose shall not exceed twenty calendar days and ordinarily should not exceed ten business days.

Iowa Code Chapter 22.1: Definitions
• Section 3: As used in this chapter, "public records" includes all records, documents, tape, or other information, stored or preserved in any medium, of or belonging to this state or preserved in any medium, of or belonging to this state or any county, city, township, school corporation, political subdivision, nonprofit corporation other than a county or district fair or agricultural society, whose facilities or indebtedness are supported in whole or in part with property tax revenue and which is licensed to conduct pari-mutuel wagering pursuant to chapter 99D, or tax-supported district in this state, or any branch, department, board, bureau, commission, council, or committee of any of the foregoing, "Public records" also includes all records relating to the investment policies, instructions, trading orders, or contracts, whether in the custody of the public body responsible for the public funds or a fiduciary of other third party.

Gov.-elect Chet Culver is looking to change the tone of the Iowa state Board of Regents and it is still to be decided whether that means four fresh faces, Culver's spokesman Brad Anderson said Thursday.

"Right now, he is looking for a change of tone for the regents," Anderson said. "He is looking for some new regents. Whether that is four new regents, that hasn't been decided."

Culver will be faced with the possibility of replacing four regents when he takes office Jan. 12. The terms of regents Amir Arbisser of Davenport, Teresa Wahlert of Waukee and Mary Ellen Becker of Oskaloosa are expiring. Tom Bedell of Spirit Lake has resigned.

Arbisser and Becker have said they would like to be reappointed. Regent President Pro-tem Wahlert, who has been under fire for her handling of the University of Iowa president search, has said she is unsure whether she wants to be reappointed. Wahlert only has served on the board for a year and a half.

Gov. Tom Vilsack appointed all nine regents.

"It is pretty uncommon to start your term with four regents to appoint," Anderson said. "He is just looking for the most qualified people right now, and people that share his vision. Right now, one of his biggest issues is openness."

Culver will not seek the resignation of Regent President Michael Gartner, who has been the subject of seven no-confidence votes.

"It is up to Michael Gartner, (Gov. Vilsack) and the regents as to whether he steps down," Anderson said.

Arbisser said with the high turnover of regents recently, a new governor and new key administrators at the state universities, his experience would be valuable to the new board. However, he said he understands if Culver chooses to replace him.

"It is his prerogative to put people on the board," Arbisser said Thursday.

Regents are appointed to six-year terms, and they are staggered such that three terms expire every two years.

Culver must submit nominations to the Iowa Senate by March 15.

The initial seven-month, $215,000 search ended Nov. 17 when regents voted down four finalists.

A new search got under way Monday with the naming of UI College of Dentistry Dean David Johnsen as the chairperson.