Iowa agencies left to police themselves

Iowans have little way to monitor public officials’ compliance with transparency laws. Even if they do find possible violations, the state affords them few avenues to hold leaders accountable.

Take for example the Des Moines School Board.

It held a closed session in May citing the provision of Iowa law that allows it to close its meeting doors “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.”

The board met to discuss former Superintendent Nancy Sebring’s resignation and the appointment of an interim successor. Following the meeting, board president at the time Teree Caldwell-Johnson said during an on-camera interview that board members didn’t discuss Sebring’s performance and that she was not being appointed, hired or fired. By eliminating Sebring’s “appointment, hiring, performance or discharge,” Caldwell-Johnson eliminated the only legally permissible reasons for a closed meeting.

Caldwell-Johnson said the board’s discussion was about Sebring’s decision to speed her departure for her new job in Omaha, which later turned out to be untrue. When asked how Sebring’s reputation would have been harmed by a public session, the former board president said, “I don’t know if it would have caused anyone any harm. I think it’s just a procedural thing.”

Violating the law should never be procedural.

Iowa law clearly limits when a public body can meet in closed session. Yet, state lawmakers have failed to provide an efficient and cost-effective mechanism to investigate violations and force transparency on government agencies. That makes it hard for the public to know how public officials conduct taxpayer business.

If a closed meeting is questioned, a citizen must convince a judge to review a recording of the meeting. Otherwise, a school board decides itself if it followed the law. There is no alternative independent review process other than the state ombudsman’s office, which can only ask an agency to comply. The burden and upfront cost of taking a public body to court must be borne by the citizen or group. It is little wonder there have been so few challenges in Iowa.

I asked Geoff Greenwood, spokesman for the Iowa attorney general’s office, about cases involving the court’s review of closed meetings. Surely his office would have a readily available list of investigated complaints or cases involving questions about closed sessions in which the office has been involved.

Greenwood’s response?

“We don’t keep a list like that. I asked around and someone came up with a couple of cases tied to a University of Iowa presidential search. Not exactly apples-to-apples, but there are in-camera review components,” he said.

In-camera review is the method by which the court reviews the minutes or recordings of a public body’s meeting.

He referred me to two cases, one in 2007 and the other in 2009, both involving the Iowa Board of Regents and its hiring of the president of the University of Iowa.

After six years of debate, Iowa lawmakers last year created the Iowa Public Information Board, a nine-member panel composed of people representing government agencies, the public and the news media. It was meant as a way to put teeth in Iowa’s open government laws by having an agency devoted to helping citizens access public records or meetings.

Unfortunately, the board has no budget, is in the process of developing administrative rules and will employ only one staff member. Worse, it has no mandate to serve as an independent review panel.

Bill Monroe, the Public Information Board’s chairman and retired executive director of the Iowa Newspaper Association, took great pains to explain what the board won’t do during its second meeting.

“We are not a gotcha agency,” he said. “We are more of an agency where you can call for help and we will get you the right information.”

In other words, the new board cannot and will not investigate if a public body fails to follow the law. Short of a citizen lawsuit, which the Des Moines district now faces, public bodies still will police themselves.

Even though the comments made by the Des Moines board president and others clearly indicate the May meeting was improper, the school board quickly denied my request to release the audio recording. With the ACLU of Iowa as my legal counsel, I am following the procedure dictated by Iowa law and have asked the court to review the recording of the meeting. Two weeks ago we had our first hearing. It is unclear what will happen next, how many hearings will be involved or when the court will rule.

The process is cumbersome and puts the public body in a strongly advantageous position.

The courts should be unburdened of these fact-finding missions. Iowa needs to empower the Public Information Board to investigate closed meeting violations. Granting the board investigative power will put the rights of citizens ahead of the power of public bodies primarily interested in protecting themselves.

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Graham Gillette can be reached at grahamgillette@gmail.com 
This entry was first published as an Iowa Watchdog essay.