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How 'open and transparent' is government really?

The Akron Hometowner of Akron, Iowa

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Why is it that news reporters can be found at many, if not all, governmental meetings?

The reason is twofold.

First, it is so they can report the happenings to their readers and/or viewers.

News reporters take the actions of governmental entities--from township and city councils, planning & zoning boards, county commissioners and supervisors to state and federal agencies -- and write explanatory stories about the happenings so there is a clear understanding of what happened. Otherwise, citizens would only have the information those entities provide in legal notices such as published meeting minutes.

Second, news reporters hold governmental officials accountable for their actions so that the United States of America can remain a democracy as Abraham Lincoln said in the Gettysburg Address: "...that government of the people, by the people, for the people, shall not perish from the earth."

It is the duty of every citizen to see that our governments remain an open democracy but often news reporters are the voice for the citizens of their communities.

One of news reporters' main duties in covering governmental activities is making sure the Open-Meetings and Open-Records Laws are followed.

History has proven beyond any doubt that government officials often ignore these laws -- whether it is due to ignorance of the laws or it is by choice.

One only has to review stories of the Watergate Scandal of former President Richard Nixon to know how easy it is for governments to become corrupt. Or even closer to home was the Central Iowa Employment and Training Consortium (C-Tech) scandal, and now, the Iowa Association of School Boards ' financial scandal.

It happens at every level of government from time to time.

In the last few months, The Akron Hometowner has investigated several things that just didn't appear quite right at area governmental meetings.

In two of the situations what was on the entity's agenda and what the news reporter saw didn't match what was published in the entity's meeting minutes.

A-W School Board Dec. 14, 2009 meeting

At this Akron-Westfield School Board meeting, the agenda stated there would be one closed session pursuant to Iowa Code Section 21.5(1)(i), which is "to evaluate the professional competency of an individual whose performance is being considered to prevent needless and irreparable injury to that individual's reputation as the individual has requested a closed session."

However, the published minutes of that meeting stated there had been two closed sessions under the same Iowa code with the board taking action in an open session between the two closed sessions.

"Before going into closed session, I didn't realize I didn't appoint a temporary secretary," said Akron-Westfield School Board President Jim Black in a phone interview.

Not only having a closed session not listed on the agenda but board taking action on an item not listed on the agenda was unusual for the A-W School Board but it raised the question of whether they had violated Iowa laws and whether it was legal for the board to dismiss their board secretary and appoint a board member as the temporary secretary for a closed session.

Furthermore, it was the first time the A-W School Board had dismissed Board Secretary Jodi Thompson from a meeting, and a poll of publishers attending an Iowa Newspaper Association publisher's meeting in February revealed it was very rare to do so in Iowa.

Since A-W Board President Jim Black was elected in 2001, there has only been one other time a temporary board secretary was needed and that was when Thompson was ill.

The board dismissed Thompson from the Dec. 14, 2009 meeting and the Jan. 13 meeting before going into closed sessions under the Iowa Code of Chapter 21.5(1) (i), which is "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."

Thompson told The Akron Hometowner the closed session was not about her individual performance and she had been instructed not to attend the closed session.

"By policy we have the authority to do so," said Black, adding he didn't know of any other school district using this authority.

When The Akron Hometowner asked for the individual's name to confirm that it was one closed session as the agenda stated and not two separate individuals being evaluated, Black said he would have to check with the district's policies and the district's attorney as he felt the names were not public record. He suggested The Akron Hometowner contact each of the other six board members for verification.

Once this board appoints a temporary board secretary, that person has been responsible for the rest of the meeting although the Dec. 14 published minutes didn't reflect that.

In addition, the Jan. 13 meeting minutes were corrected at the Feb. 15 meeting because there was no time on the tape of when they came back into open session following the closed session nor the time the meeting ended. Times had been printed in the published minutes but apparently were not right.

The Akron Hometowner asked if it was legal to have the board secretary who was dismissed from the meeting be responsible for the whole meeting's legally published minutes. A suggestion was made to note in the published minutes when the board secretary was dismissed and the temporary board secretary be responsible for the minutes during her time as board secretary. Black stated he would look into this.

When asked if the school board would dismiss its board secretary at future meetings, Black said he didn't know.

On March 8, Thompson was dismissed again for a closed session for an employee's performance evaluation. The appointed secretary all three times was Board Member Deb Jordt.

Jan. 26 and Feb. 23 Akron Council Meetings

At the Jan. 26 meeting, the Akron councilors came out of closed session and took action on a matter that was not listed on the agenda and didn't match the Iowa Code listed for the closed session.

The Akron Hometowner asked that this action be done correctly as it appeared to be in violation of the law.

At the Feb. 9 meeting, City Attorney David Stuart revisited the matter, which regarded employees' insurance.

The closed session had been for an individual employee's job performance evaluation but the reasons for the closed session given were overtime and insurance. The councilors' took action afterward allowing all employees' spouses, who had been previously excluded from the city's insurance plan because the spouses had their own insurance through their jobs, to be allowed back on the city's insurance plan.

Stuart explained the council had taken action to eliminate spouses who had their own coverage during a period of time when the city had insurance which rated each member covered individually.

"We had eliminated any spouses who had that (double) coverage," said Stuart. "That had a cost savings to us."

The city's current insurance rates the employees as a group, he said. "The only distinction is you are either single or family. Adding a spouse does not change the cost whatsoever to the city and actually it's a benefit to those individuals. They can pick up some cost savings on co-pays where the second insurance company will pay the co-pays and chip in on certain circumstances."

The city had been reimbursing an employee for the amount it personally cost him not to have his spouse on the city's insurance, said Stuart.

"So what we're doing is twofold," said Stuart. "We're eliminating that reimbursement -- he is no longer getting reimbursed for those uncovered costs, and we're also allowing any other employee of the city that has this policy and whose spouse was previously excluded (to be on the city's insurance plan)."

"We may have to look at that again in the future if we can no longer be rated as a group," said Stuart.

Councilor Sharon Frerichs made the motion reaffirming the council's Jan. 26 motion, and Councilor Chad Ericson seconded it. The vote was unanimous, 3-0, with Councilors Bob Frerichs and Barbara Johnson absent.

"If this was not a collective bargaining negotiation session or strategy session under Iowa Code Section 20.17, then there was no basis for discussing the matter in closed session," said Iowa Newspaper Association Legal Hotline attorney Joseph A. Quinn. "Section 21.5 (1) (i) would not apply to a general discussion about changing benefits for an entire group."

At the Feb. 23 council meeting when discussing the hiring contract of Police Officer Jared Gares, there was a question of whether his insurance benefits could be discussed in open session. Ericson didn't think they could discuss why the city was paying for Gares' insurance premiums instead of putting him on the city's policy in open session.

Union County Planning & Zoning - Dec. 17, 2009

It is not just news reporters but individual citizens have the right and duty to hold their governmental entities accountable.

In December, Vermillion, S.D., developer Sean Brady was granted a Conditional Use Permit to open a bar on the former Garryowen Church property on South Dakota Highway 48 near Interstate 29 by the Union County Planning & Zoning Board. Brady also received approval for rezoning a portion of this agricultural land to commercial zoning.

On Feb. 23, Doug Maurstad of Alcester, S.D., asked the Union County Commissioners to table any action on the second reading of an ordinance for rezoning of this property because Union County's 2008 Revised Zoning Ordinance Section 2204 (A) states:

"An application for a Conditional Use Permit, available from the Planning Director, shall be completed by the landowner requesting the Conditional Use Permit."

Brady is not the owner of this land; he is the prospective buyer.

After calling a special executive session with States Attorney Jerry Miller, Commission Chairman Doyle Karpen said they would have the second reading and take action on the Brady's rezoning because it is not part of the Conditional Use Permit action.

Commissioner Ross Jordan made the motion to approve rezoning of this property and Commissioner Marvin Schempp seconded it. The vote was 4-1 with Commissioner Milt Ustad dissenting.

The commissioners say they do not have authority over Conditional Use Permits. After this meeting, Commissioner Dale Neely, who is also the county's Planning & Zoning Board liaison, told The Akron Hometowner the Planning & Zoning Board would be reviewing the Conditional Use Permit action.

However, on April 5 in a phone conversation, Neely said it probably would not be put back on the agenda because there were extenuating circumstances with the Conditional Use Permit -- that the permit was contingent on Brady purchasing the land and getting a liquor license. Neely said the board should have some leeway in such matters.

This is the second time in just a few months that the Union County Planning & Zoning Board has taken actions, regardless of what their own 2008 Revised Zoning Ordinance states.

States' Legislation

During this legislative session, the Iowa Legislature considered a bill, House File 777, which would create a new enforcement agency to deal exclusively with open-records and open-meetings complaints at no cost to the complainants.

The agency would have had the authority to:

Issue subpoenas enforceable in court for the purpose of investigating complaints;

Issue orders determining whether there has been a violation of Iowa Chapters 21 or 22, requiring compliance with specified provisions of those chapters, imposing civil penalties;

Make training opportunities available to all governmental bodies and the public; and

Make recommendations to the Governor and the General Assembly relating to issues involving public access to meetings and records of a government body including, but not limited to, recommendations relating to public employment applications; tentative, preliminary or draft material; and serial meetings of less than a majority of a governmental body (where one board member talks to another board member who talks to another before meetings instead of discussing matters in open sessions during meetings).

Serial meetings are popular in this area as one local elected official has said, "It's what we have to do because the meetings are public."

But serial meetings don't keep government a democracy -- it becomes government of a few elected officials, by the elected officials, for the elected officials.

This Iowa legislative bill was defeated. However, during this past South Dakota Legislative Session, Senate Bill 104 was passed, strengthening openness of government throughout the state. It remains to be seen how local governmental entities will act toward this new law.

The bottom line is that it is still up to news media and individual citizens to investigate and hold governmental officials accountable to the Open-Meetings and Open-Records Laws so that our government remains a democracy of the people, by the people and for the people.

How government keeps you in the dark

Editor's Note: Published April 2, 2010 by The Des Moines Register and reprinted with permission.

There was much wailing and gnashing of teeth during the just-completed legislative School Boards executives' apparent misuse of tax dollars. Yet lawmakers who call for transparency in government once again flinched when presented with an opportunity to provide it.

A bill on the agenda for four successive legislative sessions, which the Senate passed for at least the third time, was killed at the last minute in the House. The bill would have created a new Iowa Public Information Board to enforce Iowa's open meetings and open-records laws.

This might have been the last gasp of a legislative effort dating back to a 2006 bipartisan, bicameral legislative study. It is evidence of the lamentable failure of legislators, the governor and public officials at every level to do more than talk about transparent government.

The irony is that government officials are handmaidens to the repeated failure to put in place stronger open-records and open-meeting laws in Iowa.

Here's why this is ironic: The taxpayers of Iowa -- the people who make government possible and who are supposed to be served by government -- end up paying for the privilege of having government officials and lobbyists work against their interests in the Legislature. Think about that: Your money is spent by your government to prevent you from knowing more about what government supposedly does on your behalf.

The list of government leaders who want to have this issue both ways includes Gov. Chet Culver, who talks a good game about open government, but whose first instinct in response to a records request is to lock up his office files.

It includes the associations that represent cities and counties, which live off taxpayers' money but oppose at every turn stronger enforcement of "sunshine" laws.

It includes the three state universities, which quietly lobby lawmakers to kill legislation that would open more university records or meetings to the public.

It includes Attorney General Tom Miller, whose office pretends to be all for more "sunshine" in state and local government, but in fact is more worried about protecting his office's turf than supporting a new state board to enforce the open-meetings and open-records laws.

There are exceptions, including Democratic leaders in the Iowa Senate who have long supported the open-government bill that died this week. They include Senate Majority Leader Mike Gronstal and Sen. Pam Jocum, both of whom have fought for a better law. Unfortunately, both those efforts have been consistently frustrated in the House under the leadership of Speaker Pat Murphy and Majority Leader Kevin McCarthy.

The arrogance of state and local government leaders that government knows best what the public should know is especially hard to understand in the current environment where people at the grassroots level are increasingly angry about government. So perhaps this year, as politicians ask for the support of voters, they will be asked: Which side are you on when it comes to transparent government, the people or the bureaucracy?

Copyright 2010 The Akron Hometowner, Akron, Iowa. All Rights Reserved. This content, including derivations, may not be stored or distributed in any manner, disseminated, published, broadcast, rewritten or reproduced without express, written consent from SmallTownPapers, Inc.

Original Publication Date: April 28, 2010

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