Going into tomorrow's mayoral and city council elections, citizens of Muscatine have no idea how much city leaders spent on the unsuccessful and unconstitutional attempt to remove Mayor Diana Broderson from office. Key internal correspondence related to the long-running power struggle and "kangaroo court" removal proceeding has also been shielded from public view.
City administrator Gregg Mandsager has thwarted records requests from local media by charging outrageous fees for obtaining documents or by redacting information from records provided.
Mandsager's approach has subverted the spirit of the open records law, raising more questions about the advice Muscatine officials have received from city attorney Matthew Brick.
Last month, a District Court vacated Broderson's removal from office after finding the city council’s “fundamentally unfair” actions violated the mayor's due process rights. Judge Mark Cleve's ruling made clear that Brick, a partner in Iowa's leading law firm for representing municipalities, advised council members on multiple occasions about strategies for dealing with the mayor. Brick drew up the written charges of removal against Broderson, after which the city hired outside counsel to play the role of independent prosecutor during the impeachment hearings.
While defending Broderson's civil lawsuit, the city of Muscatine appealed to the Iowa Supreme Court, seeking to prevent the District Court judge from considering tapes and transcripts from closed city council sessions.
As the political and legal battle intensified, several area journalists requested public records related to the conflict between the mayor and council, and/or the associated costs to the city. Under Iowa's open records law, I asked for copies of correspondence between city officials and news organizations regarding such records requests.
This file, which Mandsager provided on November 3, reveals several tactics used to avoid disclosing pertinent information.
SKY-HIGH FEES FOR PUBLIC RECORDS
WHBF-TV weekend anchor Ashley Richmond wrote to Mandsager in September 2016, requesting e-mails among various city staff and elected officials. Mandsager replied the following day,
Your open records request seeks nine (9) months' worth of emails, and a preliminary search of our network indicates that your request would include approximately forty thousand (40,000) email conversations that may contain anywhere from one hundred thousand to upwards or over two hundred and fifty thousand (100,000 - 250,000+) individual emails. Once the individual emails are collected, they will need to be reviewed by the City Administrator and many of the discussions would also need to be reviewed by the City Attorney for potential attorney/client, work product and/or confidentiality issues. Assuming two thousand (2,000) emails could be reviewed every day (to the exclusion of one's normal workload), and assuming there are only one hundred thousand (100,000) emails, it could take up to 50 days to complete the initial review of emails. Printing costs, not including staff time, for 100,000 emails would cost $25,000 alone.
Since the number of documents exceeds twenty-five (25) pages and staff time to respond will exceed thirty (30) minutes, you will be charged the hourly rate for the time spent by staff. The Clerk who makes photocopies and/or electronic copies has an hourly rate of $24 per hour, the City Administrator has an hourly rate of $70 per hour, and the City Attorney has an hourly rate of $150 per hour. The City will not waive the fees involved in responding to your request, and I am unable to provide an accurate estimate right now of the amount of time involved in preparing your request but it would be expected to cost hundreds, if not thousands, of dollars in staff time. Given the size of this request, in accordance with City policy, we will provide a bill prior to collecting the records, which will need to be paid prior to the release of the records.
When the Muscatine Journal's managing editor Kevin Jenison wrote in January 2017 to request incoming and outgoing e-mail for Mayor Broderson and for City Council Member Michael Rehwaldt, he received a similar letter back from Mandsager. This time, the administrator estimated a cost of $6,250 to print some 25,000 e-mails, not covering staff time to retrieve and copy the messages, or time spent by staff or the city attorney reviewing the contents for material not subject to disclosure.
In June, after Broderson had filed a lawsuit challenging her impeachment, WQAD-TV's Jenna Morton requested documents reflecting the amount the city of Muscatine had spent on legal fees associated with the effort to remove the mayor. Mandsager claimed the city had no records breaking down legal costs by topic, but he said copies of monthly attorney's bills could be provided for a cost of $412.50. The television station paid that fee during the first week of July.
Near the end of August, Mandsager informed Morton that an additional $864.25 was owed for twelve hours of his time, eight hours of secretarial time, and one hour for an attorney to review. Again, the station paid, eventually receiving 134 pages of billing records.
Randy Evans, executive director of the Iowa Freedom of Information Council, was "deeply troubled" by the city's handling of the requests, he wrote to Mandsager in early October. Evans noted that the Iowa Supreme Court has said the open records and open meetings laws "are intended to assure that the basis and rationale for government decisions is readily available to the public."
I worry that the charges the city levied against WQAD and quoted to WHBF were intended to put the price for these legitimate requests for public records out of reach. While Chapter 22 of the Iowa Code permits government bodies to recover their staffing and copying expenses when responding to public records requests, the law does not permit government to make a profit from filling these requests for copies.
Specifically, Chapter 22.3(2) states, in part: “...The fee for the copying service as determined by the lawful custodian shall not exceed the actual cost of providing the service. ... Actual costs shall not include charges for ordinary expenses or costs such as employment benefits, depreciation, maintenance, electricity or insurance associated with the administration of the office of the lawful custodian.”
In my opinion, the charges for the Brick Gentry billing statements and for the emails are unrealistic.
• Iowa law allows the city to recover “a reasonable fee,” but the $25,000 estimate for the emails means, in effect, it would take a city IT employee making $50,000 per year six months to retrieve and copy the emails WHBF sought.
• Concerning the Brick Gentry billing statements, it’s my understanding that you provided 134 pages of bills to WQAD. You informed the station that you spent 12 hours reviewing the statements; that your secretary spent 8 hours retrieving the statements; and that the city legal staff spent 1 hour reviewing the materials.
By my calculations, that means you spent nearly 5½ minutes on each of the 134 pages of billing statements and that your secretary spent an entire work day retrieving the statements from the city’s files.
The amount of time these tasks took is quite astonishing, frankly. I think the citizens of Muscatine would be very troubled to learn how much time your secretary and you supposedly took, first to gather and then to review and redact the materials WQAD sought.
Mandsager's fee demand appears to have deterred WHBF and the Muscatine Journal from pursuing their broad requests for e-mails.
WQAD's Morton learned that persistence was no guarantee of receiving useful information.
REDACTING BILLS TO OBSCURE LEGAL COSTS
"The city of Muscatine paid more than twice the amount for legal services in fiscal year 2016-17 than the previous year," Sarah Ritter reported for the Muscatine Journal in July. Ritter identified $269,837 in costs from July 2016 through May 2017, which doesn't include subsequent attorney's fees for work related to the lawsuit recently resolved in the mayor's favor.
As mentioned above, Mandsager told WQAD the city "does not maintain documents that contain a breakdown of [legal] costs by meeting, hearing, subject, topic, etc., so it does not have records showing the specific costs incurred by the City relating to [the] Broderson Removal" other than two documents showing some of the costs in 2016.
Morton revised her records request, and her employer paid the extra fee in mid-September. She eventually received several batches of heavily redacted bills from Brick Gentry. You can view one of the files here, but you won't be able to figure out how much the city spent trying to remove an elected mayor before the end of her term. As Evans wrote in a recent opinion column,
(a) it is impossible to calculate the total amount the law firm billed, (b) Mandsager removed the description of the attorneys’ work on all but one line, thus preventing citizens from determining whether the charges involve work on the impeachment or on other city matters, and (c) the city administrator decided to blank out the law firm’s charges on many pages. [...]
Mandsager justifies the redactions by claiming the details on the invoices involve the attorneys’ work product. Releasing the bills intact would violate attorney-client privilege, he claims.
That privilege belongs to the city, not Brick Gentry, and Mandsager could waive that privilege and make public the details if he wanted. Instead, he chose secrecy over transparency.
There is no justification for redacting the amounts Brick Gentry billed.
Morton reported for WQAD on September 19,
"That is weird, they should be able to have an itemized billing statement from their attorneys showing each task completed, how much time it took, and what the total charge was," said local attorney John Singer.
Singer says by state code, lawyers in both Illinois and Iowa are required to send detailed bills to their clients.
"There needs to be enough information to give the client an understanding of the work performed," said Singer.
Not only does the city council approve paying all of these legal bills, but they're paid for by the city's liability insurance, showing there should be a breakdown of costs available to the public.
"They have to be able to provide a detailed accounting of what the city spent its money on," said Singer.
Before filing that story, titled "Muscatine not revealing mayor impeachment costs to taxpayers," Morton e-mailed Mandsager on September 19 to ask about omissions from the documents provided to WQAD.
I'm wondering why we didn't get all of the information we requested? In our request we asked for "In particular, I request copies of legal invoices submitted to the City of Muscatine from attorney John Nahra and city attorney Matt Brick and Brick Gentry PC, as well as any invoices from any other lawyers or law firms who were involved in any way in the Broderson Removal. In addition, I request any documents reflecting staff time relating to the Broderson Removal," but instead we only got monthly payments for the city's attorney.
Brick Gentry fees represent only part of the legal cost of removing Broderson. The city hired Nahra to serve as the "special prosecutor" against the mayor. Amy Reasner defended the city against Borderson's lawsuit. The District Court judge later ordered the defendants (the city of Muscatine and its council) to pay the costs of Broderson's civil lawsuit. The mayor believes the city's expenses will exceed half a million dollars.
Mandsager told Morton in a short September 20 message that WQAD's attorney should contact the Muscatine city attorney to resolve matters related to the records request.
REFUSING TO "CREATE RECORDS" TO ANSWER QUESTIONS
Mandsager has repeatedly avoided providing information by noting that Iowa Code Chapter 22 does not require officials to create new documents in response to a records request.
Shortly after the council voted to remove Broderson, the Muscatine Journal's newsroom asked for copies of expense reports between January 2017 and May 2017, related to the impeachment process. Mandsager replied, "The City is not required to create records in response to open records requests, and a preliminary review of the City's records finds there are no expense reports responsive to your request."
In June, the newspaper submitted a revised request for "copies of all documents showing or evincing any and all costs" to the city associated with the impeachment. Mandsager replied with language nearly identical to what he told WQAD's Morton around the same time: "The City of Muscatine does not maintain documents that contain a breakdown of costs by meeting, hearing, subject, topic, etc., so it does not have records showing the specific costs incurred by the City relating to the impeachment of Diana Broderson [....]"
Evans wrote in his opinion column, "The law may not require [Mandsager] to make those calculations, but the law does not prevent him from answering the simple question many people are asking."
Mandsager had refused the Journal's request for e-mails about the impeachment sent between May 2 (the deadline for both sides to submit final evidence to the city council) and May 20 (a few days after Broderson filed her civil suit). The newspaper then asked for "a log identifying each email they are claiming to be confidential to date, parties involved, and the basis for their assertion that the document is confidential."
The city administrator replied that a search for responsive e-mails turned up only material protected by attorney-client privilege, one of the exemptions in Chapter 22. "As to your request for a privilege log, again there is no requirement that a city create documents in response to an open records request nor is there a requirement that a city produce a privilege log and, as a result, the City declines to do so."
In a long September 22 e-mail to Morton, Mandsager asserted that "The City firmly believes in open records and transparency." He also claimed,
WQAD received all of the information requested. The invoices are redacted and include the dates and associated fees for expenses related to the Mayor. To break the expenses down further would require additional research and time. Once again, you are reminded that the City is not required to create documents in response to an Open Records request.
Legal services are presently provided through our insurance provider. They are invoiced directly for services rendered.
In other words, we're all for transparency, we just won't lift a finger to tell citizens how much we spent to ditch their elected mayor.
THE CHOICE BEFORE VOTERS
In some ways, Mandsager succeeded in running out the clock. He kept the media from reporting details that would have given Muscatine residents a fuller picture of how the impeachment unfolded and how much the public will end up paying for this misadventure.
On the other hand, Muscatine's legal representatives failed to persuade the Iowa Supreme Court to intervene in the case, which would have kept the District Court from issuing a decision before tomorrow's election. They also failed to keep the District Court judge from reviewing transcripts of closed city council sessions. Those materials pointed to a number of due process violations. The Quad-City Times editorial board wrote on October 29,
City Administrator Mandsager's involvement was especially troublesome. He pulled the strings throughout this entire shameful affair. He bullied the council with threats of defamation lawsuits. He spent gobs of taxpayer cash suppressing release of public records, taking the matter to state Supreme Court. He sent thinly veiled ultimatums to critical media organizations on Muscatine letterhead. He flouted the public trust.
Mandsager spared no expense taking down a mayor he deemed a menace to his dominance over Muscatine City Hall. Mandsager's willingness to wage open conflict with an elected official is evidence of his total indifference to traditional governmental power structures. [...]
There's an election in Muscatine on Nov. 7. It's imperative that the new council either rein in Mandsager or show him the door. The latter would be a pricey affair, mind you. His termination would cost six-months' salary and pay for unused vacation, according to his contract. The price could skyrocket even higher, as Mandsager said on Thursday [October 26] that he's again mulling filing suit against Broderson and the city. His statement reads like someone begging for a settlement in exchange for his departure. Even so, six figures has already been spent on the crusade to override the voters and eject Broderson from office, a lawless campaign at the center of which Mandsager clearly sat.
The entire impeachment charade was an attack on the very concept of justice, all mounted under the banner of the citizens of Muscatine.
One mustn't be a Broderson disciple to be outraged by the total and utter lawlessness officials in Muscatine were willing to display to railroad the voters.
Broderson is up for re-election tomorrow, facing a candidate backed by the same old boys' network supporting the council incumbents.
Oz Malcolm is the pro-reform candidate in Muscatine's Ward 2. He has said the mayor's removal hurt citizens' faith and confidence in local government. In contrast, incumbent Michael Rehwaldt has complained about "the gross misunderstanding of most people about the situation."
Four new candidates are running for city council in Ward 4. At least two of them have spoken critically of the way the council handled its dispute with Broderson.
In the at-large council race, Kelcey Brackett is one of two challengers facing incumbent Scott Natvig. Brackett posted recently on Facebook,
I am disappointed. We were told that to have the best legal counsel we needed to hire Matt Brick, that no local or even regional attorneys would do. We were told this would make sure we followed the very specific complicated laws that municipalities are burdened with. Yet here we are.
It is correct that the Judge's ruling does not address the various charges that Matt Brick, Gregg Mandsager, Tom Spread, Allen Harvey, Bob Bynum, Santos Saucedo, Scott Natvig, Phil Fitzgerald, And Michael Rehwaldt brought forth. What it does address, is the illegal way in which they conspired to bring about those charges. Santos and someone in control of the city website are currently trying to spin it that the Mayor won on a loophole, no, the mayor won because the council violated the law.
We need to move past this mess and get back to making progress and positive headlines. We need new leadership in City Hall.
Natvig is unrepentant, telling the Muscatine Journal that "the biggest issues related to the mayor removal were the inaccurate perception of council's actions, no resolution of the merits of the case, and shortcomings in the State Code."
Brackett was on target when he told the newspaper,
After reading the file released by the court, I am disgusted by the actions of the city attorney and city administrator. They led us down a very expensive and divisive path and I am disappointed the current council followed them blindly. What appeared wrong to so many people at the time, has been publicly affirmed by the judge’s ruling.
We need to seek new legal representation for the city. We need a full review of the city administrator. We need to fix the administrative issues that led to the loss of two closed session tapes. We need to review all changes to city code that have occurred under our current administrator, and most importantly we need to verify they have not caused harm to us, the people of Muscatine.
Brick Gentry boasts of particular expertise in "Guiding city officials and staff through the complex legal and business issues." But in this case, officials following the city attorney's advice used unconstitutional means to remove the mayor. And because Mandsager, backed up by Brick, has refused to release legal bills in a useful format, the scale of this "very expensive" debacle is still unknown.