Fighting city hall on the state level

Exclusive reporting by Marty Ryan on his efforts to hold the Iowa Board of Corrections accountable for failing to follow state law. -promoted by Laura Belin

“You can’t fight city hall,” the saying goes. It means you may get more gratification from beating your head against a wall than from fighting with government bureaucratic processes.

I have fought city hall, but I think I can count the successes on one finger. My recent challenge to secure a win for common sense was beat back last month when the Iowa Public Information Board dismissed the complaint I had filed against the Iowa Board of Corrections in July.

Iowa Code Section 904.105 says one of the duties of the Iowa Board of Corrections is to “[r]ecommend to the governor the names of individuals qualified for the position of director when a vacancy exists in the office.” That is not a suggestion. The Code section begins, “The board of corrections shall:” followed by a list of duties.

However, when the Department of Corrections had no director earlier this year, the Board of Corrections never made a recommendation for filling the vacancy.

I had been waiting for the board to convene in a regular meeting to discuss the qualifications of applicants to replace Department of Corrections Director Jerry Bartruff, who retired last December.

Shortly before Governor Kim Reynolds announced she had picked Beth Skinner for that position, I contacted an employee within the department to find out what was going on with the appointment. Evidently, the “only” person who could tell me how the board was proceeding was not available until mid-week. I left a message. He never returned my call, but a person on staff did – after the announcement of the new director.

COINCIDENCE?

Reynolds named Skinner to lead the Department of Corrections on June 3.

I thought it suspect that the news arrived on the first day of the trial in former Workers’ Compensation Commissioner Chris Godfrey’s case. He had sued Governor Terry Branstad and other officials after Branstad tried to force him out of his job before the end of his term, and cut his pay to the minimum allowed by law. Godfrey is a gay man, and his lawsuit claimed discrimination and retaliation. Beth Skinner and her wife have three children. To my eye, announcing a lesbian as a department head as that trial began seemed like a politically-motivated, well-timed action by Reynolds, who was originally a defendant in the Godfrey case (but dropped before trial).

The news release announcing Skinner’s appointment didn’t mention that that Katrina, Beth’s spouse, holds an executive position within the department as a director of re-entry and treatment services. Iowa’s anti-nepotism law doesn’t apply to this matter. Nonetheless, the relationship should have been brought up during the vetting process.

Before being appointed director, Skinner was the agency’s deputy Director of Risk Reduction. Recidivism increased during her time in that job, but it’s not clear whether that was discussed while her application was considered.

Because the deliberations over possible directors happened in secret, the public can’t learn which candidates were deemed to be better qualified than the others. The public does not even know who else applied to lead the department. Those matters are essential to transparency in government, and essential to the process of choosing the best candidate.

Iowa Code Section 904.107 says the Department of Corrections director “shall be appointed by the governor subject to confirmation by the senate and shall serve at the pleasure of the governor.” The remainder of the same code section states that

The director shall be qualified in reformatory and prison management, knowledgeable in community-based corrections, and shall possess administrative ability. The director shall also have experience in the field of criminology and discipline and in the supervision of inmates in corrective penal institutions. […] The director shall not hold any other office under the laws of the United States or of this or any state or hold any position for profit and shall devote full time to the duties of office.

THE BOARD’S BUNGLED PROCESS

Even if one assumes Skinner was well qualified for her promotion, her path to the job raises questions.

At the Board of Corrections meeting in April, I was assured the board would follow the law and recommend candidates to the governor. Acting Director Dan Craig met with me the minute I walked in the door that day. He knew I was concerned the correct process might not unfold, based on what happened when Bartruff became director several years earlier.

After Bartruff’s appointment had been announced, I informed the Board of Corrections members during a public comment time at one of their meetings that the board had the duty and responsibility to recommend qualified applicants to the governor. I cited the code section (§904.105) and witnessed several board members writing it down. They seemed shocked that they were never told about this legal requirement.

Back to this year’s search. The Board of Corrections chair emailed Paul Trombino, chief operations officer in the governor’s office, on May 1 to let him know “a subcommittee” of the board recommended five candidates for Department of Corrections director (Jim McKinney, Beth Skinner, William Hill, Brian Foster, and Alan Finnan).

The board met two days later, but there was no mention of the recommendations in the agenda for that May 3 meeting. The minutes likewise indicate that the board did not discuss or ratify the recommendation.

Three board members–Chair Rick LaMere, Dr. Mary Chapman, and Larry Kudej–supposedly vetted all candidates for department director. But evidently, they never did so in an open meeting. The subcommittee’s recommendations were never brought before the board for a vote.

Iowa law does not allow a subcommittee to deliberate in a closed meeting and pass the recommendations on to the governor’s office. The law specifically requires that the board, in its entirety, make the recommendations to the governor in an open meeting. “The Board shall [r]ecommend to the governor the names of individuals qualified for the position of director when a vacancy exists in the office.”

THE COMPLAINT

I filed a complaint with the Iowa Public Information Board, claiming that the three Board of Corrections members acted as the full governmental body to make a statutory decision without timely public notice and a tentative agenda, thereby violating Iowa Code Section 21 (the open meetings law).

21.2 Definitions. As used in this chapter:

1. “Governmental body” means: a. A board, council, commission, or other governing body expressly created by the statutes of this state or by executive order.

2. “Meeting” means a gathering in person or by electronic means, formal or informal, of a majority of the members of a governmental body where there is deliberation or action upon any matter within the scope of the governmental body’s policy-making duties.

If this precedent is left unchallenged, cronyism may take root, and the Board of Corrections may ignore state law the next time there is a vacancy at the top of the department.

My complaint laid out the facts described above, adding that the meeting to vet potential candidates for the position of director was “a gathering in person or by electronic means, formal or informal.” Although a majority of Board of Corrections members were not present, “there [was] deliberation [and] action upon [a] matter within the scope of the governmental body’s policy making duties,” to wit: “to “[r]ecommend to the governor the names of individuals qualified for the position of director when a vacancy exists in the office.”

I do believe the governor had the authority to name Beth Skinner as Department of Corrections director. However, the meeting at which the board considered applicants was illegal, since it lacked notice to the public to meet, post a tentative agenda, or provide a quorum to conduct business.

THE FIRST DISMISSAL

Iowa Public Information Board staff initially recommended dismissing my complaint because “there was no meeting of the [corrections] board.”

Perhaps a gathering of three Board of Corrections members was not a meeting as defined by Section 21.2(2). However, all admit that a gathering took place in which deliberation and action occurred. Three members of a seven-member body do not constitute a quorum. But we don’t know whether anyone else was present during the closed meeting. (No minutes were recorded.)

If a fourth board member had been present, even if that person did not participate and vote on candidates for Department of Corrections director, the gathering would trigger open meetings law requirements. How would the Public Information Board approach that situation?

I argued that any investigation of these circumstances had not been thorough enough. The Public Information Board’s draft order dismissing my complaint was based on an assertion by the legal counsel for the Board of Corrections. There is no evidence on whether notice was given, no evidence on whether minutes were recorded or other notes taken by participants, no evidence of facts such as who called the gathering and who led the discussion. How can anyone determine whether a meeting occurred?

I pleaded with the Public Information Board that dismissing my complaint on this kind of thin evidence would ignore the intent of the open meetings law.

This chapter seeks to assure, through a requirement of open meetings of governmental bodies, that the basis and rationale of governmental decisions, as well as those decisions themselves, are easily accessible to the people. Ambiguity in the construction or application of this chapter should be resolved in favor of openness.

The decision-making process by a minority of the corrections board was not accessible to the people. And most importantly, a decision was made. Not just any decision, but a decision that falls within the scope of the board’s duties and requirements. I contended that Iowa Code Section 904.105 must be taken into consideration when determining whether the open meetings law was violated.

Either in person, by phone, or electronically, some kind of discussion led to an agreement on finalists for the department director’s job. What is a gathering of people for the purpose of discussion and action called, if not a meeting?

Citing a recent Iowa Supreme Court case relating to open meetings, I argued that the Public Information Board had failed to “make factual findings necessary to determine whether the gatherings” of the Board of Corrections constituted meetings under Iowa law. This subcommittee of three Board of Corrections members may have met with the express intent to avoid open meetings requirements.

The Public Information Board agreed to further investigate the matter. But that haphazard investigation consisted of staff directing questions to the assistant attorney general who represents the Board of Corrections. The assistant AG refused to allow the Public Information Board staff to ask Board of Corrections members about points I had raised. The information board subsequently recommended dismissing my complaint for a second time.

THE OPEN MEETINGS LAW’S INTENT

In the 2016 case Hutchison v. Shull, the Iowa Supreme Court considered an alleged open meetings law violation in Warren County. The majority concluded,

The legislature clearly intended public bodies subject to the open meetings law to deliberate the basis and rationale for important decisions such as these, as well as the decisions themselves, during open meetings. […]

The open meetings law is intended to safeguard free and open democracy by ensuring the government does not unnecessarily conduct its business in secret.

The legislature’s intent means nothing to the Iowa Public Information Board. It has allowed government to “unnecessarily conduct its business in secret.”

During the information board’s September meeting, I asked members to reject the proposed order for dismissal and direct staff to conduct further fact-finding.

I also urged them to propose amending the open meetings law to delete the words “of a majority.” That would prevent state or local government boards from conducting business in secret by keeping the number of attendees below a quorum.

My fear is that other agencies will look upon this decision and determine that a state board may indeed deliberate and conduct business behind closed doors, with a minority of board members present.

The chair of the Public Information Board’s legislative committee said he was “afraid that my proposal would eliminate the need for quorums.” But that’s not true. My proposal would merely encapsulate the open meetings law’s intent. No group of government-appointed or elected persons would be able to deliberate or act on a matter that is within the group’s “policy-making duties” without falling under the meaning of “meeting.”

The intent of Chapter 21 is “to assure, through a requirement of open meetings of governmental bodies, that the basis and rationale of governmental decisions, as well as those decisions themselves, are easily accessible to the people.”

There can be no doubt that some Board of Corrections members met to discuss candidates for Department of Corrections director and agree on recommendations to send to the governor. The lack of a quorum does not and cannot become a technical loophole to the intent of the open meetings law. Such decisions and the discussion surrounding them must be “easily accessible to the people,” with notice given in advance.

A WORRYING PRECEDENT

My purpose for filing this complaint is not to remove Dr. Skinner from her current position, but to ensure that this scenario does not repeat itself.

Dismissing my complaint sets a precedent that renders the intent of Chapter 21 meaningless. Imagine three or fewer Iowa Natural Resource Commission members deciding behind closed doors to purchase or sell land on behalf of the state. Would the Iowa Public Information Board dismiss a complaint, on the grounds that the Natural Resources Commission didn’t have a quorum, so no meeting occurred? (The statute creating the Natural Resource Commission specifies that a quorum consists of the majority of its seven members.)

State boards may meet without a quorum, but have no authority to conduct business requiring motions and action, according to an unpublished Iowa Court of Appeals opinion from 2005 (Hawkeye Communications, Inc. v. Carlson).

A 1991 Iowa Supreme Court ruling concluded, “In determining whether the public was sufficiently apprised, we may consider the public’s knowledge of an issue and actual participation in events in light of the history and background of that issue.” (KCOB/KLVN, Inc. v. Jasper County Board Of Supervisors).

The three Board of Corrections members must have taken some vote, or action similar to a vote, when deciding which candidates to recommend to the governor. Iowa Code Section 21.3 stipulates, “Except as provided in section 21.5, all actions and discussions at meetings of governmental bodies, whether formal or informal, shall be conducted and executed in open session.”

The Iowa Public Information Board is charged with enforcing the open meetings law. It has jurisdiction to determine whether a government body engaged in discussion and action that did not comply with open meetings requirements.

Iowa Code 21.5 states, “Final action by any governmental body on any matter shall be taken in an open session unless some other provision of the Code expressly permits such actions to be taken in closed session.” No such exemption exists for the Board of Corrections when it considers candidates for department director.

Seventeen people may have applied to lead the Department of Corrections, but I cannot verify that fact. I should have been able to verify it by attending an open meeting, even if board members discussed some matters in closed session.

ONE COMPLAINT ENDS, ANOTHER BEGINS

While researching this matter, I sought details about Board of Corrections meetings where the director’s vacancy might have come up. Minutes from the board’s January 4, 2019 meeting (the first after Bartruff stepped down) do not indicate any action by the board related to the vacancy. Thomas Phillips did make a motion to “nominate the Chair, Vice Chair and Larry Kudej”–possibly to form a subcommittee to discuss the vacancy–but the minutes do not reflect a vote.

No other action items appeared on further agendas, even though minutes published recently on the Department of Corrections website suggest there was some discussion in subsequent meetings.

I e-mailed Skinner on November 5 to request copies of the minutes from those three meetings. At the end of the day on November 12, I had yet to receive the documents. It should not have taken any significant amount of time to locate those minutes and send me copies.

Department of Corrections staff informed me by phone that my request had been processed and was sitting in the director’s box waiting approval. I finally received the documents at 7:50 am on November 21, too late to do anything with them. The Public Information Board was scheduled to consider and dismiss my complaint again at 1:00 pm the same day.

As explained above, the information board should not have dismissed my open meetings complaint. Nonetheless, I requested that they do so as I handed staff a new complaint against the Department of Corrections–this time alleging a violation of Chapter 22, the open records law.

Top image: Official photo of the Iowa Board of Corrections, 2018. Sitting, from left to right: Rebecca Williams, Dr. Mary Chapman, Dr. Lisa Hill. Standing, from left to right: Dr. John Chalstrom, Richard LaMere, W. Thomas Phillips, Lawrence Kudej.

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