The Clinton Herald, Clinton, Iowa

July 24, 2013

Group waiting to release records

By Katie Dahlstrom Assistant Editor
The Clinton Herald

---- — CLINTON — The citizen group suing the city over closed session minutes related to the city’s $4.5 million EMS suit has what it wants, but isn’t ready to make the documents public.

Members of the Clinton group, the Citizens for Open Government (CFOG), revealed to a group of 20 people who gathered Tuesday for a town hall meeting that they have transcripts, recordings and tapes of six closed session meetings held from 2009 and 2010 relating to the city’s $4.5 million Emergency Medical Services settlement.

However, the group is waiting for a judge to review the records and what members have identified as possible violations of the open meetings law before releasing the documents.

“At this point we have made the decision not to make those public until the judge is assigned the case and at least gets to look at our findings,” CFOG member Ed O’Neill said. “It’s not fair to make public information on something a judge is going to make a ruling on and could go to trial.”

The group filed suit with the American Civil Liberties Union of Iowa in March 2012 after a formal request for the documents relating to the city’s settlement with the U.S. Department of Justice and whistleblower Tim Schultheis was denied by City Attorney Jeff Farwell, who cited attorney-client privilege.

Schultheis, a former Clinton firefighter, had claimed that from 2006 to 2008, routine city ambulance calls were improperly billed as urgent by EMS officials. This was done, he said, to achieve a higher reimbursement rate from federal healthcare program Medicare.

The city’s attorney in the case, Michael Walker (who the city is now suing for legal malpractice), said the city could have faced up to $100 million in fines because of the EMS billing if it had not settled for $4.5 million.

According to O’Neill, former Mayor Rodger Holm received a letter from the federal government in January 2009 informing the city of the suit relating to the alleged overbilling and needed to respond.

It wasn’t until September 2009 that City Council members were informed, O’Neill told the group gathered at the Ericksen Center. The City Council held a series of closed session meetings on Sept. 29, 2009; April 13, 2010; Aug. 4, 2010; Aug. 30, 2010; Sept. 28, 2010; and Sept. 28, 2010 to discuss the suit.

Five members of CFOG reviewed the minutes from those closed sessions and determined instances where they felt the City Council violated open meetings laws. Their report has been filed with the ACLU-IA.

The records are going to be filed with a Clinton County judge before being made public, which O’Neill expects could happen in mid-August.

“We’ve painted a picture from start to finish and it’s up to the judge to decide if there was any wrong doing. And if there was, he or she will determine if or any punishments and or fines will be levied and to who,” CFOG member Marty Nitschke said.

The case was on the court docket before, but was removed to allow the city to turn the records over to the ACLU-IA.

While O’Neill, Nitschke and fellow CFOG member Larry Ketelsen would not comment specifically about what was in the records they reviewed, they did note a general concern the records raised.

“The thing we were most disappointed with is that nobody in the city stood up and said ‘I’m done. This has gone far enough. This is a case of fraud. I’m going to contact the Attorney General and have him look into it instead of having these closed session meetings,’” O’Neill said. “They were very content that these were closed session minutes and we weren’t going to find out this information. Unfortunately, they were wrong, because I got ‘em.”

Nitschke also expressed confidence that the ACLU-IA and CFOG would prevail in the suit.

“Put your faith in the ACLU. Trust me. I don’t think they would have taken this if there wasn’t meat to it. I mean think about it. You think the ACLU wants to lose? Do you think they want to be embarrassed?” he said.

LEGAL MALPRACTICE FEES

During the town hall meeting, CFOG also discussed the city’s growing bills for legal fees related to its legal malpractice suit against its attorney in the EMS billing suit, Michael Walker.

The city is suing Walker for $3 million, claiming his negligence led the city to settle the EMS suit.

According to city finance documents, the legal malpractice suit has cost the city $663,536 since the firms were hired last year. To date, the city has paid Hannafan and Hannafan $506,779; Gosma, Tarbox and Associates $87,024; expert witness and whistleblower consultant Ronald Clark $59,463; and Herring Reporting Services $10,270.

The city recently changed the contract with Hannafan and Hannafan to a contingency fee contract. This means the firm will not receive an hourly rate, but will be paid 25 percent of whatever amount the city receives if the legal malpractice suit is ruled in the city’s favor.

O’Neill speculated that by the time the suit is resolved, the city will have spent more than $1 million on it.

O’Neill also decried the payments the city made to Hannafan and Hannafan in 2011 and March 2012 before the council officially hired them to represent the city in the legal malpractice suit on March 6, 2012.

Those payments were for $7,500 in March 2011, $4,538 in September, 2011 and $25,000 in March 2012.