The Clinton Herald, Clinton, Iowa

November 18, 2011

Mayor, council accused of open meetings violations

City’s HR director says council wrongfully closed sessions to discuss budget

By Samantha Pidde
Herald Staff Writer

CLINTON — Clinton Mayor Rodger Holm and the city’s seven-member council face a civil lawsuit that alleges they violated Iowa’s open meeting laws.

The lawsuit was filed in Clinton County District Court on Nov. 7 on behalf of David Geisler. His position as the city’s Human Resource Director was eliminated during recent budget cuts.

The lawsuit names Mayor Rodger Holm and councilmen Mark Vulich, Jennifer Graf, Paul Gassman, Charlie Mulholland, Bev Herman, Mike Kearney and Maggie Klaes. Each person is cited both personally and in their capacity as city councilmen. According to court documents, the lawsuit alleges that the council violated Iowa Code Section 21.5 (1) (i) on two separate occasions.

The action hinges on the reason for a closed session provided under Iowa Code Section 21.5 (1) (i):“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.”

The lawsuit states that on Sept. 2, the Clinton City Council went into closed session purportedly to discuss a personnel issue under Iowa Code Section 21.5 (1) (i). However, the lawsuit claims that no individual employee requested the closed session. According to court documents, the lawsuit claims that action taken during the closed session was to discuss a budget amendment.

The lawsuit also references another incident at the Sept. 13 Committee of the Whole meeting, where the council again went into a closed session to discuss a personnel issue pursuant to Iowa Code Section 21.5 (1) (i). The lawsuit claims that again no individual employee requested the closed session and action taken during the closed session was to discuss a budget amendment.

At a subsequent Oct. 11 meeting, the city council passed a budget resolution, amending the budget and eliminating the HR position. The positions held by Information Technology Director Melanie Peinkofer and City Planner Mike Reynolds also were eliminated at that meeting.

Clinton Attorney Blake Parker filed the lawsuit. He would not comment on why the mayor and councilmen are being sued both personally and in their official capacities. He said he is discouraged that the actions of the council have not been questioned before. Parker declined to make any more comments, saying that the petition speaks for itself.

The lawsuit asks the court to enforce penalties pursuant to the closed session statute against each defendant in their official capacity and personally. According to the lawsuit, Geisler is also asking that an injunction be issued against the City of Clinton to stop any action resulting from the discussions that took place during the closed sessions and to void those actions.

Iowa Attorney General's Office Spokesman Geoff Greenwood said in a Thursday telephone interview that penalties of $1,000 to $2,500 could be assessed to each defendant if the claims in the lawsuit are found valid. According to Iowa Code Section 21.6, “upon finding by a preponderance of evidence that a governmental body has violated any provision of this chapter, a court can assess each member damages and require them to pay all costs and reasonable attorney fees in the trial and appellate courts.”

Members of a governmental body found to have violated open meeting laws would not be assessed these costs if that the member proves they voted against the closed session; had a good reason to believe and in good faith believed facts, which if true, would have indicated compliance with Iowa Code requirements; or reasonably relied upon a decision of a court or formal opinion of the attorney general or the attorney for the governmental body.

Attempts to reach Jeffrey L. Farwell, Clinton city attorney, for comment were not successful. A court date has not been set.