By Charlene Bielema
Defendants in the lawsuit filed by the city’s former human resources director have been told they face fines that could come out of their own pockets when penalties are determined as a result of violating the state’s Open Meetings Law.
The defendants — former Mayor Rodger Holm, former councilman Mike Kearney, current councilmembers Jennifer Graf, Paul Gassman, Charles Mulholland, Bev Hermann, and Maggie Klaes and current Mayor Mark Vulich — were informed in an e-mail from City Attorney Jeff Farwell on Wednesday that just what they could pay will be based on what they knew prior to going into that closed session on Sept. 13.
Iowa Code states “that the penalty shall be not less than $100 or more than $500 per member that participated in the meeting. If a member knowingly participated in a violation the fine is not less than $1,000 or more than $2,500. These fines, and any attorneys fees, are specified to be paid individually by the members unless the person voted against the closed session, had good cause to believe and in good faith believed facts which if true would have indicated compliance with the requirements of the chapter or relied on a decision of the court of formal opinion of the attorney general,” the e-mail read.
The amount, if any, will be determined during the penalty phase, which will be set for hearing at the same time as trial on another alleged violation by the defendants concerning a Sept. 2 closed city council session.
The plaintiff in the case is David Geisler, former human resources director, whose department and job were cut as the city sought to chisel $800,000 from its budget after a shortfall was discovered last summer.
City Administrator Jeff Horne developed a matrix to allow the city council to decide which areas or departments needed to be reduced or eliminated to fall within the budget.
The council members voted on their selections, with their votes leading to the elimination of the Planning, Information Technology and Human Resources departments. Around that same time, the city decided to hire a finance director, Jessica Kinser. The council agreed to hire Kinser on or about Aug. 5, 2011, according to Geisler as stated in the court documents. The defendants claim she was not hired until October 2011. A special meeting of the council took place Sept. 2, 2011, with a closed session scheduled for that time; the reason for closing the session was based on a personnel discussion, with the council and Kinser to discuss her background. Horne had Kinser sign a request to close the meeting just prior to the gathering, documents state.
On Sept. 13, the council met in a committee of the whole session with items on the agenda discussed in open session and a list of closed sessions slated to round out the meeting. One of those sessions was to discuss personnel matters. According to the court documents, in the transcript of the closed session, it appears that the personnel issues discussed Sept. 13 were really the elimination of the three departments as well as what, if any, severance pay would be paid to individual employees. Horne recommended six months’ pay. The council thought that was too much and voiced that a one-month severance package should be offered.
The court documents state the votes about the matrix were discussed as were the duties of the departments that were to be eliminated and how those duties would be dispersed among the remaining departments. Further discussion focused on who would be offered early retirement. Geisler did not qualify for early retirement and “it would appear that he was required to remain outside of the meeting even though the council members and mayor knew he was waiting outside,” the court documents state.
Clinton County District Court Judge Mark Smith ruled late last week that the defendants violated the Open Meetings Law on Sept. 13. Because of a factual dispute about what occurred at the Sept. 2 session, Smith said that matter should proceed to trial. That trial is set for 9 a.m. Oct 1.