By Katie Dahlstrom
The city of Clinton’s alleged violations of the Open Meetings and Open Records laws leading up to the $4.5 million EMS settlement were detailed in a motion filed by the Citizens for Open Government this week.
Members of CFOG are asking a Clinton County judge to declare the city of Clinton violated Iowa’s Open Meetings law and Open Records law when the city discussed the 2010 emergency medical services billing settlement it entered into with the U.S. Department of Justice and former firefighter Tim Schultheis, who alleged the city had incorrectly billed routine ambulance calls as urgent to receive higher reimbursement rates from Medicare and Medicaid.
The group also wants the court to declare the closed session minutes from those meetings are not confidential and the city must make them available for review by Clinton citizens.
The group of Clinton residents filed suit with the American Civil Liberties Union of Iowa against the city in March 2012 after a formal request for the documents relating to the city’s settlement was denied by City Attorney Jeff Farwell, who cited attorney-client privilege.
The CFOG case was set to go to trial last September, but was pulled from the docket after the city turned the minutes, audio and transcripts relating to the settlement over to the plaintiffs under the condition they remain confidential.
CFOG members then reviewed the records, claiming they found several instances where the city violated Open Meetings and Records laws.
In a motion for partial summary judgement filed Tuesday by the group’s attorney, Blake Parker, CFOG members claim the city violated the Open Meetings law on Sept. 29, 2009; April 13, 2010; Aug. 3, 2010; Aug. 30, 2010; and Sept. 28, 2010 and requested that the records for these meetings be opened for the public to view.
In the brief in support of the motion for partial summary judgement, the plaintiffs specified what they believe to be instances of “illegal decision making” and other violations.
According to court documents, during the closed session on Sept. 29, 2009, then city attorney Paul Walters told the council the city had received a federal lawsuit and would need to hire Michael Walker (who the city is currently suing for legal malpractice because of the 2010 settlement) to represent the city because of the scope and fact that it was in federal court.
The council then returned to open session and passed a resolution to hire Walker, but there was no discussion concerning Walker’s pay rate before the council agreed to pay him. CFOG members allege the council set Walker’s rate of pay during the closed session.
During the April 13, 2010 closed session, a council member asked “Is there anyone here that would like anything different than what our attorney is advising?” and the City Council voted to offer a settlement to Schultheis in the EMS litigation, court documents state.
No vote was taken in open session following the closed meeting, court records state. By voting to authorize the settlement, the City Council violated the Open Meetings law, CFOG members claim.
On Aug. 3, 2010 the city held a closed session that was attended by judge John Nahra, identified in the meeting as mediator for the EMS case and Walker. In their Tuesday filing, CFOG members claim the purpose of this meeting was to approve the settlement.
“...what I would like to do is have at least contingent approval from the Council with the understanding that there are some smaller caveats later on that will need to be addressed,” Walker said during the meeting, according to court documents.
A vote was taken on approving the settlement and then mayor Rodger Holm stated, “Mike, I do believe you have your indication,” according to court records.
Walker informed the federal judge the next day that the case had been settled, according to the motion. Because the vote to ratify the settlement did not occur in open session, CFOG members claim this also was a violation of the Open Meetings law.
During the Aug. 30 meeting, acting city attorney David Pillers asked the council for permission to move forward on the EMS settlement and a vote was taken, according to court documents.
“Mr. Pillers acknowledged he got the answer from the city council that he wanted,” the motion states.
CFOG members allege this vote was a violation of the Open Meetings law and resulted in a settlement agreement being signed by former city administrator Jeff Horne on Sept. 4, 2010.
In addition to the decisions made during the closed session, CFOG members have raised concerns over the city’s use of closed session.
The Sept. 28, 2010 meeting was closed, but no notice was given to the public, CFOG members claim. The meeting was held to discuss the EMS litigation. However, the EMS case was no longer pending or potential, making this an illegal closed session, the motion states.
The motion goes on to say at this meeting, the council voted by indicating they wanted Pillers to terminate Fire Chief Mark Regenwether and firefighter Andy McGovern and hire attorney Bill Sueppel to represent the city on the discharge action. These votes were taken in closed session and were related to personnel issues, making the closed session a violation of the Open Meetings law, CFOG members argue.
Regenwether and McGovern were fired, but were subsequently reinstated by the Civil Service Commission.
CFOG members claim each time the council met to give an “indication” of how they believed was the same thing as a vote when it created an official action, which they allege occurred during these closed sessions and should be regarded as violations of the Open Meetings law.
“The city council seems to believe that they can take votes that ‘indicate’ their position without violating the open meetings law. What is precluded by the law are decisions being made behind closed doors that are officials actions of the city,” the motion states.
Further the plaintiffs claim the city violated the open records law by not providing the records from the closed meetings in which the EMS case was discussed.
While CFOG members are requesting the court declare the city violated the open meetings and open records laws and unseal the closed session records, they are not asking for penalties to be issued just yet. They would like any fines, penalties and remedies to be dealt through a trial.
Cynthia Suppel, the attorney assisting the city in the CFOG case argued Wednesday during a status review hearing the plaintiff’s request in motion for partial summary judgement was not in line with the request in the original petition.
The city will have 20 days to file a response to the motion.
STATUS REVIEW HEARING
Farwell, Parker and members of CFOG met with Clinton County District Court judge John Telleen Wednesday morning for a status review hearing on the case.
Telleen said the case was lingering and needed to move forward.
He directed the parties to set a date for a hearing on the motion of partial summary judgement and also instructed the parties to set a trial date for the case.
Farwell asked that in his order, Telleen state the transcripts will need to remain confidential because of the city’s pending legal malpractice suit against Walker, which is slated to go to trial at the end of the month.
The city’s case against Walker was moved to Scott County last week. In her ruling, judge Nancy Tabor said the pre-trial publicity surrounding the case meant the defendant would be unlikely to get a fair trial in Clinton County.
“I’d like to not have the documents released until after the trial. I don’t want anymore prejudice for the jury down in Scott County either,” Farwell said.
The documents will remain confidential until the court orders them unsealed.