The Clinton Herald, Clinton, Iowa

November 19, 2013

Report: Clinton Council violated Open Records law

By Katie Dahlstrom
Assistant Editor

---- — CLINTON — The city of Clinton violated Iowa's Open Records law when it refused to disclose records from closed session meetings regarding a 2009 EMS lawsuit and has to release records relating to the case, a judge decided Monday.  

Seventh Judicial District Chief Judge Marlita Greve filed a ruling Tuesday in the Citizens For Open Government's motion for partial summary judgement against the city. She declared the city council violated the state statute by not disclosing records from six closed session meetings when the council discussed the federal False Claims Act lawsuit former Clinton firefighter Timothy Schultheis had brought on the city.  

Schultheis claimed the city was billing ambulance calls as advanced life support instead of basic life support in order to receive higher reimbursement rates from Medicare and Medicaid. The city hired Michael Walker to defend it in the case, which was settled for $4.5 million in September 2010.  

The city council discussed the suit in closed session on Sept. 29, 2009; April 13, 2010; Aug. 3, 2010; Aug. 30, 2010 and twice on Sept. 28, 2010. During these meetings, the council discussed hiring Walker, the settlement, taking action against city employees and filing suit against the city's insurer, ICAP. Council members also authorized the city administrator to sign the settlement agreement, which was done on Sept. 14, 2010.  

On Sept. 6, 2011, members of CFOG sent a letter to City Attorney Jeff Farwell asking for all records pertaining to the EMS litigation. Farwell denied these requests, claiming attorney-client privilege.  

CFOG members and the ACLU of Iowa filed their current suit against the city in March 2012 and has been battling with the city about the records since.

This summer, CFOG was given transcripts, recordings, and tapes from six closed session meetings so it could identify open meetings law violations and on the condition that the materials not be shared.

Greve found the documents CFOG members requested were only to be kept from public disclosure up to the point that the city was bound by the settlement of EMS lawsuit, which she pegged at Oct. 1, 2010 at the latest because that was the date the city made its first payment in the $4.5 million settlement.  

"Once the (city) took final action on the EMS litigation, the need to keep the requested documents confidential disappeared. Therefore, the (city) should have disclosed the requested documents to the petitioners," Greve wrote in her ruling.

Even assuming the city's potential action against ICAP, which was discussed during the Sept. 28, 2010 closed session, was not resolved, the city didn't establish whether that litigation is pending or final.

She also asserted the city council destroyed attorney-client privilege during the Aug. 3, 2010 meeting by having mediator John Nhara present.  

The attorney-client privilege was further destroyed during the city's subsequent legal malpractice suit against Walker and his firm Hopkins and Huebner. That case was heard by a Scott County jury last month, which decided Walker did not commit legal malpractice.

The content of the closed sessions was discussed extensively during the malpractice trial and was voluntarily disclosed by the city, Greve wrote, waiving the attorney-client privilege as it pertains to the requested documents.   

Last week, Judge Nancy Tabor, who presided over the legal malpractice case, ordered the transcripts from the closed sessions that were used as exhibits during the legal malpractice trial were public record.  

Greve also found the documents were not exempt from being disclosed under the attorney-client work product.  

“The city has put a lot of time and energy into fighting this disclosure, but in a democracy, it’s important for citizens to advocate for open government and for the right to know what happened with their tax money," ACLU Legal Director Randall Wilson said.

The motion did not ask Greve to enforce fines for the violations. CFOG and the city are set to appear in court for a trial in the matter at 9 a.m. Wednesday.