The American Civil Liberties Union of Iowa announced Wednesday that it has filed a lawsuit against the city of Clinton in an attempt to shed light on a series of closed session Clinton City Council meetings from 2009 to 2010. The closed session meetings preceeded the $4.5 million Emergency Medical Services settlement with the U.S. Department of Justice in 2010.
“We think it provides a prime example of how not to run a city in an open fashion,” said ACLU Foundation of Iowa Legal Director Randall Wilson in a statement released Wednesday. “At some point the citizens of Clinton deserve to learn what happened.”
Davenport attorney Michael McCarthy, an ACLU-IA cooperating attorney, has been retained in the case. Wilson has said that the ultimate goal of the suit is to get a judge to review the closed session records, and determine what should and should not be entered into the public domain.
In a phone interview Wednesday, McCarthy said the case has the potential to be historically significant.
“This could set a precedent as to the scope of the attorney-client privilege where the client is the public,” McCarthy said. “It concerns matters of broad public interest, that is the expenditure of public money.”
He said that the city will have 20 days to file an answer to the filed petition. After that, it will be up to a judge to compel the city to turn over the disputed records, and eventually issue a summary judgement.
The law is on the side of the ACLU-IA, according to McCarthy.
“Our position is the real client here is not the City Council,” he said. “It’s the public. We think that the legal burden is on the city to prove that the disclosure of the information ...would injure the public interest.”
The City Council voted to pay the settlement in September 2010 rather than face up to a possible $100 million in fines. Tim Schultheis, a former Clinton firefighter, had claimed that from 2006 to 2008, routine city ambulance calls were improperly billed as urgent by Emergency Medical Services officials. This was done, he said, to achieve a higher reimbursement rate from federal healthcare program Medicare. Following the settlement, Fire Chief Mark Regenwether and EMS Director Andrew McGovern were fired and subsequently rehired and the city began making yearly payments of $450,000, 30 percent of which goes to Schultheis.
Discussions regarding the settlement were held during a series of closed session City Council meetings in 2009 and 2010. Iowa code allows for public entities to enter closed session to discuss ongoing litigation and legal strategy. However, many believe that enough time has passed and that those discussions should be made available for public scrutiny.
Former Mayoral candidate Ed O’Neill and councilman at large John Rowland, then still a candidate, filed a formal request to review any records collected during the closed sessions last year. Their attempt was unsuccessful, with city attorney Jeff Farwell citing attorney-client privilege and Iowa open meetings law exceptions, but it helped set the foundation for a similar attempt by Citizen for Open Government.
CFOG was formed specifically to acquire the closed session records. That group submitted a formal request to view the records in December, which was denied by Farwell, who again cited attorney-client privilege.
But CFOG was able to recruit the ACLU-IA to the cause through a new website advocating governmental transparency.
“As taxpayers, we want to be informed of what’s going on,” said Marty Nitschke, chairman and founder of CFOG. If it weren’t for the ACLU, “I don’t know what we would have done. We’d have to pursue it on our own, and we wouldn’t have known where to start.”
Nitschke said the group is excited that the case is progressing. He said that for nearly half a year, CFOG has been stonewalled by the city, leaving the group with no alternative.
The lack of accountability following the settlement is Nitschke’s primary concern. Taxpayers are on the hook for $4.5 million, and to date, no person or group has been held responsible, he said.
“The bottom line is nobody has been held accountable for this,” he said. “I find that hard to believe. There’s never been an investigation done into how or why this happened. Somebody needs to be held accountable.”
Farwell did not return a telephone call seeking comment.