The Clinton Herald, Clinton, Iowa

September 25, 2012

HERALD'S OPINION: Council's meeting time doesn’t make sense

The Herald's Opinion

CLINTON — Some things just don’t make sense, even once you have received answers to questions to help figure it all out.

In this case, specifically, what doesn’t make sense is the timing of a special Clinton City Council meeting set for early Monday.  

RELATED: City, former HR director reach tentative agreement to settle lawsuit

Now, it is not unusual for the City Council to meet in special session, during the day, when something of importance comes up.

What is unusual is the manner in which city officials scheduled the special session to take place at 8:45 a.m. Monday, just mere minutes after city hall opened for the day — and for something as important as the settlement of a lawsuit that will pay former Human Resources Director David Geisler two years’ worth of salary and ultimately will dismiss an open meetings lawsuit against the city.

The settlement, if approved, will cost taxpayers the equivalent of two years’ salary — which was $142,448.

What bothers us is that the agenda was not publicly posted until very late in the working day Friday. City Hall closes at 4:30 p.m., and we know that agenda was not up before 3:30 p.m., the time that one of our staff members was at city hall to pick up agendas for Tuesday night’s council meeting.

By accounts of one member of the public, the agenda was not posted until shortly after 5 p.m.

Think about that — a piece of paper that went up outside city hall after it had closed for the week for a meeting that was to happen early Monday morning.

One could make the argument that an agenda could be found online.

Except it cannot.

The city’s last posted meeting agenda is dated Sept. 27, 2011.

And media notification? In this case there wasn’t one. Normally, city hall sends out meeting agendas to the press. But nothing was sent out Friday, Saturday or Sunday to the Clinton Herald or the local radio station, both of which found out about the meeting after receiving telephone calls Sunday night from members of the public who had heard this meeting was happening.

So why the fuss?

Well, ironically, the meeting was set up so the city council could grant permission to the mayor to sign a tentative agreement settling a lawsuit in which some past and present council members were accused by Geisler of violating the open meetings law when the council gathered on Sept. 13, 2011, to discuss cuts to the city’s budget.

Geisler filed the lawsuit in response to action by the city council in which the human resources department and his job were cut 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, 2011 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, 2011 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 in August that the defendants — former Mayor Rodger Holm, former councilman Mike Kearney, current council members Jennifer Graf, Paul Gassman, Charles Mulholland, Bev Hermann, and Maggie Klaes and current Mayor Mark Vulich — were guilty of violating the open meetings act on Sept. 13, 2011.

The court recently denied reconsidering that ruling. The amount that the defendants were to pay was going to be determined in a penalty phase, which was to be set for hearing at the same time as trial for the alleged violation in regard to the Sept. 2, 2011 closed city council session. The trial was to start next week on Monday.

At some point late last week, a settlement agreement was reached and Vulich said it was decided that city officials needed to meet sooner rather than later to vote on it so Vulich could sign it and get it turned into the court.

Now, we know that when City Attorney Jeff Farwell was questioned about this on Monday just before the meeting, he said the council was within its bounds to meet since 24 hours had passed since the posting of the agenda.

Under the law, providing notice must include advising the news media who have filed a request for notice and posting a copy on bulletin board or prominent place easily accessible to public and clearly designated for that purpose at the principle office of the governing body or, if no office exists, at the building where the meeting will be held.

And there is a Good Cause clause that says “when necessary to meet on less than 24 hours notice, or at a place not reasonably accessible or at a time not reasonably convenient to the public, good cause for departing from these requirements shall be in the minutes.”

And, it should be noted, Iowa Code says a governmental body may discuss and take action on “emergency items that are first ascertained at a meeting for which proper notice is given. Including emergency items on a tentative agenda is not required. But, if action can be reasonably deferred to a later meeting, this should be done.”

It led us to ask questions about the meeting’s scheduling.

Why early Monday morning? Why not add it to Tuesday night’s agenda, revise it — then there would be 24 hours for public and press notification during the work week and people would be aware that it was happening.

Vulich said Monday morning was chosen because he wanted the entire council to vote on it and it was the only time they could get together as a group. What about a conference telephone call, we asked. He said it wouldn’t allow for three people to be on the call — one at most — and he didn’t like that option.

Besides, Vulich said, he wanted to get it done Monday so it could go to the courts right away. That way if it was turned down by another party, that would give the city more time to prepare for trial.

One day? If you aren’t ready yet, then what difference is that day going to make? That’s our question.

OK, well, what about press notification? With city hall closing at 4:30 p.m., one would not expect an agenda posted outside of city hall for a Monday morning meeting as the only method of notification.

Also, every other council agenda is emailed to us. Vulich said it came down to one of the workers sending the email to the wrong email group — which happened to be the one without the newspaper and radio station’s email addresses in it.

Vulich did say that it turned out OK because we knew about it and were able to attend. True, but only after a community member who had heard from someone close to the settlement that it was happening called newspaper and local radio station employees on Sunday night to ask if we knew that action was going to be taken Monday.

On a final note, it also causes us to ask: Wouldn’t a governmental body, which is accused of open meetings law violations, want to do everything in its power to make sure that it is being as open as possible?

Because in this case, it seems this was not the best example of a governmental body that has said it wants to be transparent.