The Clinton Herald, Clinton, Iowa

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January 30, 2014

Elected officials will not be fined in open records case

CLINTON — Former and current council members involved in a breach of open records law will not be individually fined for the violation, a Clinton County District Court judge ruled Thursday.

On Nov. 9, Seventh Judicial District Chief Judge Marlita Greve ruled Clinton violated open meetings law by not disclosing closed session records in wake of a $4.5 million False Claims Act settlement. Those records were opened, and Citizens For Open Government joined the American Civil Liberties Union of Iowa in a suit against the city for the violation. CFOG won the suit, but it was unclear who would bear the burden for legal fees and the subsequent fine — estimated at more than $42,300.

On Thursday, District Court Judge Nancy Tabor granted a motion made by attorney Cynthia Sueppel on the city's behalf that makes the burden of the fine solely the city's. Ex-council members Jennifer Graf, Bev Hermann, Maggie Klaes, Mike Kearney and ex-mayor Rodger Holm as well as some current members of the city council will not be assessed those damages for their alleged roles in the open meetings breach.

Pat Van Loo, Clinton city clerk and "records custodian," also was named as a respondent during the case; she will not be assessed fines either.

"I was pleased with the judge's ruling," Sueppel said following Thursday's hearing. She and Mayor Mark Vulich made no further comments.

In her motion, Sueppel reasoned that the petitioners — CFOG — only named two respondents: the city and city clerk.

"The fees of over $40,000 can't be assessed against persons who are not part of this court," Sueppel said. "The petitioners chose to serve two persons — the city clerk and the city of Clinton."

The approved motion limits evidence submitted for the proceeding to the records custodian and the city of Clinton. Those ex-council members no longer represent the city, having either been voted out or choosing not to run for re-election.

CFOG attorney Blake Parker argued against Sueppel's motion stating the purpose of the case was to hold the elected officials accountable for the violation.

"The purpose of (the case) is to make sure those individuals are the ones who have to bear the burden of those mistakes as opposed to the citizens," Parker said. If the city and not individuals are assessed, the fees will come from city finances which are supported in large part by the Clinton tax base. "Our proof of this is there's no mystery about this... They're very aware of all that's been going on."

He used the same argument for why the city clerk should not be fined; the records belonged to the council members, Parker said.

Sueppel said the issue created by not naming individuals as petitioners was there was no direction on who to serve notice. The lawsuit also didn't specify which council it referenced as responsible for the breach.

With no council members mentioned, "we're intended to rely on who they chose to sue," Sueppel said. CFOG sued the city.

Although Tabor initially said she was going to take the motion under advisement, she later granted Sueppel's motion. This disappointed current and former CFOG members at the hearing.

"They're able to sneak away with no accountability, no liability, even after being found in violation," said CFOG member Marty Nitschke, who joined Parker at the petitioners' table during the hearing.

Former CFOG member Ed O'Neill, who now serves on the Clinton City Council, said without assessing the ex-council members, there's "no accountability" for the people he thinks are responsible for the open records violation. O'Neill said the previous council members were all parties that led to the breach.

"This whole thing was done because there was no accountability," he said. "After today's ruling, it's still unclear who's accountable."

However, O'Neill said later that the ruling doesn't remove the guilty tag from the people responsible.

Tabor also took Sueppel's motion to reassess attorney fees under advisement. Sueppel argued that since there were three attorneys working on the case on behalf of the petitioners, there may have been a duplication of services even though the case may not have warranted it.

The judge said Sueppel has seven days to review where she feels there were duplications.

Tabor has 60 days to give a final ruling on the case, since ex-council members won't be called to give testimony. She will weigh Sueppel's findings in order to determine final legal expenses incurred.

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