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Despite the name and mission of a Board of Regents-created subcommittee formed to oversee a systemwide 'Transparent, Inclusive, Efficiency Review” of Iowa's public universities, the group's meetings have been kept closed.
The TIER subcommittee, as it's called, also hasn't notified the public of when and where its meetings are held, and Board of Regents officials say the group is not legally required to do so. But, a proposed amendment to the state's Open Meetings and Open Records statutes could change that.
Kathleen Richardson, executive director of the Iowa Freedom of Information Council and a member of the Iowa Public Information Board, said her board is looking to clarify how the law applies to advisory committees created by governmental bodies - like the TIER subcommittee - after receiving inquiries and concerns.
A draft proposal would change the law to require advisory committees that perform policy-making duties or make recommendations related to public policy issues to hold open meetings. The proposal further states that all subcommittees created by a government body's directive, motion, resolution, or ordinance also would be covered under the open meetings law.
Regents' TIER subcommittee likely would fall under the law's broader proposed definition, according to Richardson, although she can't say so definitively at this preliminary stage.
'But it certainly makes it more likely going forward that committees like this would have to comply,” she said.
The current law states advisory groups and committees that make recommendations but lack decision-making authority - like the TIER subcommittee - are not subject to the open meetings law. That is the portion of the statute the Board of Regents Office has cited in keeping TIER meetings closed, according to Aimee Claeys, associate counsel for the board.
Richardson said the group might not be breaking the law by keeping its meetings closed, but committees can, and sometimes do, voluntarily open meetings - even if not required.
'If the title is transparency - it's in the name of the task force - and yet they are not holding open meetings, it does seem to be rather ironic,” Richardson said. 'Obviously as someone who is an advocate for as much transparency in government as possible, especially on a topic with as much public interest as this, the more transparency you can have, the better.”
Another Regents-formed task force that earlier this year recommended changing the way state money is allocated to the three universities voluntarily notified the public of its meetings and made them open.
Board officials said that was the decision of former regent David Miles, who chaired the group.
The TIER subcommittee consists of regents Larry McKibben and Milt Dakovich, as well as a Regents attorney, another staff member, representatives from the consulting firm hired to conduct the efficiency review, and representatives from each university.
McKibben, who is heading the TEIR subcommittee, has said his group's meetings are closed because they aren't advising the Board of Regents on policy but rather on decisions related to the efficiency review.
For example, during the Board of Regents meeting Wednesday, McKibben told his colleagues that 'my committee” recommends the board continue contracting with Deloitte Consulting LLP - the firm it hired earlier this year review operations at the three regent universities and suggest ways to improve efficiency, cut costs, and generate revenue.
Because the subcommittee's meetings have been closed, however, it's unclear whether McKibben's mention of 'my committee” at the board meeting referred to the TIER subcommittee or whether another group is making decisions related to the efficiency review.
Emails reviewed by The Gazette indicate there have been discussions on the topic that did not include all members of the subcommittee. And, according to information provided by the Regents Office to The Gazette earlier this week, the TIER subcommittee last met on May 21 - weeks, if not months, before Deloitte developed and outlined its sourcing and procurement plan, on which McKibben's recommendations this week were based.
When asked about the timing discrepancy between when the subcommittee last met and this week's recommendations, Regents Spokeswoman Sheila Koppin said McKibben 'has ongoing discussions with members of the board's TIER subcommittee in addition to the scheduled meetings.”
The next TIER meeting, which will be closed, is scheduled for Tuesday.
‘HOW FAR DO YOU GO?'
Richardson said the Iowa Public Information Board decided to review and propose changes to Iowa's Open Meetings Law after feedback from across the state made it apparent the law is unclear.
'It's difficult for lawyers, much less non-lawyers, to try and figure out when an advisory group has to comply with the open meetings law,” Richardson said.
The public information board is holding a series of public meetings on its proposal to clarify the law at its office in Des Moines on Monday and Thursday and on Aug. 19. Its final recommendations must be approved by the full board and then passed by the Legislature.
Even if the proposed changes are approved, Richardson said, some advisory committees would be exempt. But the goal is to broaden the statute's scope.
'And the fact is, no matter how you write the law, if government officials want to avoid the requirements of the law, they will find a way,” Richardson said.
Some members of the public have argued the board's proposal doesn't go far enough in requiring advisory groups to comply with the law. Some people believe it goes too far, said Keith Luchtel, information board executive director.
'That's the controversial thing - how far do you go with this and still have the ability to do anything?” he said.
Because the law requires notices of public meetings to be issued in advance, Luchtel said, some people have argued compliance can be difficult and hinder progress. Luchtel said the process sometimes can deter citizens from serving on boards.
'They don't want to screw around with that,” he said. 'So it's a tough call. That's the issue we are debating.”
Nicholas Johnson, UI law professor and former commissioner of the Federal Communications Commission, said he thinks there should be a logical rationale to close a meeting.
'The Iowa Code specifies that the general rule is that everything is open, and then there are all these exceptions,” Johnson said. 'I think you shouldn't get hung up on, can we come up with some rationalization where our meeting falls under one of these exceptions. The honorable thing to do is to serve the spirit of the law, which is to do it in public.”
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