More than a year has passed since a Polk County District Court judge sided with the Board of Regents in a dispute over whether it broke open meetings laws in recruiting now University of Iowa President Bruce Harreld, but one woman is persisting in her fight for a trial in the case.
Before a panel of appellate judges Friday hearing last-ditch arguments to keep the case alive, attorney Gary Dickey said, “We want to have a public trial so the public can see with their eyeballs” the regents answer publically for deciding in 2015 to hold separate but approximate meetings with Harreld – a prospect but not yet applicant to replace outgoing former UI President Sally Mason.
“A reasonable fact finder would be willing and be able to infer with reason that they wanted to send a signal to Harreld in private, ‘You’ve got the votes if you apply,’” Dickey told the judges, referencing a requirement of “action” or “deliberation” for meetings to fall under open meetings law.
But an attorney for three former regents named in the lawsuit – Bruce Rastetter, Katie Mulholland, and Mary Andringa – called this “a classic even-if case.” Even if a court allowed accusers to tie together a series of meetings that were close in both time and location, “The undisputed facts are there were only two meetings attended by only two regents each, with no interaction,” attorney Richard Sapp said.
“That’s not a majority,” he said about the nine-member volunteer Board of Regents.
“It must be emphasized how extreme their position is,” Sapp continued. “Their basis for claiming a fifth majority meeting was Mr. Rastetter driving Mr. Harreld to a meeting location. There is nothing improper about individual members of a public board gathering information or having conversations with third persons where there is no majority or deliberation.”
The meetings in question occurred July 30, 2015 – as the board and UI were in the heat of their hunt for a new leader. Rastetter picked up Harreld from the airport and drove him to his personal business, Summit Agricultural Group, where he had coordinated two separate meetings with a total of four regents. Harreld later applied for the position and was hired – despite widespread criticism of his candidacy as a former IBM businessman with no administrative academic experience.
Former UI employee Gerhild Krapf sued over the potential open meetings violations – one of two lawsuits filed in connection with Harreld’s hire. A judge in October 2017 sided with the board in Krapf’s lawsuit by granting “summary judgement” in its favor, effectively ending the case.
Krapf appealed, but Judge Gayle Nelson Vogel during oral arguments Friday noted, “There is an enormous divide between what is information gathering and deliberation.”
Dickey, representing Krapf, argued the board made apparent their plans to deliberate in the way they arranged the meetings.
“If they didn’t think it was deliberation, they would have met all five people in the room,” he said. “But the only purpose of staging this one by two by two was a specific acknowledgment of the requirements of the open meetings law and an intent to circumvent them.”
Sapp argued barring approximate meetings among public board members would “absolutely cause chaos in our ability to have our boards in government be able to function.”
“Undisputedly, there were two separate meetings attended by two regents each, and the testimony is unanimous, there was no interaction between those two pairs of regents,” Sapp said. “No discussion of the candidacy of Mr. Harreld. No discussion of the merits of other candidates or anything.”
Judge Christopher McDonald signaled agreement that the lawsuit was setting a high bar for open meetings.
“Is it your contention that every serial meeting is subject to case law,” he asked, to which Dickey said, “Yes.”
“The reality of how government works is that people have multi-member bodies, and informal discussions occur all the time, whether it’s at the water cooler or, as in this case, trying to get a sense of where their colleagues are coming out on an issue,” McDonald said.
“You’re saying that every time that happens, they need to give 24-hour notice and have the public available to come sit in,” he said. “That just doesn’t track with reality to me.”
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