Thursday, May 24, 2007

UI Held Hostage Day 488 - Regents Meeting; Hines on Law

May 24, 2007, 7:25 a.m.; revised 9:10 p.m. (addition of definition and discussion of "meeting" under Iowa open meetings law)

Yesterday's blog entry, posted at 11:55 a.m. [Nicholas Johnson, "UI Held Hostage Day 487 - Governance Regents Number One Priority," May 22, 2007], suggested that if the Board of Regents was serious about having a UI president in place by July 1 it might want to consider time for interviews of finalists and its own deliberations sometime in June, rather than devoting its June 13th meeting to a strategic planning discussion, as announced.

At 1:58 p.m. yesterday afternoon, Board Executive Director and COO Gary Stenke emailed Board members that he thought that a good idea; that is, he started the process of finding out the free time in their schedules the weeks of June 11 and 18. See, Brian Morelli, "Regents Look for Meeting Window," Iowa City Press-Citizen, May 24, 2007, p. 3A.

Meanwhile, the secrecy about the secrecy in the Regents and Search Committee I deliberations was broken in the Press-Citizen's suit against the Regents. Former UI Faculty Senate President Shelly Kurtz revealed that the closed session deliberations went well beyond consideration of candidates and included discussions of process (namely, the confidentiality agreements required by the Regents and rejected by the faculty). Brian Morelli, "Official: Interrogatories 'incomplete;' Officials: Regents did not record portions of Nov. meeting," Iowa City Press-Citizen, May 24, 2007, p. 3A. If true, this would be a clear violation of the Iowa open meetings law. That is, when otherwise open meetings are closed, the reason for the closure must be stated in open meeting, it must be one of the reasons expressly permitted by the law, and nothing else may be done during that closed session.

However, all that turns on the subject of former law school dean, Professor Bill Hines' analysis of the open meetings law. It has been published in the Des Moines Register, the Iowa City Press-Citizen, and, this morning, in The Gazette: N. William Hines, "Why UI's Search Meetings Not Open," The Gazette, May 24, 2007, p. 7A. (The links to the Register and Press-Citizen, above, will let you read his analysis.)

Most of the discussion of this subject has assumed the open meetings law applies to UI Presidential Search Committee I and II, and has then focused on whether what those Committees have done complies with the terms of the law.

What Dean Hines is arguing is that whether the terms of the law have been complied with or not is simply irrelevant. Why? Because the Search Committees are not even subject to the law -- or, otherwise put, that a careful reading of Iowa Supreme Court opinions in the Donohue and the 2005 Vision Iowa cases could reasonably lead one to a prediction that the Iowa Supreme Court would likely find that the Search Committees are not covered by the law.

Ultimately, of course, the meaning of any law is what the courts say it is. (As U.S. Supreme Court Justice Robert H. Jackson once said, "We are not final because we are infallible, but we are infallible only because we are final.") A legislature may pass a law regarding how "yellow" and "red" are to be treated, and a court, confronted with "green," may decide that green is "yellow" because by "yellow" the legislature simply meant any color "substantially possessed of qualities of 'yellow.'"

So, rather than get into that kind of analysis, I'll simply set forth here, as a service to lawyers and generally interested persons alike, Section 21.2 of the Iowa Code.

The definitions sections are central to any "statutory interpretation." In this case, for example, to be subject to the requirements of "open meetings" the Search Committees must meet the standards of two statutory definitions: they must be a "governmental body" and the activities in which they engage must constitute a "meeting."

Here, first, is the Iowa Code (2007) defintion of a "governmental body" [with my comments, in brackets, following each category]:
21.2 Definitions.

As used in this chapter:

1. "Governmental body" means:

a. A board, council, commission or other governing body expressly created by the statutes of this state or by executive order. [This presumably would include the Board of Regents (which is "expressly created by" statute), but not its Search Committees, which are not.]

b. A board, council, commission, or other governing body of a political subdivision or tax-supported district in this state. [Not applicable; political subdivisions are counties and cities.]

c. A multimembered body formally and directly created by one or more boards, councils, commissions, or other governing bodies subject to paragraphs "a" and "b" of this subsection. [This could be argued to include a body -- such as the Search Committees -- created by the Board of Regents (a "governing body subject to paragraph "a").]

d. Those multimembered bodies to which the state board of regents or a president of a university has delegated the responsibility for the management and control of the intercollegiate athletic programs at the state universities. [This can be argued to be evidence that (a) the Legislature deliberately omitted Search Committees, or (b) its willingness to include at least this one example of such committees, and thus, by extension, others as well.]

e. An advisory board, advisory commission, or task force created by the governor or the general assembly to develop and make recommendations on public policy issues. [Not applicable; Search Committees are not created by the Governor or General Assembly.]

f. A nonprofit corporation other than a fair conducting a fair event as provided in chapter 174, whose facilities or indebtedness are supported in whole or in part with property tax revenue and which is licensed to conduct pari-mutuel wagering pursuant to chapter 99D or a nonprofit corporation which is a successor to the nonprofit corporation which built the facility. [Not applicable.]

g. A nonprofit corporation licensed to conduct gambling games pursuant to chapter 99F. [Not applicable -- notwithstanding the UI athletic program's reliance on gambling industry partnerships and revenues.]

h. An advisory board, advisory commission, advisory committee, task force, or other body created by statute or executive order of this state or created by an executive order of a political subdivision of this state to develop and make recommendations on public policy issues. [Not applicable.]
The second standard, or definition, that the Search Committees must meet in order to be subject to the Iowa open meetings law is that the activities in which they engage constitute a "meeting." Here is the Iowa Code (2007) definition of "meeting":
21.2 Definitions.

As used in this chapter:

* * *

2. "Meeting" means a gathering in person or by electronic means, formal or informal, of a majority of the members of a governmental body where there is deliberation or action upon any matter within the scope of the governmental body's policy-making duties. Meetings shall not include a gathering of members of a governmental body for purely ministerial or social purposes when there is no discussion of policy or no intent to avoid the purposes of this chapter."
In fact, in the case on which Dean Hines relies, Mason v. Vision Iowa Board, July 15, 2005, although the Iowa District Court decided that a committee of Board members did not constitute a "governmental body," the Iowa Supreme Court expressly declined to address that issue, focusing on the "meeting" definition instead ("we need not determine whether the committee is a governmental body because we agree with the district court that the committee’s meetings did not fall within the statutory definition of a 'meeting' . . .").

Without getting into an analysis of the court's opinion (which is available in full from the link immediately above), the relevant language from the definition would be "
deliberation or action upon any matter within the scope of the governmental body's policy-making duties."

Assuming the Search Committee does meet the definition of a "governmental body," does what it is engaged in doing constitute a statutory "meeting"? Is the winnowing of a pool of 100 or more potential UI presidents down to a group of four to be passed along to the Regents a task fairly characterized as a "policy-making duty"? (But, then, how relevant is that, given that there are many functions performed by governmental bodies, that all would concede must be in open meeting, that are not what one would normally characterize as "policy-making"?) And, even if it is "policy-making," is it a mere "advisory committee" role; is it a mere "recommendation" to the Board (as distinguished from "action") -- or is it the performance of a Regents' task, the making of a "decision" (at least as to those four)?

Now you figure it out. What do you think? Everyone can play this game.

UICCU and "Optiva"

The UICCU-Optiva story is essentially behind us. There may be occasional additions "for the record," but for the most part the last major entry, with links to the prior material from October 2006 through March 2007, is
"UICCU and 'Optiva'" in Nicholas Johnson, "UI Held Hostage Day 406 - March 3 - Optiva," March 3, 2007. Since then there have been two major additions: Nicholas Johnson, "Open Letter to UICCU Board" in "UI Held Hostage Day 423 - March 20 - UICCU," March 20, 2007, and "'Open Letter': Confirmation from World Council of Credit Unions" in "UI Held Hostage Day 424 - March 21 UICCU," March 21, 2007.

# # #

[Note: If you're new to this blog, and interested in the whole UI President Search story . . .

These blog entries begin with Nicholas Johnson, "UI President Search I," November 18, 2006.

Wondering where the "UI Held Hostage" came from? Click here. (As of January 25 the count has run from January 21, 2006, rather than last November.)

For any given entry, links to the prior 10 will be found in the left-most column. Going directly to will take you to the latest. Each contains links to the full text of virtually all known media stories and commentary, including mine, since the last blog entry. Together they represent what The Chronicle of Higher Education has called "one of the most comprehensive analyses of the controversy." The last time there was an entry containing the summary of prior entries' commentary (with the heading "This Blog's Focus on Regents' Presidential Search") is Nicholas Johnson, "UI President Search XIII -- Last Week," December 11, 2006.

My early proposed solution to the conflict is provided in Nicholas Johnson, "UI President Search VII: The Answer," November 26, 2006.

Searching: the fullest collection of basic documents related to the search is contained in Nicholas Johnson, "UI President Search - Dec. 21-25," December 21, 2006 (and updated thereafter), at the bottom of that blog entry under "References." A Blog Index of entries on all subjects since June 2006 is also available. And note that if you know (or can guess at) a word to search on, the "Blogger" bar near the top of your browser has a blank, followed by "SEARCH THIS BLOG," that enables you to search all entries in this Blog since June 2006.]

# # #

Media Stories and Commentary

See above.

Technorati tags: , , , , , , , , , , , , , ,

Nicholas Johnson's Main Web Site
Nicholas Johnson's Iowa Rain Forest ("Earthpark") Web Site
Nicholas Johnson's Blog, FromDC2Iowa
Nicholas Johnson's Blog Index


Anonymous said...

"If the Board of Regents was serious about having a UI president in place by July 1..."

I don't think either the Board of Regents or the search committee ever said they wanted to have a president "in place" by July 1. The search committee said they wanted to have a president appointed/announced by July 1. Once a president is appointed, it could be months before that person actually is "in place."

Anonymous said...

The Vision Iowa case may be relevant to the question of whether a meeting of just Search Committee members is covered by the open meetings law. But the meeting Kurtz is talking about was a REGENTS meeting which happened to also include all the Search Committee members. That meeting is certainly covered.