Wednesday, June 27, 2012

Giving Capitalism a Chance

June 27, 2012, 9:00 a.m.

Business is Better Without Taxpayer Dollars

There are a couple of good news items from the business community recently that I'd like to honor, as a break from the usual run of politician handouts, tax breaks, TIFs, subsidies, and earmarks.

The point is, capitalism is fully capable of getting the job done all by itself, without becoming intertwined with government. And when it does it's worth noting.

The Register recently reported that "Des Moines business leaders are discussing creating a private downtown economic development group that would pull together land for high-profile projects such as a new downtown YMCA or a convention center hotel. Investors in a proposed economic development group would guarantee up to $10 million . . . . Officials say no taxpayer money would be sought . . .." Donnelle Eller, "Question Marks of Downtown; D.M. Leaders Mull Creating Private Group to Help Develop Big Projects," Des Moines Register, June 24, 2012, p. D1.

Permit me to repeat that last line: "Officials say no taxpayer money would be sought . . .."

The other item is in this morning's Press-Citizen, and it involves Marc Moen. I have strongly opposed the City's contributions of taxpayers' money to his for-profit projects. But we share a vision of what the downtown needs, and his taste in art and architecture. So since today's news of his latest project involves nothing but his own money and none from the taxpayers, it's worth recognition and praise.

"Local developer Marc Moen funded the project, which he estimated to cost about $10,000. Moen and [artist Eliezer “Ely”] Sotillo proposed the mural May 15 to the Iowa City Council with a stamp of approval from the Public Art Advisory Committee. . . . It marks the first installation of public art in the city funded entirely by a private party." Mitchell Schmidt, "Artist completes downtown mural; Project took 17 gallons of white paint, 50 cans of black spray paint," Iowa City Press-Citizen, June 27, p. A1. [Photo credit: David Scrivner, Press-Citizen.]

These examples join the earlier SSMID (Self-Supported Municipal Improvement District) for downtown Iowa City, a self-imposed financial contribution from business owners, rather than from taxpayers, for the improvement and promotion of downtown. "SSMIDs, Taxes and TIFs: The Lessons," November 3, 2011.

Capitalism -- for its own preservation as well as consumer and citizen protection -- does need some oversight and regulation from government. What it does not need is a taxpayer contribution to survive. It can not only get by, it can actually do much better, without it.

So can the rest of us.

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Sunday, June 24, 2012

Sebring's Emails, Part II

June 24, 2012, 11:00 a.m.

How Private Emails Become Public Records

Nancy Sebring, former Superintendent of the Des Moines, Iowa, Schools, resigned after the public disclosure of personal emails she had sent to a lover.

The first blog entry regarding this case lays out more of the details that therefore need not be repeated here. "Sebring's affaire d' e-mail: Spotting the Issues; Was This Really an 'Email Policy' Resignation?", June 14, 2012. If you are interested in this case , and haven't yet read it, you might want to start there.

At the outset of that blog entry I asked, and then answered:
So what are "the issues" in a school superintendent's use of school computers and Internet access for personal messages? Initially, I see five categories of issues. (1) Inappropriate behavior in general (without regard to where, with what, or when). (2) Use of an institution's offices, facilities and equipment (whether government, schools, or private firms) for personal purposes. (3) Devoting time to other than assigned tasks during "working hours." (4) Unauthorized, or otherwise inappropriate, behavior with regard to the use of an institution's facilities. (5) Public records requirements. (Are "personal" emails "public" records?)
It then goes on to explain why that blog entry focuses on the romantic relationship, or "affair."
As a cyberlaw professor I'm drawn to the e-mail-related policy issues. But my initial reactions are that they were really peripheral to what happened in this case. And since a blog entry can't handle much more that this discussion of "issue 1," the rest will have to wait for later.

Sebring alleges, and no one contests, before the relationship was known it did not diminish the quantity or quality of her performance for the district. (Indeed, it may have increased both.) The added cost to the district of her computer use for personal purposes was so small as to be incapable of calculation. She was not engaging in hacking, cyber-bullying of employees, running a private business from her office, or other computer misuse of that nature.

Indeed, had her "personal use" been limited to innocuous messages involving rescheduling luncheons, or sharing items with family members, it is highly unlikely she would have been fired or found it necessary to resign.

Similarly, had she used a handheld device and an e-mail account unrelated to the school district, if the relationship and comparable private messages became public she might have had to resign anyway.

No, I think the media coverage, and resignation, resulted from the content of the messages, and the relationship they revealed, not the computer she used to compose and send them.
Nonetheless, that still leaves a number of issues involved in email regulations that were postponed in the first blog entry. (Throughout, I am using the word "agency" to include any unit of government in Iowa: e.g., school boards, University of Iowa, city councils, State and county agencies.)

(1) Behavior. Various modes of electronic communication (e.g., cell phones, email, texts, and tweets) are now so interwoven into our daily lives that they are likely to be involved in some way in almost all forbidden behavior. Accepting bribes from potential agency contractors, supervisors engaging in sexual harassment of employees, embezzlement of agency funds or theft of expensive agency equipment, awarding contracts or jobs or promotions to relatives and friends, running a private business from inside a government agency, may -- like Sebring's relationship -- come to light because of records of electronic communications. Violations of agency limitations on private use of computers may also be involved, and may even be cited as an added offense. But the primary concern involves the behavior, not the associated means of communication.

(2) Personal use of government equipment. How serious is the personal use of government computers?

The answer turns in part on what is being used. To illustrate with extremes, every time a government employee uses the bathroom in a government building they are engaged in "personal use of government property." Collectively, moreover, the paper supplies and water used by employees become a not insignificant incremental taxpayer expense. Using a government-owned vehicle for a family vacation is also a "personal use of government property." Few would think the first worth consideration. Most would think the second a serious felony.

So merely describing something as "personal use of government property" does not, alone, resolve whether the use is prohibited or permissible.

Moreover, there is no universal principle. To find the answer for a specific use by a specific employee in a specific agency one must search the relevant statutes, administrative regulations, union agreements, individual employee contracts, and institutional culture. Those standards vary from agency to agency (which is why its important for employees to find out what they are).

Consider the difference between the standards of the Des Moines Schools and the University of Iowa with regard to employee use of government computers. The Des Moines Schools' regulations do not (expressly) provide for private use. The University of Iowa's regulations do:

Des Moines Public Schools Policies and Procedures, Series 700 - Business & Operations, Code 737, "Use of School District Vehicles and Equipment," provides that use of school "technology" "in no event shall . . . be used by school employees . . . for private or personal gain." It more generally provides that use "shall be limited to school district business and related school district interests only." (On the other hand, it expressly provides, in Code 750, for "Public Use of School Facilities;" uses that are clearly not "school district business.") Des Moines Public Schools Policies and Procedures.

By contrast, the University of Iowa's regulations speak approvingly of "modest personal use" of technology that "should be used primarily for University-related . . . purposes." They provide that "personal electronic files . . . are not ordinarily . . . 'public records.'" They speak of "Individual Responsibilities" to "avoid excessive personal use;" that "personal use . . . should be kept to a minimum." Of course, like the Des Moines Schools, the University's regulations expressly provide that computers "shall not be used for personal commercial gain." University of Iowa Operations Manual, Chapter 19: Acceptable Use of Information Technology Resources (2002):

Agencies have a wide range of discretion in terms of what they can insist employees do and not do -- and the punishments for violations. Given school boards' current enthusiasm for "Zero Tolerance," presumably they could if they wished make even the most momentary, single personal email a firing offense. Whether that would be a wise policy is another matter.

Google provides its employees free gourmet food, fitness center, yoga classes, speaker series, in-house doctor, nutritionist, dry cleaners, massage service, personal trainer, swimming pool and spa. "Perk Place: The Benefits Offered by Google and Others May Be Grand, but They're All Business," March 21, 2007Knowledge@Wharton.

As the headline indicates, these companies consider such perks and respect for employees to be good business, practices that pay back far more than they cost. It's unlikely such companies would punish, let alone fire, an employee who used company equipment to send a personal email from company equipment.

It is my guess (unsupported by exhaustive data) that most progressive and successful institutions are closer to Google than the Des Moines Schools -- usually settling on an email policy that is some variant of the University of Iowa's policy.

(3) Private tasks during working hours. Although in a great many institutions the mere fact that an email was personal ("Honey, don't forget to bring home a gallon of milk tonight") would not be grounds for dismissal, excessive use and other abuses are another matter.

If an employee is spending three-to-four hours a day on their Facebook page, doing online shopping, or worse still running an online business from work, this is not so much a problem of "personal use of government equipment" as it is a failure to do one's job. It is the equivalent of leaving work early every day, abusing "sick leave," or watching sports or soap operas (whether online or on a TV set) for hours while at work.

On the other hand, some agencies, or supervisors, make clear to employees that they will be judged on their accomplishments, not the number of hours they spend "looking busy." To some degree, once quality work is regularly completed and submitted, and the employee's absence will not impose additional burdens on other employees (or deprive visitors of services), it's not necessary to stay until the final whistle blows.

This is especially true of agency administrators -- school superintendents, university presidents, or agency heads with various titles. They are, in some measure, charged with writing their own job descriptions. A university president may decide his most important task is to travel widely, meeting with potential donors, in an effort to increase the school's endowment. A newly appointed agency head, brought in to clean up prior scandals, may choose to spend a disproportionate amount of her time making speeches, and doing radio and television interviews. A college dean may think his most important task is to find and interview potential new faculty.

They may put in sixty or more hours a week at all hours and on weekends. (As we used to say in Washington, "Thank goodness it's Friday; only two more working days until Monday.") If they are skilled, genuinely productive, working hard at their job, trusted with the discretion with which they've been provided, it is not unreasonable for them to try to squeeze in "personal" time, phone calls, and emails whenever they can -- including during what is, for their nine-to-five employees, "working hours."

(4) Unauthorized computer use. If an agency employee is negotiating the terms of a bribe with a potential contractor, it is the bribe, and the negotiation, that is the offense. The same is true with sexual harassment of employees by supervisors. That an agency computer was used in the process is close to irrelevant insofar as the agency's computer use policies are concerned. The bribe, or sexual harassment, could have been engaged in without any use of agency technological equipment.

On the other hand, there are some forbidden activities that are dependent upon computer use. The University of Iowa's Operations Manual, "19.4 Individual Responsibilities," lists ten categories of examples. Some include sending spam, destroying files, inserting viruses, denial of service attacks, unauthorized access to electronic files, violating software licensing agreements, campaigning for political candidates, personal use that overburdens a computer network.

There are also numerous federal and state laws that prohibit activities that often, but need not, involve the use of computers, such as the unauthorized release of students' records or a teaching hospital's medical records.

(5) Public Records. Of the five categories of issues, and putting aside the first, discussed in the first blog entry, the fourth seems entirely inapplicable to Sebring. The third is probably inapplicable. If the Des Moines Schools apply a "Zero Tolerance" no personal use of school computers policy to all employees, then Sebring would seem to have clearly violated that standard.

But the primary issue, for her, her lover, their lawyers, the Des Moines Register, its readers, the school board, and Iowa District Judge Robert Hanson, has been whether these extremely private, personal emails should be treated as "public records" under the Iowa Public Records law (Iowa Code, Chapter 22). For the Register's take on the Judge's decision, see Mary Stegmeir and Jeff Eckhoff, "115 new Sebring emails released on judge's ruling; He refused to block them and also denied her former lover's bid to keep his name private," Des Moines Register, June 23, 2012.

Judge Hanson held that the personal emails, including the name of Sebring's lover, were "public records" under a literal reading of the Iowa law. Was this ruling, as appellate courts sometimes say, "clearly erroneous"? I don't think so. I believe it is a possible reading of the law.

I just think it is not compelled by the language of the Act, that it runs contrary to some provisions of the Act, directly contradicts the legislative history and purposes of the Act, and is not representative of the facts in most of the cases involving that Act. (That is, most public records cases involve records that do involve government, as distinguished from personal, business.)

It's true that the Act does not expressly provide that "private romantic or sexual emails between an agency employee and a non-employee shall not be considered 'public records.'"

However, the statutory language that is employed does not compel the conclusion that every scrap of paper sitting on a desk (such as a grocery list), and email (such as a rescheduling of a personal lunch), become "public records" merely because they are inside a government building or were key-stroked into a government computer.

Indeed Section 22.7 itemizes some 64 categories of paper and other records that are "confidential" and need not be treated as public records. So it is not a unique, unheard-of concept with regard to "public records" that some documents held by a government agency are not available to the media and public. That much is clear. Thus, if and when emails that are clearly private in nature, having nothing to do with what's normally thought of as government business, are found not to be public records they would not be an unprecedented first instance of such a category.

Moreover, at least some of these categories seem to reflect a consideration for personal and other privacy and an awareness of the personal harm that can result from unwarranted revelations. Examples include personal student records (Section 22.7(1)), medical records (22.7(2)), trade secrets (22.7(3), those that "would give advantage to competitors and serve no public purpose" (22.7(6), "personal information in confidential personnel records" (22.7(10) and (11)), records "which . . . would reveal the identity of the library patron" (22.7(13). There are many more.

(Of course, one must note the distinction between documents that (a) an agency must not reveal, (b) need not, but may reveal, and (c) must reveal. Section 22.7 begins, "The following public records shall be kept confidential . . .." That sounds like (a). However, it then declares, "unless otherwise ordered by . . . the lawful custodian of the records, or by another person duly authorized to release such information," which sounds much more like (b).)

So let's look at the purpose of the law, or its legislative history. Why do we have public records laws?

Public records laws (like open meetings laws) are designed to provide citizens (most often by way of local newspapers) an understanding of the basis for, and the process for developing, laws, administrative regulations, public policies, and other rulings and decisions that impact the public. It's not a case of (as broadcasters used to argue when I was an FCC commissioner), "the public interest is what interests the public." Of course the public is interested in juicy, National Enquirer-style gossip about sex (or other personal matters).

The inquiry needs to be, "Does the public have a need to know, or benefit from knowing (in their effort to understand law and policy), that an agency employee texted her child a reminder to go to his music lesson, or a fellow employee where to meet for lunch, or her partner a grocery list?" Or, in Sebring's case, a romantic or sexual message to a lover? I think not.

There are certainly some electronic messages that, while personal, do involve government business. Email exchanges regarding how a contract can be awarded to an otherwise excluded high-bidding friend are clearly not intended to be public, and yet they are equally clearly "government business." They are the kind of thing the Act is designed to make available to the media. Emails involving a romantic or sexual relationship (at least one that does not involve sexual harassment, relations between supervisors and employees, conflicts of interest, or otherwise of public significance) are not, in my judgment, what the drafters of the Act had in mind. Nor does their revelation serve the purposes of the Act.

Given the language of the Act (in general, along with Sec. 22.7 in particular), what the legislative history contributes to understanding the purposes of the Act, the issues in virtually all of the cases in which it has been interpreted, it seems to me quite clear that the Act is not intended to provide the public with personal scandal and gossip in no way related to government business.

Note that none of this has anything to do with an agency's ability to discipline or discharge an employee because of their use of agency computers for personal messages -- whether because of the content of those messages or because of the mere fact agency regulations forbid any employee use of computers for personal messaging.

For purposes of "public record" analysis, the sole question is whether such personal, private messages should be treated as "public" when they are requested by the media (or members of the public) under the public records Act. Whether they should lead to discipline raises an entirely different set of issues.

That's not to say it is a smart thing for a government employee to send personal emails from government computers -- least of all personal emails that are sexually explicit. Nor is it to say employers should be forbidden (or permitted) to monitor employees' emails to see if there is an over use of personal messaging. Those are other separate issues.

It is just to say that -- insofar as whether private messages are public records -- it is a little difficult to argue (not impossible, just a little difficult) to say that (a) someone should be fired for their private use of public property, and then argue that (b) this "private use" has somehow attained the status of a public record.

Finally, because this blog entry is an attempt at balanced analysis of the Public Records Act (among other things), devoid of emotional appeals, I have deliberately not dwelt on issues of compassion and decency in human relations, or the matter of journalistic ethics. So I will simply close with these excerpts from the Society of Professional Journalists' Code of Ethics, and leave it to the professional journalists to ponder their relevance to the media disclosures in this case:

Minimize Harm

Ethical journalists treat sources, subjects and colleagues as human beings deserving of respect.

Journalists should:

— Show compassion for those who may be affected adversely by news coverage. . . .

— Recognize that gathering and reporting information may cause harm or discomfort. Pursuit of the news is not a license for arrogance.

— . . . Only an overriding public need can justify intrusion into anyone’s privacy.

— Show good taste. Avoid pandering to lurid curiosity.

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Saturday, June 16, 2012

A Busch in the Hand is Worth . . .

June 16, 2012, 10:50 a.m.-June 22, 2012 5:45 a.m.

Who Knows? They Won't Tell Us

In exchange for all the beer he can drink, the University of Iowa's athletic "Herky" the Tigerhawk has signed a contract with Anheuser-Busch, brewers of Budweiser, to walk behind the Budweiser Clydesdales and pick up . . . well, a big bag of change.

How much? Herky can't talk, and UI administrators won't.

In a if-you-can't-beat-'em-join-'em switch in policy, the University has decided to join the company's push to encourage college students' binge drinking by linking its most prominent and popular logo with alcohol -- but this time share in the significant profits that will be produced by this joint venture. For example, did you know "For all of 2009, [Anheuser-Busch] posted a profit of $4.6 billion on $36.8 billion in revenue"?

Showing admiration and appreciation for the University of Iowa students' binge drinking reputation, a reputation that has made the UI one of the top party schools in the nation, an anonymous industry observer commented, "I have to say, now that Bud's bagged the UI's students I have to switch its stock from a 'hold' to a 'buy.' This one's big!" [Photo credit: Nicholas Johnson, Sept. 8, 2007, football game, scheduled times and bars for group binge drinking]

"Clyde Miller was right," he continued, crediting the originator of the quote, "It takes time, yes, but if you expect to be in business for any length of time, think of what it can mean to your firm in profits if you can condition a million or ten million children who will grow up into adults trained to buy your product as soldiers are trained to advance when they hear the trigger words 'forward march.'" [The quote appears in Nicholas Johnson, Test Pattern for Living (1972), Chapter 4, "Caution! Television Watching May Be Hazardous to Your Mental Health," p. 46, and Vance Packard, The Hidden Persuaders (1957), pp. 158-59.]

While this proposition applies to any product, it is of course particularly powerful if the products have potentially addictive qualities, such as tobacco and alcohol, and are unlikely to be taken up later in life if not first marketed to children from their pre-teens through college.

That's why this contract is such a win-win for everyone -- Anheuser-Busch's shareholders, the UI's administrators and coaches, and, of course, Herky. You can see from the photo how handicapped Herky now is in getting girls when everyone's sober and he has to stand, and so far away from them, for just a light kiss. [Photo Credit: Kyra Seay]

Well, there are some downsides, I suppose. UI students' consumption of alcohol, especially the binge drinking, seems to be involved in most of their arrests, fights, property damage, sexual assaults, criminal records, hospitalizations, accidental injuries, jail time, auto accidents and deaths, unwanted pregnancies, poor grades, the resulting early dropouts from school, and those dropped off of athletic teams.

But we must not jump to conclusions.

After all, as the ancient sages have often reminded us, "A correlation is not a cause." Who can know how much of this behavior would have occurred without alcohol? Unfortunately, as scientists remind us, it is impossible to find out, because there are apparently no colleges or universities in this country for which binge drinking is not a problem.

So until a university can be found where a controlled experiment can resolve once and for all whether alcohol is, in fact, a cause of this student misery and misdirection, it's best that higher education simply profit from it. After all, boys will be boys, and girls will be . . . well, girls will be abused. That's just the way it is.

With legislatures rapidly turning "public" universities into private universities, the money has to come from somewhere. This leaves public universities with two urgent missions: (1) to create the appearance of making modest reductions in what will be, of course, the ever-escalating rate of increases in students' tuition, while simultaneously (2) obtaining the revenue necessary to provide the essential and deserved immodest increases in administrators' income.

For more on the subject, see "UI's Alcohol Problem: Many Solutions, Little Will; Alcohol Back in the News? No, Always in the News," December 16,2009 (with links to 31 additional prior blog entries on the subject).

Here are some additional things to look for in the excerpts from the Register's story, below:

(1) Responsibility Matters. The two words "Responsibility Matters," to be included in the advertising designed to increase beer consumption and corporate profits, apparently were shrewdly slipped by the Anheuser-Busch lawyers. As everyone knows, and UI President Mason confirms (near the end of the following excerpts), there must be a body of literature somewhere regarding the impact of this very powerful phrase on excessive consumption of alcohol.

Apparently, the following scenario is not uncommon. Imagine a college-age binge drinker, having consumed three servings of beer in short order on his way to the definitional five (for "binge drinking"). When his eye catches one of the numerous signs advertising Budweiser beer, and he sees those two very powerful words, "responsibility matters," he immediately stops drinking, abandons his goal, and apologizes for his earlier boorish behavior. Who would have guessed? But you can't argue with science.

I have earlier written, "Telling officials always to TIF 'prudently' has proved as effective as liquor companies’ TV commercials, urging University of Iowa binge-drinking students always to 'drink responsibly.'" Nicholas Johnson, "Making a 'Prudent TIF' More Than an Oxymoron," Iowa City Press-Citizen, November 29, 2011, p. A7, embedded in "TIF Impact Statements," November 29, 2011.

Apparently I was wrong about that. However imprudent most TIFs turn out to be, "drink responsibly" or "responsibility matters," really do have a powerful impact on what would otherwise be college students' binge drinking. I now apologize for the inaccurate analogy to "TIF prudently," which as we all know has no effect on public officials whatsoever.

Fortunately, "Responsibility Matters," which has such an enormous impact in reducing college students' harmful behavior, does not interfere in any way with the normal decision-making processes of adults, especially educational administrators.

(2) UI Researchers Find, Reveal "Advertising Does Not Pay. Apparently the UI has pulled an even bigger scam on Anheuser-Busch than first revealed with the powerful "Responsibility Matters" campaign. The Daily Iowan reported June 21 that UI administrators and academics were questioning whether Anheuser-Busch would be getting anything at all for its advertising dollars invested in this deal, downplaying the notion that advertising has any effect on sales. Imagine the shock for Anheuser-Busch's shareholders and executives once they take a good hard look at this new data and realize the $607 million they spent on media advertising in 2006 had no impact whatsoever on sales. Wow, I'd hate to be trying to explain that at the next A-B board of directors meeting! Think of how silly the other major corporations are going to feel. Total projected media ad buys this year are estimated to reach $169.5 Billion. Super Bowl 30-second ads averaged $3.5 Million this year. All wasted.

For source material see, Amy Skarnulis, "Officials, Students Split on UI Anheuser-Busch Deal's Impact," The Daily Iowan, June 21, 2012 ("[O]pinions differ on whether or not the contract between Anheuser-Busch and the university would actually affect students' drinking habits. [A UI marketing professor] said he doesn't necessarily think the contract alone will encourage students to drink more. . . . [The official statement from a top University administrator declared] 'use of the Tigerhawk logo [to] be accompanied by the phrase 'Responsibility Matters' is consistent with our alcohol harm reduction initiative,' . . .. [Students agree; one is quoted as saying,] 'I really don't think it [the advertising campaign] will have that much of an effect.'"). "US Online Ad Spend Set to Exceed Print,", January 19, 2012; Charles B. Stockdale, Michael B. Sauter and Ashley C. Allen, "Companies that have wasted the most on Super Bowl advertising," The Bottom Line, MSNBC, February 4, 2012; Center for Science in the Public Interest,"Alcohol Policies Project Fact Sheet; Putting Anheuser-Busch’s Consumer Responsibility Campaign into Perspective," December 20008.

(3) Use of funds. Please note that "All proceeds from the beer deal will fund the university’s alcohol harm reduction plan."

As the one-time chair of the FCC, Rosel Hyde, used to tell us commissioners from time to time, "'The Lord giveth, and the Lord taketh away.' What could be fairer than that?" [Job 1:21, King James version.] The University can giveth to Anheuser-Busch's profits with the partnership that increases beer consumption and the consequences of binge drinking, and then taketh away all adverse consequences for students with UI's alcohol harm reduction plan. Who can argue with that Biblical truth?

Although it does seem that what the UI is doing is reminiscent of Jerry Seinfeld's effort to get inside the head of a race horse: "I’m sure the horses have some idea that the Jockey is in a big hurry. . . . [B]ut the horse must get to the end [and think], 'We were just here, what was the point of that!? This is where we were! That was the longest possible route you could take! If we just stayed here, we would of been first.'" "Jerry Seinfeld Stand-Up Routine," That's the kind of common horse sense that apparently went unspoken with regard to this Anheuser-Busch deal.

What is this about? The UI is going to do its damnedest to accelerate the consumption of alcohol by our students, and in the process Anheuser-Busch's profits. After all, that's why for-profit corporations advertise, especially with emotionally compelling logos for children, such as Joe Camel (to encourage smoking) or Herky (to encourage drinking). And the school is doing this to accomplish what? To raise money for its "alcohol harm reduction plan"?

Res ipsa loquitur is a legal phrase from tort law, when it is clear who is responsible for a negligent act. It means "the thing speaks for itself." (All of which prompted my torts professor, Texas' beloved Page Keeton to comment, "If the thing speaks for itself, why in the hell doesn't it speak English?")

In short, I think if the University is endeavoring to increase alcohol consumption to fund its "alcohol harm reduction plan," no more really need be said. Res ipsa loquitur.

(4) What's our cut? So we've established that UI's administrators and coaches are willing to sacrifice their students' health and welfare to raise more money. OK. That's not so uncommon.

After all, many of the nation's grade schools and high schools deliberately contribute to their students' likelihood of rotten teeth, obesity, and diabetes in exchange for the funds provided by their bottled beverage machines (that funnel most of the money to the sugared drink manufacturer and distributor). They do it with soda pop, the UI will do it with beer. What's the big deal? College students prefer beer.

If the NCAA disapproves of athletic programs' ties to the gambling industry, and yet the UI Athletic Department goes ahead and puts ads for a local casino on the football scoreboard, and provides the casino a sky box (with alcohol) for its high rollers, why should it feel restrained by the NCAA's discouragement of ties to the alcohol industry?

Like Steve Martin's Mavin Johnson character in the movie, "The Jerk," I, too, finally get it: "This is a profit deal" -- or, given the UI's non-profit status, an effort to increase cash flow. That being the case, since cash rather than student welfare is the goal, it seems to me the public and media have a right to know how much cash is involved, how financially successful is this tradeoff of values, and how the revenue from increased beer consumption will be divided between the company and the university.

There are bound to be nanny naysayers who will object to this creative revenue enhancing scheme. Let's bowl them over with just how much money this is going to produce. And then see if they still want to object.

So isn't it kind of counter productive (as the Register reports), that "[UI President Sally] Mason declined to say how much money the university will receive . . ."?

[Illustrative of the naysayers is UI Professor Jeffrey Cox, of whom the Register says, "The new deal [between the UI and Anheuser-Busch] highlights the ongoing conflict between the multibillion-dollar business of U.S. college athletics and the academic mission of universities and their efforts to curb students’ overconsumption of alcohol.

"Jeffrey Cox, a history professor on the U of I President’s Committee on Athletics, said it’s hypocritical for the university to spend money to curb drinking and arrest students for alcohol violations while also accepting money from beer companies.

"'I’ve said that repeatedly, and I’ll say it again. But it hasn’t really changed anybody’s minds,' he said."]

(5) "But Billy's mommy lets him do it." The Register's research reveals that, "Seven Big Ten Conference schools . . . said they had no sponsorships with companies that sell alcohol."

Some will try to argue that the UI shouldn't be doing what other Big 10 schools find ethically repulsive. I say, "Balderdash!" What is leadership anyway, if it's not a willingness to speak out and stand up for what you believe to be right, regardless of what the crowd says?

You mark my words, when those seven backward schools find out how much money the UI will be making from pushing beer consumption on its students, those other Big Ten universities are going to be coming around to the UI's plan pretty darn fast.

As the dogs have been heard to say in the Alaska Iditarod, "If you're not the lead dog, the view never changes."

I'm proud that the UI is the lead dog in this race for the money. It's looking straight ahead, it can enjoy the view (and the money); it is the leader of this pack of dogs.

(6) Where Next? Following UI's monopoly contract with Coca Cola (increasing the price on a popular beverage that contributes to dental decay, diabetes, and obesity), and alcohol (a factor in virtually all student problems), what other revenue possibilities are there for a university willing to profit from its students? Yale Cohn offered a suggestion in this morning's Press-Citizen as a guest cartoonist. [June 21, 2012, p. 7A; unavailable online.] He pictures a box of 30 1 mg tablets of Rohypnol" (Flunitrazepam) with the Tigerhawk logo and "Hawkeyes" proudly displayed on the box. He captions the cartoon: "What with the U of I signing a marketing contract with Anheuser-Busch, might as well go 'all in.'" The P-C's editor adds the explanatory note, "Rohypnol is commonly known as 'Roofies' and 'The Date Rape Drug.'" What other possibilities might we be able to come up with?

(7) What's New [June 22]? So what have we learned from this morning's Register story, below? (1) The UI (like virtually every other corporate and governmental institution in the country, up to and including the White House regardless of party) has yet to learn the principles of Crisis Communications 101. For example, it's better to provide fulsome information, explanations (and apologies when appropriate) at the outset than to go through the inevitable drip-drip-drip of revelations. "Crisis Communications 101," February 14, 2011. (2) The University's marketing of its good name, logos and students provides, not $50,000 but $5.8 million (this past year), with a promise of over $8 million a year for the next 14 years ($114 million through 2025-26). The funding of anti-binge-drinking programs has actually been cut, not increased. (3) Although UI has not yet reversed its position regarding use of the Tigerhawk logo on cans of Bud beer (that always remains a possibility), this agreement with Anheuser-Busch is not limited, as early reports had it, to posters. It apparently includes the right to a proclamation of the UI-Bud partnership on everything from shirts and hats to cups.

So what are the implications of (2), above? Where is this $114 million coming from, why, and where is it going? How will all this affect funding of the anti-binge-drinking programs?

UI, Hawkeye Sports Properties, and Learfield first said they couldn't and wouldn't even tell the media and public how much they got for selling off the University's name and logos to the cause of beer marketing. (No big deal, given these numbers, but even that report had to be revised. We were first told it was $50,000 a year, which somehow totaled $185,000 over four years. Now we see it starts at $43,000. Whatever.) But $185,000 is but 1/2 of 1% of the $32 million marketing dollars over four years (and but 16/100th of 1% of the contract term's $114 million. So where's the 99% coming from? For what? What else are we marketing? How much is it producing?

Where is this money going? Is it all going into coaches' salaries and other athletic program expenses (aside from the pittance going to reducing the alcohol problem the contract is otherwise promoting)? How much is going to help reduce the tuition now charged student drinkers and non-drinkers alike? The "University of Iowa" is really two major, corporation-like operations, and one minor endeavor -- the UIHC, the athletic department, and the instructional and research activities elsewhere on campus. How much of all this income is going to the cash-strapped educational mission?

According to the story, the UI was budgeting $500,000 a year for anti-binge-drinking efforts. (It would be interesting to know what was, and was not, included in that figure.) This year, that figure was cut to $300,000. Thus, the net effect of this Anheuser-Busch deal, promoting the sale of beer while providing money for the UI to discourage its consumption, will be to decrease rather than increase the program's funding. If this year's funding is continued at the $300,000 level, the program will have been cut only $157,000 rather than $200,000. That's better than eliminating it entirely, I suppose, but it's scarcely a big boost to what the UI was doing just last year.

And what about (3), above -- the expansion of A-B's use of the Tigerhawk logo from "retail displays such as posters and flags" (as we were originally told) to caps, shirts, and cups. Once the UI's students are gathered under Bud banners blowing in the wind, wearing their Bud hats, and their Bud shirts, and pouring their Bud into Bud cups, someone please tell me how that's a big improvement over keeping the Tigerhawk off of the can from which the beer was poured? Can the company insist coaches and players wear a Bud logo on their uniforms, along with the Nike swish? Will the Anheuser-Busch flag fly from the stadium along with those of other Big 10 schools? No, based on what has already been agreed to, this could blossom forth as a complete Anheuser-Busch take-over of UI's football Saturdays.

Who remembers Nile Kinnick anyway besides me? Why don't we just move his statue, take his name off the stadium, and re-christen it the "Anheuser-Busch Stadium"?

(8) Iowa Fight Song revisions. Although it's not yet been officially announced, I understand Anheuser-Busch has approved the revisions in the Iowa Fight Song the UI Music Department has been requested to prepare. Here are the original words, followed by the new version:

The word is "Fight! Fight! Fight! for IOWA,
Let every loyal Iowan sing;
The word is "Fight! Fight! Fight! for IOWA,"
Until the walls and rafters ring (Go Hawks!)
Come on and cheer, cheer, cheer, for IOWA
Come on and cheer until you hear the final gun.
The word is "Fight! Fight! Fight! for IOWA,"
Until the game is won.

We're going to "Drink! Drink! Drink! for IOWA,
Give every loyal Iowan some booze;
We're going to "Drink! Drink! Drink! for IOWA,
'Cause if you snooze you loose (Go Hawks!)
Bring on the beer, beer, beer, for IOWA
Come on and drink until you fall down on the floor.
We're going to "Drink! Drink! Drink! for IOWA,
And then we'll drink some more.

Of course, the official University of Iowa anthem indicating the final end of home football games will remain the much beloved "In Heaven There Is No Beer":

In Heaven there is no beer
(No beer?!)
That's why we drink it here
And when we're all gone from here
Our friends will be drinking all the beer.


For details on the contract, see Jens Manuel Krogstad, "Anheuser-Busch, U of I make deal on use of logo; U of I president sees no conflict with stance against binge drinking," Des Moines Register, June 15, 2012:
The University of Iowa and Anheuser-Busch have renewed their relationship, a move some say conflicts with the university’s high-profile
responsible-drinking campaign.

A new four-year agreement approved this month by the U of I athletic department allows Anheuser-Busch to place Iowa’s Tigerhawk logo on retail displays such as posters and flags, and promotional giveaways like cups, caps and T-shirts.

The Tigerhawk may appear alongside Anheuser-Busch beer logos like Budweiser, Busch, Michelob and Natural Light. All the items the logo will appear on, however, require athletic department approval, and must include the message “Responsibility Matters.”

The new deal highlights the ongoing conflict between the multibillion-dollar business of U.S. college athletics and the academic mission of universities and their efforts to curb students’ overconsumption of alcohol. . . .

All proceeds from the beer deal will fund the university’s alcohol harm reduction plan, launched in 2010 to reduce binge drinking, said Sally Mason, president of the U of I . . ..

[UI President Sally] Mason declined to say how much money the university will receive . . ..

[T]he agreement stands out among U of I’s peers.

Seven Big Ten Conference schools reached Thursday [June 14] by The Des Moines Register said they had no sponsorships with companies that sell alcohol: Michigan, Michigan State, Minnesota, Nebraska, Northwestern, Ohio State and Purdue. . . .

Financial details and copies of the sponsorship agreement are not available because officials at the taxpayer-funded university contend the contract is not a public record. . . .

University officials disagree on whether the Anheuser-Busch sponsorship conflicts with the university’s efforts to curb binge drinking. . . .

[UI President Sally] Mason defended the deal Thursday, . . .. “The requirement that the possible use of the Tigerhawk logo be accompanied by the phrase ‘Responsibility Matters’ is consistent with our alcohol harm reduction initiative. The university will continue to emphasize that students and fans should consume alcohol only in a legal, safe and responsible manner."

Members of a committee [the UI President's Committee on Athletics] charged with advising the athletics department on various issues first learned of the new sponsorship deal Thursday [June 14] from The Des Moines Register . . ..

[The Chair] said it’s unclear to him whether a beer corporation’s “Responsibility Matters” advertising campaign will help or hurt the university’s efforts to encourage responsible alcohol use. . . .

[Another member noted] “I believe that participating in a corporate campaign whose ultimate aim is to increase beer sales to persons who have a positive regard for
university athletics (students, fans, alums) is probably a poor idea and one that undermines our efforts to encourage the responsible use of alcohol."

Versions of this story have also appeared in the Iowa City Press-Citizen as Jens Manuel Krogstad, "Busch, UI Make Deal on Logo Use; President Sees No Conflict with Stance Against Binge Drinking," Iowa City Press-Citizen, June 15, 2012, p. A1, and The Gazette as "Iowa Signs Marketing Deal with Anheuser-Busch," Associated Press/The Gazette, June 16, 2012, p. B4. And see Aly Brown, "Busch's UI Deal Draws Fire; Learfield Communications Will Pay the UI Athletics Department $114 million through 2026 as Part of a Larger Deal," The Daily Iowan, June 19, 2012, p. A1, and the commentary, Ben Evans, "A Little Busch Goes a Long Way," The Daily Iowan, June 18, 2012, p. A4.

This morning [June 22]the Register's Jens Manuel Krogstad shares more of what he's been able to pull out of the UI: Jens Manuel Krogstad, "Anheuser-Busch to pay U of I $185,000; As part of logo deal, company will help fund anti-binge-drinking programs," Des Moines Register, June 22, 2012. Here are some excerpts:

Beer giant Anheuser-Busch will pay the University of Iowa about $185,000 over four years to help support the university’s anti-binge-drinking programs, an athletics department official said.

The payments, which start at $43,000 and scale up to $50,000 the final year, are part of a sponsorship agreement finalized this month that allows Anheuser-Busch and the U of I Tigerhawk logos to appear together on some merchandise and advertisements.

In 2011, the university budgeted $300,000 for anti-binge-drinking programs, $200,000 less than the year before.

U of I President Sally Mason last week declined to tell The Des Moines Register how much the university would receive and referred the question to Hawkeye Sports Properties. A company official declined to provide any financial details of the deal.

On Thursday, however, Mason told Iowa Public Radio that Anheuser-Busch would pay the university $50,000 per year.

The athletic department contracts with Hawkeye Sports Properties to handle all of its sports marketing, including sponsorships. The university and the company contend the sponsorship agreements are not public record, because Hawkeye Sports Properties is a private company owned by Missouri-based Learfield Communications.

The U of I, a public university, received $5.8 million from the company last year. The contract calls for the university to receive $114 million through 2026.

Critics say the deal with Anheuser-Busch, which replaces an expiring three-year deal, conflicts with the university’s efforts to reduce underage and binge drinking.

U of I professor Mike O’Hara, a member of the Presidential Committee on Athletics, said in an email to other members of the committee the fundamental problem with the deal is that the university is not aligning its actions with its values. He said he was dismayed the 17-member committee, created to advise the athletic department on issues like this, was not consulted.

“As an academic institution we have an obligation to set a very high standard for ourselves and be willing to forgo financial benefit when it conflicts with our core values,” O’Hara said.

Athletic department officials told the Register last week that a new addition to the agreement allows the beer corporation to place Iowa’s Tigerhawk logo on retail displays such as posters and flags, and promotional giveaways such as cups, caps and T-shirts. . . .

Stay tuned.

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Wednesday, June 13, 2012

Sebring's affaire de e-mail: Spotting the Issues

June 14, 2012, 3:30 p.m.

[If you're interested in this blog entry, you might also want to see "Sebring's Emails, Part II; How Private Emails Become Public Records," June 24, 2012.]

Was This Really an "Email Policy" Resignation?

Internal Links to Contents

Language and Issue Spotting
The Superintendent's "Affair"
Morals Clauses
University of Iowa Tech Use Regulations

Nancy Sebring was one of Iowa's most outstanding, solid, well-regarded school superintendents. In Des Moines, she was leading one of the state's largest and most challenging school districts.

I recall meeting her when a great grandchild of mine was in her school system, and talking school board issues with her (as a former member of the school board for the Iowa City Community School District). She was as impressive in person as was her record on paper.

In May of this year she announced she would be resigning as superintendent, and later that she was accepting a comparable position in an even larger school district: Omaha.

Then, over a weekend, it all came crashing down.

It turned out she had sent some personal emails to a friend, using school computers and Internet connections. Because both the school district and the media considered these emails "public records" under Iowa law, once requested they were handed over and soon spread upon the front pages of major newspapers.

Why this media and public interest? These were not simple, brief emailed requests like, "Honey, please pick up some milk on you way home tonight," or, "Could we make lunch next Wednesday instead of Monday?" These were romantic exchanges with someone other than her husband, characterized as "an affair." E.g., "revelations of the affair were made public on Friday." Lee Rood, "Sebring tries to stop release of more emails," Des Moines Register, June 7, 2012.

It was the stuff of the gossipy, privacy-violating, sometimes fictional, supermarket tabloid National Enquirer. (Here are some illustrative headlines from its current online issue: "Mitt Romney Backstreet Abortion Shocker," "Travolta's Six-Year Affair with Male Pilot," "World's Fattest Bride," "Cops Probe Psycho Cannibal Porn Killer in Hollywood," "Zombie Apocalypse Now," and "The Dingo Did Eat Her Baby.")

Can you imagine how the Enquirer would handle and headline the Sebring story? Perhaps: "Iowa School Officials Cool to Administrator's Hot Sex."

Now don't get me wrong, judging, let alone condoning, the propriety of the superintendent's actions -- whether the relationship or her use of school computers to maintain it -- is not the subject of this blog entry.

Language and Issue Spotting

My purpose is simply an exploration of our use of language in how we analyze and think about the many issues surrounding email (and other Internet) use by employees.

Precision in the use of language is crucial in making wise decisions.

A corporation has to address, and express precisely, "What business are we really in?" A research scientist knows it's often more difficult to frame the question than to find the answer. In personal life, asking impossibly vague questions such as whether one is "successful" or "popular" or "rich" is more likely to lead to demoralization than answers. Coming up with the most appropriate measures in establishing John Carver's "ends policies" for board governance, or a management information reporting system, is hard work. How a doctor phrases a diagnostic question to a patient may end up being literally a matter of life or death.

In law school we speak of "spotting the issue."

No matter how good a lawyer's legal theory may be, no matter how much her winning appears to be a slam dunk, if she fails to "spot the issue" regarding a statute of limitations that has already run, or an exclusionary rule of evidence that will keep her convincing facts from the jury, she may lose not only her case but the client, her professional reputation, and in some instances her license to practice law.

So what are "the issues" in a school superintendent's use of school computers and Internet access for personal messages?

Initially, I see five categories of issues.

(1) Inappropriate behavior in general (without regard to where, with what, or when).

(2) Use of an institution's offices, facilities and equipment (whether government, schools, or private firms) for personal purposes.

(3) Devoting time to other than assigned tasks during "working hours."

(4) Unauthorized, or otherwise inappropriate, behavior with regard to the use of an institution's facilities.

(5) Public records requirements. (Are "personal" emails "public" records?)

The Superintendent's "Affair"

As a cyberlaw professor I'm drawn to the e-mail-related policy issues. But my initial reactions are that they were really peripheral to what happened in this case. And since a blog entry can't handle much more that this discussion of "issue 1," the rest will have to wait for later.

Sebring alleges, and no one contests, before the relationship was known it did not diminish the quantity or quality of her performance for the district. (Indeed, it may have increased both.) The added cost to the district of her computer use for personal purposes was so small as to be incapable of calculation. She was not engaging in hacking, cyber-bullying of employees, running a private business from her office, or other computer misuse of that nature.

Indeed, had her "personal use" been limited to innocuous messages involving rescheduling luncheons, or sharing items with family members, it is highly unlikely she would have been fired or found it necessary to resign.

[I haven't researched the details of her school district's computer and phone personal use policy, but here is one example of a common approach: "Electronic media and service are primarily for City business use. Limited, occasional or incidental use of electronic media (sending or receiving) for personal, non-City purposes is acceptable, as is the case with the occasional receipt or placement of personal phone calls." Excerpt from "Pleasant Hill City Manager Contract,"
p. 15, Section 7.2, "Electronic Media, Internet and Cell Phone Use". Even without such an administrative rule, or contractual provision, this would be a reasonable, common sense way to treat de minimis use of an employer's property.]

Similarly, had she used a handheld device and an e-mail account unrelated to the school district, if the relationship and comparable private messages became public she might have had to resign anyway.

No, I think the media coverage, and resignation, resulted from the content of the messages, and the relationship they revealed, not the computer she used to compose and send them.

Had she not been married, a relationship with a male friend would have been less problematical (although the explicit language in the emails might still have been an issue for the school board). Therefore, the nature of her "marriage" is relevant -- because the word "affair" suggests she may have been unfaithful to a husband in a strong, ongoing marriage.

Here is an excerpt from how her husband describes it: "Nancy and I have lived separate and independent lives for the past seven years. Our careers have led us in different directions both geographically and personally. We remain friends and enjoy spending time with our children and grandchildren." Lee Rood, "Sebring tries to stop release of more emails," Des Moines Register, June 7, 2012.

How does one go about fairly evaluating what she did (as distinguished from her choice of language in messages she believed to be private)? Was her rejection by two school boards -- or their acceptance of her resignation -- reasonable under the circumstances, and if so why or why not?

Because the answer turns, in large measure, on those boards' reflection of the values and standards of American society -- and in this case Iowans -- it's useful to try to figure out what they are. It's not an easy search. Partly this is because of the language we use to talk about them. Words like "affair," "adultery," "faithful," or "sexual harassment" can cover such a wide variety of behaviors, with an accompanying wide variety of reactions, as to impede their utility as a result of being both under- and over-inclusive.

President Clinton's involvement with Monica Lewinsky gave rise to a national conversation exposing the realization we can't even agree on what the phrase "sexual relations" includes (i.e., oral sex as well as sexual intercourse?). By his definition (and that of many high school and college students) he was telling the truth when he insisted, "I did not have sexual relations with that woman, Miss Lewinsky." "Lewinsky Scandal",

Moreover, opinions and reactions vary with one's socio-economic group, educational level, geographic residence, religion, social friends' values -- not to mention personal experience and many other variables. They also vary over time; meaning both the century in question and one's age.

So let's take a stab at it.

Americans' attitudes about sex, from the time of the Pilgrims until today, have been highly charged -- emotionally, politically, socially, legally, judgmentally, and religiously. So it is not surprising that when "sex" is involved in stories about high profile individuals there will be great public interest in the gossip and details.

However, attitudes regarding sexual relations vary across a broad spectrum. Some think any sex with anything or anybody at any age or any time is inappropriate. Some think sex within marriage ("between one man and one woman") is OK, so long as it is for the purpose of creating children. Others think it's OK whatever the purpose.

What about sexual activity by and among those who are unmarried (single, divorced, long-time separated)? What if one of the couple is single and the other is married (to someone else)?

Given the number of births to young, unmarried mothers, one would have to conclude that, whatever they may believe, a lot of singles are engaged in sex outside of marriage. Jason DeParle and Sabrina Tavernise, "For Women Under 30, Most Births Occur Outside Marriage," New York Times, February 18, 2012, p. A1 ("It used to be called illegitimacy. Now it is the new normal. . . . [M]ore than half of births to American women under 30 occur outside marriage.").

On the other hand, some, but relatively few, will openly say it's OK for a married person to have a sexual relationship with someone other than their spouse. The so-called "open marriage" movement of the '70s was not spectacularly successful.

On the other hand, once again practice varies somewhat from professed belief -- and possibly varies even more than the statistics drawn from those willing to confess they've strayed would indicate. Tara Parker-Pope, "Love, Sex and the Changing Landscape of Infidelity," New York Times, October 28, 2008, p. D1 ("[T]he General Social Survey . . . data show that in any given year, about 10 percent of married people — 12 percent of men and 7 percent of women — say they have had sex outside their marriage. . . . [T]he lifetime rate of infidelity for men over 60 increased to 28 percent in 2006, up from 20 percent in 1991. For women over 60, the increase is more striking: to 15 percent, up from 5 percent in 1991.").

Even within these statistics, and the range of individuals' opinions about them, circumstances seem to make a difference.

At one extreme is former presidential candidate John Edwards, who represented while campaigning that he had a good marriage with his wife (who ultimately died of cancer), while he was having an ongoing sexual relationship that he denied, as well as denying his paternity of a child born of that relationship, for which he had an aide take responsibility, while using money from a wealthy campaign supporter to support and silence the mother. Neil A. Lewis, "For Edwards, Drama Builds Toward a Denouement," New York Times, September 20, 2009, p. A1.

On the other hand, there is the single "one-night-stand," or very brief and casual relationship, during an otherwise solid and lengthy marriage (as distinguished from an undisclosed, serious, ongoing relationship that undermines the marriage and lasts for years).

Some women (and men) accept such behavior from their spouse -- or at least don't pursue a divorce. Anne Sinclair, the billionairess wife of the womanizer and former IMF Director Dominique Straus-Kahn, (who certainly doesn't need to stay with him for his money) has said of him (even before the New York incident with the chambermaid), "It’s important to seduce, for a politician. As long as he is still attracted to me, and I to him, it is sufficient." Vanessa Grigoriadis, "The Womanizer’s Wife; Billionairess Anne Sinclair stood by her man when just about everyone else in the world believed the maid. Is it that she knows Dominique Strauss-Kahn? Or that she doesn’t?" New York Magazine, July 31, 2011.

Similarly, speaking of President Bill Clinton's relationship with Monica Lewinsky, then-presidential candidate Hillary Clinton said, "she had been embarrassed by Bill Clinton's cheating, but said she knew all along that he loved her. 'I never doubted Bill's love for me, ever . . .." "'I never doubted Bill's love': Hillary Clinton speaks for first time about Monica Lewinsky affair," Daily Mail [London], January 18, 2008.

Of course, now-Secretary Clinton also added on that occasion, "every case is unique. . . . 'No one story is the same as any other . . .. I can't possibly substitute my judgment for yours, but what I can tell you is you must be true to yourself.'"

And at the other extreme from Sinclair and Clinton are millions of women, and men, who decide that being "true to yourself" compels a divorce as a consequence of sometimes far less serious perceived transgressions by a partner (including what may have been in fact wholly innocent behavior), and behavior accompanied by none of the public humiliation suffered by celebrities from the media.

The Sebrings situation involved separation.

"Separations" can vary between temporary (whether because of a job relocation, or while the couple tries to "work things out"), and relatively long term and permanent (as seems to have been the case for the Sebrings). As quoted near the beginning, her husband described their relationship this way: ""Nancy and I have lived separate and independent lives for the past seven years. Our careers have led us in different directions both geographically and personally. We remain friends and enjoy spending time with our children and grandchildren." Lee Rood, "Sebring tries to stop release of more emails," Des Moines Register, June 7, 2012. This sounds like their status was, in fact if not in law, the full equivalent of divorce -- insofar as the social standards regarding fidelity are concerned.

From her husband's statement, he would seem to have been not at all surprised or upset that she would have other male friends with whom she might, or might not, have had sexual relationships.

Ms. Sebring said of her e-mail-based relationship that it "lasted a little over a month and has now ended" -- something that some would find ameliorating (because it was short-lived) and others would find more serious (because suggestive of additional relationships). Indeed, Sebring's reference to her "personal relationship in this case, or any other case," might suggest that possibility. Mary Stegmeir, "Nancy Sebring's sexually explicit emails disclosed; Her early exit as Des Moines schools superintendent was triggered by their discovery,", Des Moines Register, June 3, 2012.

These nuances might not make a significant difference to a school board's evaluation of their superintendent, and I'm not passing judgment one way or the other on either the superintendent or the board.

However, as I began this blog entry, language matters. In the realm of moral judgments, a word like "affair" (like the expression "sexual harassment") is used to describe a widely disparate range of situations and behaviors.

Therefore, I do believe the media does have an obligation in such a high profile case as Sebring's to be fair and precise.

I hear the echo of Joseph N. Welch's comment, following a similar loose use of language by Senator Joseph McCarthy during the Army-McCarthy hearings: "Have you no sense of decency, sir? At long last, have you left no sense of decency?" "Joseph N. Welch",

It is not my purpose to judge what Superintendent Sebring did, either in her relationship or in her use of the school's email -- though I suspect, in retrospect she wishes she'd done things a little differently. Nor do I mean to suggest that the media has been the moral equivalent of Senator Joseph McCarthy or the National Enquirer. Judgment is neither my purpose nor my proper role.

My only contention is that it seems to me simple fairness would have dictated that the full texts of the explicit language in what were, after all, believed by the senders and recipients to be private in the extreme (even if they were mistaken in so thinking) did not need to be distributed to all the readers of mass-distributed newspapers. It is for that reason those texts have not been included in this blog entry.

At a minimum, fairness and decency required as much precision as possible in making clear that Nancy Sebring's "affair" was not John Edwards' "affair."

Morals Clauses

There is another enormous issue here which I'm not going to take time and space to explore, and that is the use of "morals clauses" in institutions' contracts of employment. Schools used to forbid, not only pregnant married women from teaching in their classrooms, but married women whether pregnant or not.

"[T]he scandal has prompted Iowa city and school officials to consider whether morality clauses should be part of the employment agreements signed by top public sector executives. A review of the contracts of more than two dozen Iowa school superintendents, city managers and county administrators showed that the inclusion of the clause — which allows employees to be fired for moral or ethical breaches — is not common. But, in education in particular, the current trend favors tighter controls on employee conduct, contract law experts said." Mary Stegmeir and Josh Hafner, "Few public contracts have morals clauses; But many school, municipal leaders' conduct in office is covered by other language," Des Moines Register, June 10, 2012.

In what jobs, contexts, and under what conditions are which personal qualities or behaviors grounds for dismissal?

Who will decide what constitutes "immoral" behavior? What procedures will be used to evaluate alleged transgressions?

To what extent should disciplinary actions be limited to immoral behavior that interferes with workplace performance? Ms. Sebring asserts that “my personal relationship in this case, or any other case, did not interfere with my job performance.” It apparently did not involve any district employee. Mary Stegmeir, "Nancy Sebring's sexually explicit emails disclosed; Her early exit as Des Moines schools superintendent was triggered by their discovery,", Des Moines Register, June 3, 2012. Notwithstanding the self-serving nature of her assertion, it's certainly plausible. It's possible the relationship even increased her energy and on-job performance.

When, and for which behavior, is it appropriate for an employer to try to regulate off-premises behavior? For example, if an employee can be fired, or not hired in the first place, for smoking in the workplace, can they be similarly rejected for smoking at home? If a college baseball team's first baseman can be dropped for using steroids, does the same standard have to apply to the marching band's first trumpet player? If an employer can fire a worker for having an "affair" with a co-worker, does it follow that they can also lose their job for an affair with someone who is not?

Could a pharmacy (without religious affiliation) that refuses to supply customers with birth control pills, fire an employee caught telling a potential customer which local pharmacies do carry the pills? If so, could it also fire that employee for an off-premises letter to the editor, or comment on a call-in radio program, on the subject? For a private, off-premises conversation with a friend? Compare, Laurie Goodstein, "Obama Shift on Providing Contraception Splits Critics," New York Times, February 15, 2012, p. A12.

So many issues, so little time and space. Perhaps there will be more to come at some point regarding the cyberspace issues.

# # #

Excerpts from University of Iowa Tech Use Regulations


Although modest personal use of University-supplied technology resources may improve the skills of individual users and otherwise contribute indirectly to the University's mission, these resources should be used primarily for University-related educational and administrative purposes.


Although it is the University's position that personal electronic files of faculty, staff, and students are not ordinarily to be considered "public records," users should be aware that a court of law, and not University officials, may ultimately decide such issues.


f. Avoid excessive personal use. Consistent with University telephone procedures (see VI-3.6), personal use of computer resources should be kept to a minimum. Personal use may be excessive if it takes place during regularly scheduled work time, if it overburdens a network, if it results in substantial use of system capacity, or if it otherwise subjects the institution to increased operating costs. Some uses will be plainly excessive in all environments, but the extent to which other uses become excessive may vary among units. In those instances, supervisors will provide more specific guidance to individual users by formulating unit policies or providing advice on a case-by-case basis.

g. Refrain from prohibited personal uses. Information technology resources, including the University's electronic address (e-mail, web), shall not be used for personal commercial gain, for charitable solicitations unless these are authorized by the appropriate University officer, for personal political activities such as campaigning for candidates for public office, or for lobbying of public officials. For purposes of this policy, "lobbying" does not include individual faculty or staff sharing information or opinions with public officials on matters of policy within their areas of expertise. Faculty and staff consulting that is in conformity with University guidelines is permissible.

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Monday, June 11, 2012

E-Commerce Challenges Businesses, Governments, Taxpayers

June 11, 2012, 6:40 a.m. p.m.

Brief Intro:

Businesses, governments and taxpayers across Iowa's 99 counties and hundreds of cities and towns (indeed throughout America) are confronting three challenges from e-commerce in a global economy.

(1) Iowa's nationally and locally owned retail outlets, newspapers, and bookstores are struggling to find business models that will carry them from small town virtual monopoly storefronts into the highly competitive global marketplace of Web pages and social media.

(2) State, county and local governments are trying to figure out what they can best do to help the economies and communities of constituents for which they feel some responsibility.

(3) Taxpayers are questioning the wisdom of a "solution" that involves transferring their tax dollars from legitimate government projects to the bottom line of a handful of politically favored for-profit enterprises. Especially do they question the transfers when the money is used for business plans that appear to be pretty unimaginative responses to "e-commerce."

These issues were recently explored in depth here in "Big Boxes, Little Bookstores and Taxpayers; We'll Leave the Prairie Lights on For You," June 6, 2012.

That blog entry provided the research and source material, with links, for what ultimately became a column in this morning's Press-Citizen, below. If this is a subject that interests you that earlier blog entry is worth your exploration. Otherwise, this lighthearted 644-word column will provide a quick-read, summary view of these deadly serious issues.

Maybe Taxpayers Should Buy Wal-Mart a Gift Shop
Nicholas Johnson
Iowa City Press-Citizen
June 11, 2012, p. A7

The Iowa City Council, at least three members, recently leapfrogged over their colleagues to rule that local taxpayers should pay for a local business’s “museum quality gift shop” and café.

To “speed things up a little bit” they delegated the matter to the discretion of the city manager.

The grant is not even a TIF. It’s a $27,500 gift, plus a possible $15,000 1 percent loan.

Why do it? They want to “educate the public about eCommerce.”

The lucky beneficiary of this largesse? Iowa City’s Prairie Lights — widely beloved, and by no one more than me. But our love is not the issue.

The issue? Whether taxpayers really support the council handing over taxpayers’ money, without their approval, to favored for-profit businesses.

Clearly, the council is not interested in the answer.

Confronted with a petition to put public review of one of its latest controversial TIFs on the ballot, the council’s response is to suggest using a legal technicality to make the payment anyway, using a bond that citizens’ petitions can’t challenge.

This council switch would cost taxpayers an additional $300,000. The council thinks it’s worth the money to keep citizens at bay.

If it’s legally required we vote on the bonds to fund legitimate governmental projects, like the proposed county justice center, isn’t it even more appropriate the public be involved in taxpayer funding of private, for-profit businesses?

Capitalism means owners provide the capital, sometimes profit handsomely, but also bear all risks.

Socialism means governments own and provide traditional governmental services like police, fire, parks, schools, roads, libraries — and smoldering landfills.

What we’re doing — in Washington, Des Moines and Iowa City — is corporatism, the intertwining of business power and government largesse.

During World War II, in Benito Mussolini’s Italy, we called it fascism. Owners take the profits; taxpayers take the risks.

If that’s what local taxpayers truly want, there’s probably a way it can be provided constitutionally. But is that really what we want?

E-commerce? Aside from the café and gift shop, the city says this is the store’s “attempt to adapt to the ever-changing traditional and electronic market.”

That raises some issues.

According to the store’s website, it’s already in that business. Moreover, the owner concedes, “there’s no overhead.”

Every business confronts the “ever-changing traditional and electronic market,” including this newspaper.

Change can put a business out of business. However, this is the capitalist’s challenge, not the taxpayer’s responsibility.

Swiss watchmakers respond to digital watches, slide rule firms to calculators, mainframe computers to desktops, cellphones to smartphones — the examples are endless.

Bookstores are challenged with online sales, e-books, online self-publishing, Wal-Mart (40 percent of all best-seller sales), the cornucopia of Internet resources, the decline in discretionary time for reading.

Convenience, as well as savings, motivates e-book readers. If they can download a book to their Kindle while in bed and get advice from the Internet, why would they get out of bed and come to Prairie Lights for “a staff member to assist customers in e-book sales”?

Moreover, the city’s solution, adding a gift shop, is a way of getting out of the book business, it’s not a creative 21st-century e-commerce business model for staying in it. It’s like a pharmacist — also online and Wal-Mart challenged — adding groceries to the drug store merchandise.

In the greater Iowa City-Coralville area, every retail outlet must respond to the opportunities as well as the challenges offered by change.

Does the council intend to give our tax money to all of them? If not, why Prairie Lights?

Want to know which stores are suffering the greatest e-commerce impact? The Big Box stores, like Best Buy, Sears and Wal-Mart. Shoppers come to look, then order online from elsewhere. The companies are closing stores; their common stocks have declined.

Want to save those jobs, council?

Maybe local taxpayers should buy Wal-Mart a “museum quality gift shop.”
Nicholas Johnson, another satisfied Prairie Lights customer, teaches at the University of Iowa College of Law and maintains

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Wednesday, June 06, 2012

Big Boxes, Little Bookstores and Taxpayers

June 6, 2012, 3:15 p.m.

This blog entry became the source research and links for an op ed column ("Maybe Taxpayers Should Buy Wal-Mart a Gift Shop") published by the Iowa City Press-Citizen, June 11, 2012, and embedded in "E-Commerce Challenges Businesses, Governments, Taxpayers," June 11, 2012.

We'll Leave the Prairie Lights on For You

Internal Links:
First, the basics: Capitalism, Socialism and Fascism.
Next, Today's Corporatism Stories.
A TIF Gone Bad: Last Resort.
Bookies for Bookstores.
City Council's Opposition to Citizen Participation.
The Ever-Changing Traditional and Electronic Markets.
Where Will It Stop?

There's so much transfer of taxpayers' money going to for-profit businesses in this morning's [June 6] news that I'd say I'm speechless -- but for the fact those who know me wouldn't believe it. And they'd be right, as you're about to see.

First, the basics: Capitalism, Socialism and Fascism.

(1) Capitalism. An economic, for-profit venture or institution owned by one individual, or a group of shareholders, is an illustration of capitalism. Such money as it may need to get started comes from the owner, investors, bank loans, venture capitalists, family members and friends -- not taxpayers. If the business plan works as intended, those with a stake can become rich, and sometimes very rich. If it doesn't they can lose their investment, and sometimes a very large investment.

(2) Socialism. Facilities and programs traditionally created and operated by government can be characterized as "socialist." Examples include police and fire protection, public schools, libraries, parks, roads and bridges. In Iowa City it also includes the provision of drinking water, collection of trash, and maintenance of the smouldering landfill.

(3) Fascism, or corporatism. When Italy's Benito Mussolini did it during World War II, the intertwining of for-profit enterprises with government was called fascism. Today it is more commonly referred to as corporatism. It can take the form of government grants, low-interest loans, subsidies, earmarks, tax breaks -- including, locally, the grant of TIFs by the City Councils of Iowa City and Coralville.

Corporatism is what we have today, without any of us ever having voted for it, whether the government is in Washington, Des Moines, or Iowa City.

As an aside, given these definitions a healthcare delivery system funded by insurance premiums paid to for-profit insurance companies, and largely administered by those companies, delivering medical services with well-compensated private doctors -- a system pilloried by opponents as "Obama-care" -- is scarcely the socialism opponents allege it to be. You may or may not think it a good plan, but it isn't "socialism." Depending on the details, the preference of the rest of the industrialized world, "universal, single-payer, healthcare," often could be fairly characterized as a socialist system.

Next, today's corporatism stories.

There are two disturbing aspects to them.

(1) They embody all the risks (for taxpayers) and unfairness (for the recipients' unfunded competitors) of corporatism. Officials use the money of non-consenting taxpayers to enrich the profits of for-profit owners. ("You can keep all the profits; my taxpayers will cover your losses.")

(2) We are now beginning to witness a new phenomenon: public officials' overt, candid antagonism toward some efforts to democratize this process.

A TIF Gone Bad: Last Resort.

An all-too-common story of another TIF gone bad is spread across the front page of this morning's Gazette. Orlan Love, "Last Resort: Sheriff’s sale closes book on failed Clayton County resort; Project near McGregor ending in financial loss for some in area," The Gazette, June 6, 2012, p. A1:
A June 19 sheriff’s sale will likely end the costly and contentious River Buff Resorts economic development saga.

The $138 million planned resort complex . . . was to have been an upscale tourist attraction consisting of a hotel, water park, golf course and condominium and single family housing. . . .

The prospect of taxpayer-funded incentives — initially through a state Vision Iowa grant and later through a county tax increment financing district — encouraged developers to undertake the project.

After Vision Iowa announced its intention to issue a $3.5 million grant to the project, [Tim] Mason and his colleagues — local farmers Harlan Dettman, Greg Koether and Shawn Kleinow — researched the backgrounds of the developers, Conrad Seymour, then of La Crosse, Wis., and James Daughtry, then of La Quinta, Calif., . . .. Their research uncovered widespread dissatisfaction with their refurbishing of a downtown building in La Crosse and their development of a golfcourse/residential project in Necedah, Wis. . . .

The developers then persuaded the Clayton County supervisors to establish a tax increment financing district that was to have provided the source of payments for a $20 million tax-exempt urban renewal revenue bond to be issued to Daughtry. . . .

Kevin Lambert, who runs an appraisal business in Portage, Wis., said he wrote off “a five-figure loss” several years ago for unpaid work he did on the [Necedah] project.

“Everyone was gung ho for water parks” at the time. “They believed people would come if you built it, but that was not necessarily so,” said Lambert, who analyzed a feasibility study commissioned by the developers. . . .

Necedah Village Administrator Roger Herried said the tax value of the projects in the TIF district — a golf course, assisted living units and residential lots — is about a third of the $12 million needed to cash flow.

Herried said the underperforming TIF district has strained village finances, forcing it to refinance its debt under a state law passed specifically to aid communities like Necedah.
Clayton County, Necedah, and their taxpayers were not the only ones to bear the losses. In addition to the county and community, losses from this venture were sustained by the State of Iowa ("Vision Iowa"), the Iowa Department of Natural Resources, banks, contractors, suppliers, consultants, and others.

Thus, the transfer of taxpayers' money to these "developers" is a classic case study of a number of the categories of reasons why TIFs are not a good idea: the lack of ability and incentive of public officials to evaluate for-profit ventures (since none of their personal money is involved), the inability of anyone to predict with accuracy either the genuine need for the money or the prospects for a project's success, the fact that they so often simply don't work, the cascading losses that can fall on others than just the taxpayers of the granting agency, and the unfairness for the recipient's capitalist competitors deprived of public funding. For more, see "Sampling of Prior TIF Op Ed Columns and Blog Entries" and especially the listing of those categories in "The True Price of TIFs," October 1, 2012.

Bookies for Bookstores.

Meanwhile, "we got trouble, right here in River City, with a capital T and that stands for taxes" (with apologies to Meredith Wilson's "Music Man").

The Iowa City City Council -- or at least three members, leapfrogging over their colleagues -- have ruled the City (or more precisely and worse, its City Manager) can take your money and mine and go into the local, independent bookstore business -- gambling like bookies for bookstores with other peoples' money. Although it's not even a bookstore venture really. It's more like a cafe and a gift shop. Mitchell Schmidt, "City recommends $27,500 in funds to Prairie Lights; Aid for renovations also mentions possible loan for the bookstore," Iowa City Press-Citizen, June 4, 2012, p. A3 ("City officials recommended offering the bookstore $27,500 from the fund with the option of a low-interest 1 percent loan of up to $15,000 . . .. The request for funds [includes] . . . an expansion and addition to menu items including a small catering component at the store’s The Times Club cafe and modifying the building’s display areas to include gifts and toys similar to museum quality."). [Photo credit: Christina Janiczek.]

Lee Hermiston, "City to give Prairie Lights $27,500 development grant; Portion of money will let bookstore create eBook kiosk," Iowa City Press-Citizen, June 6, 2012, p. A3:
Iowa City Council members Matt Hayek, Michelle Payne and Susan Mims unanimously approved a $27,500 grant to Prairie Lights at a meeting of the Economic Development Committee on Tuesday morning.

However, rather than taking the recommendation to the full council, the committee took advantage of a recent rule change allowing City Manager Tom Markus to exercise his discretionary authority and bypass the council. . . .

The three councilors said they were in favor of approving the grant, expressing an interest in educating the public about the intricacies of eCommerce and how local businesses can be involved.

“I’m comfortable with you using your discretion,” Mims told Markus during the meeting. “It will speed things up a little bit.”
There are at least three reasons why those three felt they probably could keep this under the radar.

(1) The lucky beneficiary of this largesse is Iowa City's beloved landmark, Prairie Lights. (The bookstore is beloved by no one more than by me. But this blog entry is not about the contribution of this institution to Iowa City and its university. It's about the propriety, and process, of handing over taxpayers' money to what is, after all, a for-profit business.)

(2) Iowa City has a pretension to progressivism, volunteerism, citizens community involvement, culture and intellectualism (as home to one of the nation's top research universities and its designation as a "City of Literature"). However, as we discovered yesterday [election day, June 5] not everyone is registered to vote, and among those who are 90 percent choose not to bother. So it's unlikely these three City Council members will ever have to pay a political price for their generosity. ("Turnout in Tuesday’s primary was slightly less than average in Johnson County. As of press time Tuesday, 9.5 percent of voters had cast their ballots, a total of 7,635 votes." Tara Bannow, "Weipert defeats Slockett; Slockett concedes after serving as county auditor for 35 years," Iowa City Press-Citizen, June 6, 2012, p. A1.)

(3) What with Queen Elizabeth's "Jubilee" in London, high school sports, and the local elections in Iowa City, there's plenty to divert the voters' attention, even if there was anyone who both cared and would have otherwise been paying attention.

So the three Council members may very well be right in their belief that their gift will be appreciated by Prairie Lights' owner, but unknown to those whose money it was.

City Council's Opposition to Citizen Participation.

Why did I say, above, that "We are now beginning to witness a new phenomenon: public officials' overt, candid antagonism toward some efforts to democratize this process"?

For this we must reflect back on the last City Council TIF brouhaha. See "TIF Towers," April 9, 2012.

Now there's a new development in that giveaway. Local citizens want to be involved in this process, and are circulating a petition to make that possible. Mitchell Schmidt, "Petition asks for public vote on TIF funds; Group spurred by city giving Moen $2.5M in TIF money for new tower," Iowa City Press-Citizen, June 2, 2012, p. A1.

So how has the City Council responded to this request from its constituents to participate in the decisions regarding the distribution of their money to local for-profit businesses? With an utter, total, rebuff -- indeed, one that will end up costing the city's taxpayers an additional $300,000! Read on.
The cost of the deal between the city and Moen is estimated to be closer to $3.7 million when interest is added. The city plans to sell what are known as general obligation bonds to cover the amount.

General obligation bonds are subject to a reverse referendum, which is the goal of the petition. Kevin O’Malley, Iowa City’s finance director, said Monday he has been instructed to look into financing the deal instead with TIF revenue bonds.

A petition is powerless against those bonds. But they have higher interest rates than general obligation bonds, and O’Malley said an initial estimate has it as being $300,000 more expensive. . . .

[First assistant city attorney Sarah] Holecek said that if the petition is successful, the council would have two choices: call an election on the matter or issue the other type of bonds. She said voiding the agreement was not an option because of the city was already contractual bound to the project.

Council member Susan Mims said her preference would be for changing the financing if the petition is successful.
Gregg Hennigan, "Petition Seeks Vote on $2.5 Million Deal for Downtown Iowa City Building," The Gazette, June 5, 2012, p. A2. And see, Mitchell Schmidt, "City may have few options for funding Moen tower; Uncertain whether contract obligates city to fund project in event of possible election," Iowa City Press-Citizen, June 8, 2012, p. A1.

In other words, the Council will tolerate citizen participation only so long as it is ineffective. We can circulate petitions only if we don't get enough signatures. However, if there's a risk citizens might be able to accomplish something the Council opposes, it will create an end-around to nullify citizen participation.

It's one thing to shut out direct democracy, such as petitioning for a right to vote. It may be better than a poke in the eye with a sharp stick, but not by much. But in the case of the gift to Prairie Lights the three Santas don't even like representative democracy -- they don't even want their fellow members of the City Council to be able to participate.

"The Ever-Changing Traditional and Electronic Markets."

Although the Prairie Lights proposal appears to involve a rather traditional cafe and gift shop, "Wendy Ford, economic development coordinator, said the request stems from Prairie Lights officials’ attempt to adapt to the ever-changing traditional and electronic book market. 'The book market is changing,' Ford said. . . ." Mitchell Schmidt, "City recommends $27,500 in funds to Prairie Lights; Aid for renovations also mentions possible loan for the bookstore," Iowa City Press-Citizen, June 4, 2012, p. A3.

This is apparently a reference to "a special sales counter to devote a staff member to assist customers in e-book sales." Ibid.

There are a number of things wrong with this.

(1) For starters, from the looks of Prairie Lights' Web site, it would appear the store is already in the e-books business. Prairie Lights Books. Thus, the grant is not start-up money for a new electronic venture. It is simply a gift. Especially is this so given the owner's acknowledgement that "there’s no overhead” for this part of the business. Lee Hermiston, "City to give Prairie Lights $27,500 development grant; Portion of money will let bookstore create eBook kiosk," Iowa City Press-Citizen, June 6, 2012, p. A3.

(2) These are the kinds of expenses, or investments, that most business owners would assume to be their responsibility, rather than something to be paid for by local taxpayers. They would assume the business judgments behind them are theirs to make as well -- not the judgments of City officials.

(3) Thirty years ago, when sent by our State Department, and others, to foreign countries to provide advice on adapting electronics in general, and media in particular, to the coming 21st Century, I came upon an insight. The respect accorded one's ideas and opinions is in direct relation to the square of the distance one is from home. Thus, I was well regarded in Kazakhstan -- exactly half way around the Planet from Iowa City. And yet when I offered to provide comparable counsel for free to the local Chamber of Commerce members on how best to prepare for their coming online competition there was no interest whatsoever.

So, from that perspective, I'm pleased to see both City Council members and Prairie Lights owners addressing the implications for local business of cyberspace commerce.

(4) One of the greatest challenges facing any business person is watching out for the competitive innovation that will put them out of business -- and then preparing and responding to it before it arrives. Horse-drawn carriages had to respond to the "horse-less carriages," Swiss watch makers to digital watches, slide rule manufacturers to pocket calculators, mainframe computers to desktops, cell phones to smart phones -- the examples are endless.

Bookstores are now in that position. How quickly, creatively and effectively they respond is the measure of how and whether they will survive as anything similar to 20th Century bookstores. That's a part of what it means to be "in business." That's a part of the risk involved in any business. In a capitalist economy, these risks fall upon the owners of for-profit businesses -- just as the profits, and sometimes very large profits, are theirs to enjoy. In the corporatist economy favored by the City Council these risks becomes something for taxpayers to bear, while the profits remain with the owners.

(5) Authors, literary agents, publishers, distributors, and bookstores -- especially independent local bookstores -- have been hard hit by the arrival of online sales of both conventional (hardback and paperback) and digital "books," not to mention the ease of no-cost, online, self-publishing (plus distribution and sales) of conventional books.

(6) Wal-Mart, and other alternatives to traditional "bookstores," have dealt bookstores another blow. ("The growing clout of Wal-Mart and the other big discount chains -- they now often account for more than 50 percent of the sales of a best-selling album, more than 40 percent for a best-selling book, and more than 60 percent for a best-selling DVD -- has bent American popular culture toward the tastes of their relatively traditionalist customers." David D. Kirkpatrick, "Shaping Cultural Tastes at Big Retail Chains," New York Times, May 18, 2003.)

(7) Today much of the knowledge and entertainment the world offers is available, often for free and near-instantaneously, on one's laptop, netbook, iPad, smart phone, or other electronic device. (That's how that quote, and citation, immediately above were obtained.) A researcher may still end up in a library (school, public, or one's own) or bookstore before the research is done, but it is no longer always essential that they do so, let alone that they start there.

(8) There's less discretionary time available for reading, and reading must now compete for what there is not only with over-the-air television stations, cable and satellite channels, but with video game and Facebook time, the 50,000 radio stations available on smart phones, the world's newspapers, and other Web surfing.

(9) Clearly, bookstores have a challenge in their search for a business plan that works in the digital age. But adding cafes and gift shops is more of an alternative to the bookstore business than a business plan for staying in the 21st Century version of selling what books used to be and are today. It's like pharmacists -- a profession also challenged by online sales and Wal-Mart pharmacies -- deciding to start selling groceries as well as more conventional drugstore products. It may help their bottom line, but they're not filling any more prescriptions.

Want one example out of many of a little 21st Century creative thought for staying in the book business? Consider something that "can, potentially, give them [independent, local bookstores] a huge virtual inventory so they can have as many books as Amazon, all in a little bookstore . . . a new thing for the bookstore to do: not just sell books, but actually create books." Stacy A. Anderson, "The Antidote to e-Books," Associated Press, International Herald Tribune, June 12, 2012.

(10) Buying e-books online (from, say, Amazon) is not just a matter of a new format for books, and a cost saving. It's also the convenience of lying in bed at night and buying and installing on a Kindle, in less than a minute, a new novel you'd meant to read.

Since Prairie Lights is already selling e-books, does it really need that "special sales counter to devote a staff member to assist customers in e-book sales"? How many potential Prairie Lights' customers with the equipment, inclination, experience, and ability to read e-books need "assistance" in doing so? And for those who do, why are they going to travel all the way downtown, find a parking place, and walk to Prairie Lights, to get that advice? Isn't the advice just as likely to be available somewhere, somehow, on the Internet? And wasn't the convenience of doing all of this from home at least a part of the motivation for their interest in the e-books in the first place?

Where Will It Stop?

Every business, every retail outlet in the greater Iowa City-Coralville area, has been affected by, and must respond to, "the ever-changing traditional and electronic markets" -- the opportunities as well as the challenges they offer.

If the citizens of Iowa City aren't troubled by their City Council practicing corporatism (instead of insisting on capitalism and practicing socialism), which seems to be the case, and they want to address what local businesses can do about these changing markets, they're going to have their hands full.

It remains to be seen whether the Press-Citizen's new business plan (charging for online content) will turn out to be Gannett's salvation, or a mere handgun wound in the foot. One thing's sure, the paper's challenge can't be met with a tea room and gift shop. "Frequently Asked Questions, May 31, 2012.

Would the City Council be willing to make a gift to the Press-Citizen? Isn't a local newspaper at least as important to the community as an additional cafe and gift shop, even if they are in a bookstore?

Among the local businesses hardest hit by the changing markets are our so-called big box stores: Wal-Mart, Best Buy, Sears, and others. Miguel Bustillo, "Best Buy Forced to Rethink Big Box; As Shopper Habits Change in a Mobile World, Electronics Retailer Pares Stores, Tests Smaller Formats," Wall Street Journal, March 30, 2012, p. B1 ("Consumers armed with smartphones are changing the fundamental relationship between shopper and retailer. The new ease of mobile shopping and price comparison is accelerating the trend of 'showrooming'—where shoppers come in to stores to see an item but buy it elsewhere. . . . [E]lectronics are expensive enough to make price comparisons worthwhile, and because electronics are easy to order online."); "Walmart vs. Amazon: Can brick-and-mortar stores hang onto shoppers?; Not even the world's largest retailer is safe from Amazon, as more consumers turn to the web to buy everything from diapers to televisions," The Week, April 12, 2012.

If the City Council thinks it worthwhile to fund the creation of additional cafes and gift shops in support of the city's economy, isn't it at least ten times more important to provide taxpayer funding to such significant anchor stores in our metropolitan market area as Wal-Mart and Best Buy? Wouldn't losing them result in much greater economic and job loss than the lack of an additional coffee shop?

How about it City Council? Can I count on you to save my Big Boxes as well as my Little Bookstores -- or are you truly just picking favorites?

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