Monday, February 05, 2007

UI Held Hostage Day 380 - Feb. 5

Feb. 5, 11:00 a.m.; 4:30 p.m.

This morning's papers bring more insight to the exclusion of undergraduates from the UI Presidential Search Committee II that would be truly hilarious if it were not so sad and serious (Daily Iowan), The Gazette's "pro and con" on the SILO 20% sales tax hike adds little to this blog's discussion yesterday (especially with its weak "pros") but is a useful summary anyway, and a bizarre editorial in the usually analytically sound editorial page of the Press-Citizen about gambling and intercollegiate athletics at Iowa. They're all linked below.

There is also a correction, or at least expansion and clarification, regarding "Search Committee II and Confidentiality," sub-headlined below.

There will be more commentary later in the day (maybe this evening). Meanwhile, you can read the originals and speculate as to how you (now) and I (later) will react to what you're reading.

Search Committee II and Confidentiality

It is true that Iowa Code Sec. 21.5 (1)(i) does require a finding of impending “irreparable injury to [an] individual’s reputation” to an justify a governmental body closing a meeting otherwise required to be an “open meeting.”

However, there are an additional number of provisions that must be considered.

Section 21.5(1)(a) authorizes a closed session “To review or discuss records which are required or authorized by state or federal law to be kept confidential . . ..”

In the case of state law, this requires a reference to the Iowa “public records” law in Chapter 22.

Section 22.1(3) defines “public records” as “all records . . . of or belonging to this state . . ..” Candidates' applications would presumably be "records of or belonging to this state."

Section 22.7 deals with “confidential records” and says “The following public records shall be kept confidential . . . (11) Personal information in confidential personnel records of public bodies . . ..”

Subsection (18) is the more problematical and needs to be set forth in full, for it provides that also "confidental" are:

“Communications not required by law, rule, procedure, or contract that are made to a government body or to any of its employees by identified persons outside of government, to the extent that the government body receiving those communications from such persons outside of government could reasonably believe that those persons would be discouraged from making them . . . if they were available for general public examination. . . . ‘[P]ersons outside of government’ does not include persons . . . who are communicating with respect to a consulting or contractual relationship . . . or who are communicating with a government body with whom an arrangement for compensation exists. a. The communication is a public record to the extent that the person . . . consents to its treatment as a public record. b. Information . . . is a public record [if] it can be disclosed without . . . indicating the identity of the person . . ..”

I would agree that these provisions add confusion to the issue. However, I do not believe that they must be interpreted to authorize Search Committee II to hold closed meetings to discuss, for starters, (1) the number of potential candidates under consideration, or (2) the names of those candidates. (The contrary argument, with regard to names, might be that, (a) to the extent the names have been extracted from “confidential” communications (if such they be), then (b) they are, by extension, as “confidential” as the documents from which they were obtained.)

At the outset, Section 21.5(1)(a) only applies if Search Committee II is going “To review or discuss records . . . kept confidential . . ..” Thus, if the Committee is discussing nothing more than the number of candidates before them, or the names of those candidates (especially if the names were obtained from sources other than candidate communications, but perhaps possibly even if not), Section 21.5(1)(a) is simply inapplicable (because the Committee’s discussion is not “to review or discuss records”). The number of “confidential records” the Committee may or may not have is irrelevant if they are not even discussed. (And to drag them into the discussion for purposes of closing an otherwise open meeting would seem to be an evasion of the law.)

What’s the effect of Section 22.7 (11) (“personnel records”)? As I read it, it’s inapplicable, insofar as an applicant for a job is not “personnel” until actually hired.

Section 22.7(18) is inapplicable if the communications are required by “law, rule, procedure or contract.”

The Committee’s Presidential Search Web site provides:

Apply or Submit Nominations

Letters of application, nominations, and inquiries may be sent to the search committee at this address:

University of Iowa Presidential Search Committee
David Johnsen, Chair
N308 DSB
The University of Iowa
Iowa City, IA 52242-1010

Applications should include a curriculum vitae and a letter of interest.”

Thus, this notice strikes me as something that results in such communications as the Committee may receive qualifying as, at least, “required by rule [or] procedure.” As such, Section 22.7(18) is simply inapplicable to these communications; thus, they are not “confidential,” and therefore they do not permit closed meeting discussions of them under the terms of Section 21.5(1)(a).

(The contrary argument might be that the phrase “required by law, rule [or] procedure” refers to a “communication” that must be filed whether the sender wishes to file it or not, such as a tax return. By this interpretation, a job application procedure is something in which an individual may or may not choose to participate. It is a procedure “required” only of those who choose to apply.)

We are then left with the Section 22.7(18) language that the communications are confidential “to the extent that the government body receiving those communications from such persons outside of government could reasonably believe that those persons would be discouraged from making them . . . if they were available for general public examination.”

This language sounds to me more like an effort to encourage whistle blowers and those citizens reporting public employee malfeasance than it does language designed to protect the identities of those applying for public jobs. (A contrary argument might be that the language, on its face, would cover job applicants if it is otherwise applicable to them.)

As always what publlc policy considerations would suggest should be the practice is another matter. Past UI search procedure has been to hold the full list of potential candidates confidential, but then reveal the names of the four to six "finalists" at the end of that process -- preferably with on-campus interviews. That is, at a minimum, an illustration of one pragmatic approach -- and perhaps the best one. But, again as always, what the law should be and what the law is are often two different things.
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[Note: If you're new to this blog, and interested in the whole UI President Search story, these blog entries begin with Nicholas Johnson, "UI President Search I," November 18, 2006. Wondering where the "UI Held Hostage" came from? Click here. (As of January 25 the count has run from January 21, 2006, rather than last November.) For any given entry, links to the prior 10 will be found in the left-most column. Going directly to will take you to the latest. Each contains links to the full text of virtually all known media stories and commentary, including mine, since the last blog entry. Together they represent what The Chronicle of Higher Education has called "one of the most comprehensive analyses of the controversy." The last time there was an entry containing the summary of prior entries' commentary (with the heading "This Blog's Focus on Regents' Presidential Search") is Nicholas Johnson, "UI President Search XIII -- Last Week," December 11, 2006. My early proposed solution to the conflict is provided in Nicholas Johnson, "UI President Search VII: The Answer," November 26, 2006. And the fullest collection of basic documents related to the search is contained in Nicholas Johnson, "UI President Search - Dec. 21-25," December 21, 2006 (and updated thereafter), at the bottom of that blog entry under "References". A Blog Index of entries on all subjects since June 2006 is also available. And note that if you know (or can guess at) a word to search on, the "Blogger" bar near the top of your browser has a blank, followed by "SEARCH THIS BLOG," that enables you to search all entries in this Blog since June 2006.]

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Media Stories and Commentary

Terry McCoy, "Undergrad on search panel unlikely," The Daily Iowan, February 5, 2007

"Ups and Downs; Here's the Balance Sheet on School Infrastructure Sales Taxes," The Gazette, February 5, 2007

Nothing wrong with UI/Lottery TV commercials," Iowa City Press-Citizen, February 5, 2007

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1 comment:

tdhcheri said...

Linda Maxon's comment as reported by Terry McCoy in the DI of February 5 is one the most amusing things I've read in the 21st Century. Imagine. A liberal arts dean consorting with undergraduates. Talk about earning your money.