Monday, September 22, 2014

I’m probably wrong

A few weeks ago, I asked the school district for a copy of the legal opinion it received about its proposed (now enacted) policy regulating public comment at school board meetings. I thought I had a right to see the policy under the Iowa Open Records law. I now think that I’m probably (though not certainly) wrong about that.

The Open Records law protects as confidential only those “Records which represent or constitute the work product of an attorney, which are related to litigation or claim made by or against a public body.” Since everyone seems to agree that the legal opinion about the public comment policy was not “related to litigation or claim made by or against” the school district, I argued that the opinion was not confidential under the act. Just looking at the statute itself, I think that argument makes a lot of sense. But it turns out that there is case law saying that the act was not intended to “affect other specific statutory privileges recognized by the legislature, such as the attorney-client privilege.” It’s still something of an open question, because that case did not conclusively resolve the issue, and because it’s not clear that the district’s assertion of the attorney-client privilege has any statutory basis. But it lowers the odds that I’d win if I appealed the issue and increases the amount of work it would be to appeal. Add in the fact that I have only one month left to appeal—and that it’s one of the busiest times of the semester—and that’s enough to make me throw in the towel.

None of that has any bearing, though, on whether the district should have withheld that legal opinion from the public. The client in an attorney-client relationship is always free to waive the privilege. The district’s position is apparently that it will disclose only the bare minimum of what it is legally required to disclose, and that it will keep secret the maximum that it is allowed to keep secret. I don’t understand that approach. My guess is that there is nothing earthshaking in the attorney’s opinion, and that it probably confirms what many other lawyers (including me) have been saying about the First Amendment restrictions on what the school board can do. Why is the district so determined not to let the public hear that advice?
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11 comments:

Julie VanDyke said...

"It’s still something of an open question, because that case did not conclusively resolve the issue, and because it’s not clear that the district’s assertion of the attorney-client privilege has any statutory basis."

-An open question yes, “wrong”, no, I don't think so. There is a viable argument to be made that their guidelines/policy, particularly due to the manner and justification under which it was developed and targeted at me personally, could constitute illegal "Prior Restraint" violation of my First Amendment rights, e.g.:

Julie VanDyke said...

1) What Jeff McGinness' said, while looking me right in the eye from his mic at the board table, in a raised holier-than-thou voice as he (yes, the same ICCSD Board Director who lied in court to a judge about his own actions, for which he then was found to have intentionally manufactured evidence to support, resulting in a 6 month suspension of his IA Law License) attacked ME personally, by name, as a main reason the guidelines/policy were allegedly necessary. Let me say that another way, AS HE, with HIS peer and IA Supreme Court assessed lying mouth, and just after I was "framed" for interrupting a speaker at the mic…though that hadn’t actually occurred in the first place, attacked my credibility. Look up our court records and tell me whose record (I have none, he has quite a few) has more credibility: https://www.iowacourts.state.ia.us
For more on Jeff McGinness’ credibility, watch what the IA Supreme Court thought of it in session or see the see the ruling on his appeal here: http://law.justia.com/cases/iowa/supreme-court/2014/131213.html
Multiple credible witnesses sitting baby steps from me at the time (in front, side, and behind) AND video of the meeting clearly indicated it was not me that "interrupted" the speaker. It was an apparently unintended, inadvertent noise made by another attendee many rows behind me on the other side of the board room who was stretching after being seated for some time.
Also, the Gazette reporter who stated it as fact that I had interrupted the speaker at the mic was sitting many, many, many rows behind me at the very back of the room at the time. That the speaker, who had his back to me and the audience at the time, wrongfully blamed me for it in the moment, contrary to fact, witnesses, and video, was apparently enough “truth” for reporter Gregg Hennigan. He did not have the good character, ethics, or personal responsibility as a reporter to ask me a single question about it before he intentionally reported the inaccuracy and caused it to be effectively established as fact, contrary to fact. Of relevance, Superintendent Murley had, in past private meetings and phone calls with me, strongly suggested (I felt pushed by him to do so) that I speak with Gregg Hennigan on reporting district related issues. Having already found Hennigan's excellent writing skills, and therefore his reporting, frighteningly compromised by what appeared to be his personal opinion prejudice, I did not do so.

Julie VanDyke said...

2) Steve Murley and Chace Ramey's bizarre decision to write the guidelines/policy behind closed doors (presented in near final draft by Marla Swesey in their first public appearance at a Policy & Engagement Committee meeting chaired by Brian Kirschling) instead of being developed, as board policy should be, by the board IN OPEN PUBLIC SESSION GOVERNED BY IOWA OPEN MEETING LAW. And yes, I do have audio of it as does the district.
In my opinion, this appears to have been an intentional circumvention of public process by board president, director(s), Superintendent Murley, and Chace Ramey, likely because the guidelines/policy would have been more difficult to control if developed by board or board committee, as they should have been, IN OPEN PUBLIC SESSION GOVERNED BY IOWA OPEN MEETING LAW. My personal opinion is certainly supported by Superintendent Murley’s memory lapse exposed as exactly what he and I both know it was, here: https://www.youtube.com/watch?feature=player_embedded&v=YbFUjMglgq0#t=5 Yes, it’s worth 1:19 of your personal time to see it the insane piece of interpretive dance of your government employees and district board member representatives. Also, overwhelmed by personal vindication by the truth, I did make the noise during this meeting though not with any public speaker at the mic. In fact, I clapped as the first board member to take responsibility for outing the truth called it on the rest of those seated at the board table (Superintendent Stephen F. Murley, current ICCSD Board President Christ Lynch, past board president and current vice president Marla Swesey, past board vice president and board president on the night of this meeting Sally Hoelscher, board director Jeff McGinness, board director and Chair of the Policy & Engagement committee the guidelines/policy was hidden behind Brian Kirschling, and honesty’s spokesperson on this issue past board vice president Ms. Tuyet Dorau). I then took personal responsibility for interrupting and replied, with hands up in the air as one who has a gun pointed at them, “I’ll take it! I’ll take it!”, because it was worth it to finally witness truth about the guidelines/policy after months of being threatened by and with what they had done and/or allowed to happen.

Julie VanDyke said...

Chris, I am grateful for everything you do, and have done, to out truth, but, in your transcription of the board table discussion that night you misheard something in Chace Ramey’s confession:

“Tuyet Dorau: So you’re the chair of the policy and engagement committee, and this came under your watch. So who wrote the policy?

Brian Kirschling: It showed up at the first policy and engagement meeting of this year.

Dorau: Who wrote the policy? Does anybody know?

[silence]

Dorau: That’s a problem.

Sally Hoelscher: I have not . . .

Superintendent Steve Murley: I know that initial conversations about the policy were with Joe [Holland, the board’s legal counsel], in the room—I don’t recall who wrote drafts of it, as it went through, but I know he looked at it prior to actually being drafted, and I think that some of the comments that I read [earlier in this meeting] were part of that dialogue that we had with him about that at that time, too.

Dorau: So it was written by administration?

Murley: No, I don’t believe we wrote it, I—to be honest with you, I don’t recall.

Chief Human Resources Officer Chace Ramey: Yes, it’s true. Tuyet, yes, yes, a conversation that came back to us, and Steve [Murley] and I worked on it, after some conversations with Joe, and it was put together then, and sent back as it was asked for.
Chris, Chace Ramey didn’t say after “some” conversations with Joe. He said, “after HIS discussions with Joe.”
Speaking moments after Steve Murley’s back to back contradictory statements then alleged total memory lapse, CHACE RAMEY CONFIRMS THAT THE GUIDELINES/POLICY DRAFT, in what appeared ready final form, INTRODUCED AT THE POLICY & ENGAGEMENT COMMITTEE MEETING BY just then PAST 2-TERM ICCSD SCHOOL BOARD PRESIDENT at the time, CURRENT BOARD VICE PRESIDENT, MARLA SWESEY, magically, since its first public appearance during the first P&E meeting of 2013-14…IN A COMMITTEE MEETING SUBJECT TO IA OPEN MEETING LAW AT WHICH THEY WERE ONLY SCHEDULED TO BE FIRST DISCUSSED TOWARDS DEVELOPMENT OF, not appear already written, CHAIRED BY JUST ELECTED DIRECTOR BRIAN KIRSCHLING…
…moments before Chace spoke, Steve said he “did not believe” he and/or his administration members had written it. Then Steve black and white changed the alleged truth of what he’d just said to “I—to be honest with you, I don’t recall”.
…If you listen carefully, as I did many times before writing this paragraph,
CHACE RAMEY SAYS, “STEVE AND I WORKED ON IT, AFTER “HIS” CONVERSATIONS WITH JOE…”.
One of the most crucial points Chace interrupted the board table discussion to make, moments after Murley’s contradictory truth statements, is found in the word “HIS”. What that means in context is that Ramey verifies Superintendent Steve Murley had the initial conversations about the guidelines/policy with the school district’s attorney, Joe Holland. PER STEVE’S STATEMENT,
“PRIOR TO ACTUALLY BEING DRAFTED”.
BOTH COMBINED SHOW:
THE CONVERSATIONS STEVE HAD WITH THE ATTORNEY OCCURRED BEFORE THE POLICY WAS WRITTEN AND WITHOUT THE SCHOOL BOARD PUBLICLY DIRECTING HIM TO DO (THEIR WORK, THE WORK OF CREATING POLICY) IN AN OPEN SESSION.

Anonymous said...

3a) Think back to the 1:19 where Marla Swesey sits there SILENT after Tuyet Dorau asks everyone at the table where the guidelines had come from, who wrote them. Marla introduced that very draft to the P&E Committee in what appeared to be final draft form. She was asked during that meeting where they had come from and her answer was quite curious in that, though she introduced them, her answer was that she thought they had come “from Steve”.

Julie VanDyke said...

3b) Think back to the 1:19 where Brian Kirschling, chair of the committee meeting at which the draft under discussion first magically appeared, chair of the committee that brought that draft with only the most minimal changes, TO THE BOARD FOR VOTE…Yes, then, think back to the 1:19 where Brian Kirschling sits there, initially SILENT, after Tuyet Dorau asks everyone at the table where the guidelines had come from, who wrote them. Brian Kirschling during the 1:19 who, when asked directly by Tuyet Dorau about how that guidelines/policy move into and through his committee only said, “IT JUST SHOWED UP AT THE FIRST POLICY & ENGAGEMENT COMMITTEE MEETING THIS YEAR.” Really, “IT JUST SHOWED UP.” He was there when Marla introduced the draft in discussion during the 1:19; he was there when she said she thought they had come “from Steve”. He later called me to discuss the guidelines/policy and the meeting where it was introduced and he laughed about Marla’s waffling, stumbling over where the draft had come and made light of the entire thing. I told him what angles and attacks “they” would try to accomplish with the policy. He laughed at those too. Now, guess how many of those were tried, particularly by Chris Lynch since he became board president? Guess how many I was wrong about as predicted in that recorded conversation with Brian? Pretty much none. What I WAS wrong about was placing my trust in what I thought was a decent man of good integrity, asking him to run for school board, and spending an enormous amount of my time, at his discretion, helping him get up to speed. Yes, the calls, emails, texts, visits (oh wait, he only visited my home that’s right), went both ways, not one direction. All I asked for from Brian in return was “due diligence”, fairness, that he be honest and do his best to be a good steward for all of the district’s children. How does his responsibility for the process by which these guidelines/policy represent his honestly, ethics, and due diligence? Apparently very, very, very clearly, and his further actions showed me it didn’t even bother him.

Julie VanDyke said...

BY MANY DEFINITION(S), REMAINING KNOWINGLY SILENT UNDER CIRCUMSTANCES LIKE THESE (PARTICULARLY AS A PUBLIC OFFICIAL IN ANSWER TO A DIRECT QUESTION BY A PEER IN AN OPEN PUBLIC MEETING) IS A LIE OF OMISSION, OR IS IT? 1 2,3
*1 “A lie of omission is an intentional failure to tell the truth in a situation requiring disclosure.”
http://definitions.uslegal.com/l/lie-by-omission/
*2 “A lie of omission is a lie in which someone deliberately withholds pertinent details about something in order to skew someone else's idea of the truth or engender a misconception. Although a lie of omission is not technically a lie because it contains no false information, it is still referred to as one colloquially because it is deliberately misleading.”
http://www.ask.com/question/what-is-a-lie-of-omission
*3 “Finally, since lying requires that a person utter (etc.) an expression, it is not possible for a person to lie by omission (Mahon 2003, 2006a). That is, it is not possible for a person to lie by omitting to utter (etc.) an expression. It is possible for a person to lie by remaining ‘silent’, if the ‘silence’ is a previously agreed upon signal with others that is equivalent to uttering an expression in a language (Fried 1978). However, such a lie would not be a lie of omission.”
http://plato.stanford.edu/entries/lying-definition/
*4. “One-Party Consent Iowa code holds that phone conversations may be recorded if the person who is recording is involved in the conversation. The recording of a call only requires the consent of one of the parties. The person recording the conversation needs to be "a sender or recipient of the communication" and should be "openly present and participating in the conversation." According to Iowa law, a person can record a conversation if they are involved in the conversation without notifying or getting permission from the other party. Many companies choose to notify to be sure the other party agrees although it is not required by law.”
http://www.ehow.com/list_6857090_iowa-phone-recording-laws.html
*5. “727.8Electronic and mechanical eavesdropping. Any person, having no right or authority to do so, who taps into or connects a listening or recording device to any telephone or other communication wire, or who by any electronic or mechanical means listens to, records, or otherwise intercepts a conversation or communication of any kind, commits a serious misdemeanor; provided, that the sender or recipient of a message or one who is openly present and participating in or listening to a communication shall not be prohibited hereby from recording such message or communication; and further provided, that nothing herein shall restrict the use of any radio or television receiver to receive any communication transmitted by radio or wireless signal.”
Iowa Administrative Code 727

Julie VanDyke said...

Epilogue 1: TRUST
Brian and I spoke many, many, many times, in person and by phone over the last 10+ years he was my Optometrist, but, yes, mostly after I pushed him to run for Board at Julie Eiseley’s request. I then stopped speaking with him in person or by phone after the 1:19 minute meeting you see here. After this meeting, a former City High student that attended that school with Brian Kirschling, his wife, and Jeff McGinness, began threatening and abusively attacking me through a variety of means in a manner that, at the time, made me fear for my safety, my family’s safety, and for Brian and his family’s safety…because in one of the last comments their “friend” directed to me before I blocked him. In fact, that was the reason I clicked block, because he had been escalating trying to fight with me in a discussion he had not been part of until he burst in on the attack for no apparent logical reason. The reason I clicked block was because he typed Brian’s wife’s name. Just that, just her name, in a post in the midst of a conversation with people she would not possibly have even known after he had already shown himself to be increasingly angry for no justifiable reason I could think of. Yep, just her name and then he went after me anywhere online that he could like a stalker in a horror movie script.
Yep, I was worried about Brian’s family’s safety too, well, that is until I was shown that he and his wife were fb friends with the man that was attacking me. When I wrote the school district to notify them of the threat/threatening behavior, they did nothing to help at all.
So yes, before I reviewed City High graduation records, class lists, etc, before I received screen prints that showed more disturbing threats and who he was “friends” with, before I had enough time to protect myself by doing my homework, I was very worried about Brian’s family too. Their “friend” was so over the line in the comments (think about that for a second when you think about what the PC DOES tolerate) that the Press Citizen blocked him, first temporarily and then again a second time with an eye towards his very creepy and abusive return. The Gazette did nothing that humane that I was told of. They did not even respond to my emails asking for their help.
Brian did nothing to help at all, nor to call off “his” “friend”. So, no, after the guidelines, after his 3—11-2014 introduction behavior, after his response to my concern about the stalker that was trying to frighten me was that had included his wife’s name in something he posted for me to see and Brian’s response was about as insensitive, cruel, and aggressively threatening in my opinion (I didn’t yet know Brian and his wife were fb friends with my stalker, not till later, but he knew exactly who I was talking about by everything I can tell). So, no, I don’t talk to Brian, Jeff, Marla, Sally, or Chris Lynch any more. Would you?

Julie VanDyke said...

Jeff McGinness, the "man" who had the gall to attack my credibility...here is what the Iowa Supreme Court thought of his...it's more enlightening regarding his lack of ethics, good character, and morality than the decision reads as they appear to be mocking him throughout the entire court hearing of his appeal. Listen to this and then tell me WHY this "man" is still on the School Board let alone should ever be trusted by ANYONE ever again

mms://video2.state.ia.us/judicial/oral_arguments/01222014_Iowa_Supreme_Ct_Atty_Disciplinary_Bd_v_McGinness.wmv

Julie VanDyke said...

Section 1
Case Ed Stone had to file to get rightful access to open records, which Murley and the District did not provide per Iowa Courts Online:
06521 EQCV073268 EDWIN STONE ET AL VS IC COMM SCHOOL DIST ET AL MURLEY, STEPHEN DEFENDANT
Trial Court Case ID
Originating County
Created
Speedy Trial
Microfilm Ref
06521 EQCV073268 JOHNSON 04/25/2011
Citation Number
Disposition Status
Disposition Date
Reopened Date
02/27/2012

Julie VanDyke said...

Oh, my mistake, it was Brian Kirschling that was elected Vice President of the board last night...it's so hard to tell them apart sometimes. For more on Jeff McGinness’ credibility, watch what the IA Supreme Court thought of it in session or see the see the ruling on his appeal here: http://law.justia.com/cases/iowa/supreme-court/2014/131213.html

On Brian Kirschling's credibility, see this 1:19 minutes of board meeting: https://www.youtube.com/watch?feature=player_embedded&v=YbFUjMglgq0#t=5

Our new Iowa City Community School District Board Vice resident, Brian Kirschling, chair of the committee meeting at which the draft under discussion in the 1:19 was/is chair of the committee that brought that draft with minimal changes, TO THE BOARD FOR VOTE. In the 1:19 Brian Kirschling sits there, initially SILENT, after Tuyet Dorau asks everyone there where the guidelines came from, who wrote them. Brian Kirschling in the 1:19, when asked directly by Dorau how those guidelines/policy move in and through his committee only said, “IT JUST SHOWED UP AT THE FIRST POLICY & ENGAGEMENT COMMITTEE MEETING THIS YEAR.” Really, “IT JUST SHOWED UP.” He was there when Marla introduced the draft discussed in the 1:19; he was there when she said she thought they'd come “from Steve”. He'd called me not long before the 1:19 to discuss them and their intro to his committee. During that call he laughed about Marla’s waffling, stumbling over where the draft had come from. I told him what angles “they” would try to stretch the policy into. He laughed at those too. Guess how many of those were tried, particularly by our now 2nd term Board President Chris Lynch? Guess how many I was wrong about as predicted in that conversation with Brian? Pretty much none. What I WAS wrong about was placing my trust in what I thought was a decent man of integrity, asking him to run for school board, and spending an enormous amount of time, at his discretion, helping him get up to speed. Yes, the calls, emails, texts, visits (oh wait, he only visited my home that’s right), went both ways, not one direction. All I asked from him in return was “due diligence”, fairness, that he be a good steward for all of the district’s kids. How does his responsibility for the process by which the guidelines/policy were enacted represent his honestly, ethics, and due diligence? Apparently very, very, very clearly.

In that 1:19, moments after Steve Murley’s contradictory statements then alleged total memory lapse, CHACE RAMEY CONFIRMS FROM WHERE DRAFT INTRODUCED AT THE POLICY & ENGAGEMENT COMMITTEE MEETING BY then PAST 2-TERM ICCSD BOARD PRESIDENT MARLA SWESEY, magically appeared = their first public appearance was at Kirschling's first P&E meeting of 2013-14 in A COMMITTEE MEETING SUBJECT TO IA OPEN MEETING LAW AT WHICH THEY WERE SCHEDULED TO BE FIRST DISCUSSED TOWARDS DEVELOPMENT OF, not appear already written, CHAIRED BY JUST ELECTED DIRECTOR and now BOARD VP, BRIAN KIRSCHLING...unbelievable yet there it is right before our eyes on video.

Marla Swesey, who I witnessed verbally and, in my opinion and apparently the investigator on behalf of the bullying complaint filed against her, then physically attack another board director...I have been told that the complaint was then FOUNDED by the district's former Equity Director.

I may curse like a sailor on occasion, but I tell the truth. What is WRONG with these people? Why are they still seated board members, let alone elected ICCSD President and VP? Seriously! These are the people in the neighborhood? These are the seated ethical examples for our children? It defies any sense of reason. WHY would anyone want their children to look up to these people? Where is the line? Will they stop before it the next time they're asked to tell the truth? How will we even know unless they get caught in the a lie? How many lies will be too many?