Monday, August 25, 2014

What does the district’s lawyer say about regulating public comment?

(Updated below.)

At the last school board meeting, some of the board members mentioned that the district had gotten a legal opinion from its attorney about the board’s proposed policy on public comment at board meetings. The policy—much toned down from what had been proposed earlier—is scheduled to come up for a vote at this week’s board meeting. I think people ought to know what the board’s attorney says about what the board can and can’t do in regulating public comment, so I asked the district for a copy of the opinion.

At the meeting last week, one board member said that the attorney’s opinion had not been included in the board packet because it was protected attorney work product. In fact, though, the relevant section of the Iowa 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.” I have no reason to think the attorney’s opinion was related to any “litigation or claim made by or against a public body,” or that any such litigation or claim has been made by anyone at all, so I disagree that the opinion is confidential.

Moreover, it would be pretty anomalous if the attorney’s opinions on pending policies were confidential. Opinions by the board’s counsel should be treated no differently than opinions by the state Attorney General on state law issues, which are published as a matter of course. It makes sense that the public, and not just the board members, should hear what the board’s attorney says about the legality of a proposed policy, so they can comment in an informed way on the proposal and evaluate whether the board members are making a good decision.

I made the request a week and a half ago, and still haven’t received any reply. I know it’s a busy time of year, but it’s not a burdensome request, and it certainly makes sense that the public should see the opinion before the board votes on the policy. Stay tuned.

UPDATE, 8/25/14: The district has now responded to my request by saying that it will not provide the document because “the requested document is not subject to release as it is a privileged communication between the Board and District legal counsel.” I’m following up with a question about how the document is “related to litigation or claim made by or against a public body.” Again, stay tuned.


Mary Murphy said...

Chris, Thanks for writing this. I completely agree with you--the opinion should be released.

Also, I don't want to see the Board pick and choose who is allowed to speak under its public comment policy/guidelines since this could be construed as viewpoint discrimination and would present constitutionality problems.

Anonymous said...

OMG - Why does everything in this district have to be difficult?

Yes, there is a chance the policy can be abused - IF it is, THEN we work on it. Until then, it addresses the problem we are having NOW.

Julie VanDyke said...

It is not a policy, they are Guidelines...the board president, vice president, and Kirshling don't know the difference even after it was explained to them quite clearly by other board members who actually understand their boards Policies, Open Meeting Law, and Open Record Law. It was abused in the very meeting Chris wrote this blog about 2 weeks ago, before it was even was, nearly, Iowa Open Meeting law. The problem we are having now, amongst others, is that we have at least three board members that don't even know the board policies that rule their actions, Iowa Open Meeting Law, and Iowa Open Records Law...or the U.S. Constitution. Try reading them some time very carefully, they're fascinating...particularly when compared to multiple board member's and district administration decisions and actions. They are breaking/have broken laws that govern how they may meet, when they may meet, what must happen before they meet, what they are allowed to discuss when they meet, and what open records they are required to provide, i.e., the lawsuit Ed Stone won after Murley et. al. witheld document(s)/information illegally...and I'll bet this policy (since Murley lied about who wrote it on camera even) involved walking quorums by email and lord knows what else...additionally, Chris has FOIA'd a document explicitly involved in the policy and is being denied access to that document under terms which do not appear to even be relevant to the district's claim that the document is privileged. Add to that, that the board violated its own policies that the guidelines specifically include language dependent on...WTF? And after all that you think the policy hasn't been violated yet? It's not even a policy, it's a guideline. Board Policy on Community Comment/Public Comment, which both Chris Lynch and Sally Hoelsher absolutely violated, takes precedence over "Guidelines"...yes, I guess if I couldn't see all that and was going to pretend the only people responsible for following rules are the ones that Murley, you and/or the board disagree with I'd want to do it anonymously too...but, tone, denial of known facts, tunnel vision, and wording sound like Julie Eiesely to me...which, would be even more ironic if true since she can be seen and heard shouting at another parent from her seat at a board meeting...funny, isn't that "Out of Order", oh, but no, that's only applied to me isn't it. Hypocrisy, it's not just for non-City High former and future PTO presidents breakfast any more.

Chris said...

Anonymous -- "Why does everything in this district have to be difficult?" -- My thoughts exactly. If there's no statutory basis for withholding the document, why don't they just disclose it?

I would agree that the policy on its face (to the extent that it's even understandable) is not necessarily problematic, though I'll never understand how it was worth the time that was put into it. I don't see how it addresses any problem, though, until it gets applied. And I agree with Mary that it will be all but impossible for the board to apply it evenhandedly in a way that doesn't raise First Amendment concerns.

Julie VanDyke said...

The irony makes me you have ANY idea how many people (and yes, I can name many of them by names and the meetings they took place during), fine upstanding Iowa City, Coralville, and North Liberty citizens shouting at the recognized speaker at the mic...gosh, how come the guidelines weren't of any importance then? Oh, well, because the guidelines are only important to intimidate and eradicate particular individuals. People should not only spend more time reading the Board Policies, Iowa Open Meeting Law, Iowa Open Records Law, and the U.S. Constitution, they should also spend a lot more time re-reading Dr. Seuss.

Julie VanDyke said...

Chris, per your statement regarding what Mary, gosh a decent lawyer that likely follows her oath and the law, as opposed to the seated one on the board who lied to a judge, manufactured evidence to fight having to take responsibility for his lie(s), and lost his Iowa Law License for 6 months for it. What Mary said, what you have said, are pretty much bout exactly what Kristen Frey said to them and other earlier incarnations of the board on multiple occasions, and hell, Iowa Ed law was her forte.

Hubris abounds, I don't know if I identify more with mythical Cassandra or Nemesis at this point...but, wait, bwahahahahahahaha
"The word Nemesis originally meant the distributor of fortune, neither good nor bad, simply in due proportion to each according to what was deserved. Later, nemesis came to suggest the resentment caused by any disturbance of this right proportion, the sense of justice that could not allow it to pass unpunished.

O. Gruppe (1906) and others connect the name with "to feel just resentment". From the fourth century onward, Nemesis, as the just balancer of Fortune's chance, could be associated with Tyche.

In the Greek tragedies Nemesis appears chiefly as the avenger of crime and the punisher of hubris, and as such is akin to Atë and the Erinyes. She was sometimes called "Adrasteia", probably meaning "one from whom there is no escape"; her epithet Erinys ("implacable") is specially applied to Demeter and the Phrygian mother goddess, Cybele."

bwahhahahahahah, "Although a respected goddess, Nemesis had brought much sorrow to mortals such as Echo and Narcissus. Narcissus was a very beautiful and arrogant hunter from the territory of Thespiae and Boeotia, who disdained the ones who loved him. Nemesis lured him to a pool where he saw his own reflection in the water and fell in love with it, not realizing it was only an image. He was unable to leave the beauty of his reflection and he eventually died."

Um, yeah, think we're passed the Cassandra phase after getting tired of predicting the future but payed no mind, and having been portrayed as crazy regardless of the generally on point prediction accuracy and I'm pretty sure most of us can guess who the district Narcissus is....oh, my, did I say that?

Anonymous said...

I think we can all agree that our community has not been served well by this board. I think we deserve better and hope folks will get out and vote next year to change things.

julie vandyke said...


Anonymous said...

Our school board is turning into the WWE, you have the convict, the board member with pending criminal charges and the sleazy lawyer.