Fawkes-Lee & Ryan

If you were to guess which state agency represented the best example of transparent government the Iowa Ethics and Campaign Disclosure Board (IECDB) would, or should, be toward the top of the list.  Unfortunately, that’s not the case.

Last month, the agency’s executive director and legal counsel, Charlie Smithson, resigned to become the new chief clerk of the Iowa House of Representatives.   In a copyrighted article by Jason Clayworth in the Des Moines Register, the IECDB moved quickly to have “a rather seamless transfer.”  But is seeking a seamless transfer the best reason for neglecting openness and best practices?  Other principles should be considered equally in the process of hiring an individual to a position overseeing the high ethical standards we have come to take for granted in Iowa.

According to the minutes of the IECDB Board, at “4:40 p.m. it was moved by Harper and seconded by Sullivan that in accordance with the provisions of Iowa Code section 21.5, the Board will move into executive session to discuss personnel matters. Any action taken in executive session will be disclosed upon return to open session. Motion carried unanimously in roll call vote.  The meeting returned to Open Session at 5:05 p.m.”  There are several problems with this motion, and the lack of ethical procedure is major.

First of all, Iowa Code Section 21.5 subsection 3 states that “[f]inal action by any governmental body on any matter shall be taken in an open session unless some other provision of the Code expressly permits such actions to be taken in closed session.”  Well, that’s not what happened, exactly.  As the minutes continue to disclose, the next item in the minutes is a heading entitled:  “ACTION FROM EXECUTIVE SESSION”  It may be the secretary’s rendition of what occurred, but there can be no action from an executive session.  Although the next order of business is a motion “by Sullivan, second by Walsh to authorize Chair and Vice Chair to offer the executive director/legal counsel position to Megan Tooker”, it can only be assumed that the action was taken during the executive session and the motion in open session was a formality to rubber stamp the “non-action” of the 25-minute executive session.

Second, why did the board go into closed session in the first place?  There was no legal authority for the board to retreat to a closed forum.  The best guess you can find is in Iowa Code Section 21.5, subsection 1, paragraph “i”, which states that a governmental body may go into a closed session “[t]o evaluate the professional competency of an individual whose appointment, hiring, performance or discharge is being considered when necessary to prevent needless and irreparable injury to that individual’s reputation and that individual requests a closed session.”  That brings up two more questions:  Did Megan Tooker request a closed session?  And, was it necessary to prevent needless and irreparable injury to her reputation?  If the latter is true, you have to ask if Ms. Tooker would be capable of being the best candidate.

As it is, a 34-year-old Megan Tooker has compiled a record of 3 speeding violations and a minor in possession of alcohol offense.  Granted, the latter offense occurred during her days at the University of Iowa, where most intelligent young people have brushed up against the law on this very same charge.  But let’s get real.  One speeding violation might be considered a mistake.  Three violations in an 8-year period is a disregard for the law. She was not a lawyer at the time of the first two, but she was upon conviction of the third.

Truly, the Board might have unearthed a plethora of extremely qualified candidates had it advertised for at least a week.  Recruitment of a general practitioner lawyer with an emphasis on family law doesn’t seem to me as the “best” candidate.  Perhaps she is.  I don’t know her.  But I have to weigh the fact that she was recommended by the board chair, a law professor who doesn’t seem to understand Iowa’s open meeting law.  What this board really needed at the time was an attorney to explain the legalese of the “closed meeting” law.  It should have sought legal advice from the attorney general, the Iowa Citizen’s Aide/Ombudsman, the Iowa Newspaper Association, the Iowa Freedom of Information Council (located on Drake’s campus where the Board Chair James Albert teaches) or other expert on Public Records/Open Meetings.

Further, the Board should have created an interim position.  Anyone with interest in acquiring the position on a full-time basis would have been thrilled to serve for a brief period, if appointed, until a successor was hired using a thorough background check (which is required for just about every position in state government), a fair and open recruitment process, and the opportunity for public praise and criticism.  As it is, the board should have a tough time of living with this decision.  It lacks the appearance of being an ethical one.

eth·ics

–plural noun

1. ( used with a singular or plural verb ) a system of moral principles: the ethics of a culture.

2. the rules of conduct recognized in respect to a particular class of human actions or a particular group, culture, etc.: medical ethics; Christian ethics.

3. moral principles, as of an individual: His ethics forbade betrayal of a confidence.

4. ( usually used with a singular verb ) that branch of philosophy dealing with values relating to human conduct, with respect to the rightness and wrongness of certain actions and to the goodness and badness of the motives and ends of such actions.

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