The Iowa Public Information Board
COMES NOW Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order.
On September 2, 2020, Amy Hoherz filed formal complaint 20FC:0090, alleging that the Iowa Board of Regents (Board) violated Iowa Code chapter 21.
Ms. Hoherz described the violation as follows:
In an open letter to the University of Iowa and Hawkeye Athletics Community, published on August 21, 2020 and signed by Athletic Director Gary Barta and University of Iowa President Bruce Harreld, it was stated that "In consultation with the Board of Regents, State of Iowa, we have made the decision...". Said decision was alluded to be made since August 11, 2020.
If these individuals met with the Board of Regents in July or August of 2020, and specifically between August 11 and August 21, 2020, it was not in open session and I am unable to find any public record.
In response to the complaint, legal counsel for the Board responded that (1) Ms. Hoherz’s complaint does not meet the requirements of the IPIB administrative rule 497-2.1(1); and (2) At no time did a majority of the Board meet outside a properly held open meeting. Counsel requested that the IPIB find the complaint to be legally insufficient and without merit.
In support of this response, counsel noted that IPIB Administrative Rule 497-2.1(1) requires a formal complaint contain all of the following: “an alleged violation of Iowa Code chapter 21 or 22, specific facts in support of the allegation, identification of the persons or governmental entity involved, and the specific relief sought.”
Counsel also noted that no information was provided by the complainant to support the allegation of a violation “because it is grounded in mere speculation.” Included with the response were sworn affidavits of Mark Braun, Executive Director of the Board; Michael Richards, President of the Board; Nancy Boettger, Board member; Sherry Bates, Board member; David Barker, Board member; Patricia Cownie, Board member; Milt Dakovich, Board member; Nancy Dunkel, Board member; Jim Lindenmayer, Board member; and Zack Lust, Board member. Each affidavit certified, under penalty of perjury, that there was no gathering of a majority of members of the Board for the purposes of deliberating or taking action upon the decision to eliminate certain sports at the University of Iowa.
Six of the affidavits (Barker, Cownie, Dakovich, Dunkel, Lindenmayor, and Lust) added that on or about August 14, 2020, each had received an individual call from the President of the University of Iowa informing each one of his decision to eliminate four varsity sports.
One Board member (Bates) included in her affidavit that she participated with two other Board members (Richards and Boettger) in a virtual call on August 3, 2020, with University of Iowa staff, who informed the three of them that staff was considering the possibility of eliminating some varsity sports. She also reported an individual telephone call from the President of the University.
Two Board members (Richards and Boettger), in addition to the previously mentioned certifications, also certified that they had participated in a conference call with University of Iowa staff on July 31, 2020, at which time they were informed that staff was considering the possibility of eliminating sports.
Mark Braun, Executive Director of the Board, stated in his affidavit that it is “the policy of the Board of Regents that control of athletics at each Regent university is delegated to the president of the university. Specifically, the decision to eliminate a varsity sport is delegated to the president of the university.”
Mr. Braun certified that he was called by the President of the University of Iowa “on or about August 14, 2020,” and informed that the President had decided to cut four varsity sports. Mr. Braun then advised the President to contact each Board member individually and relay that information, prior to any release of the decision to the general public.
Upon receipt of the Board's response to her complaint, Ms. Hoherz submitted additional comments to IPIB staff on September 30, 2020. In her comments, she indicated that she was unable to provide more details in her initial complaint because there was no way for her to know whether a meeting was held between the July 29, 2020, Board meeting and the issuance of the Open Letter on August 21, 2020. She argued that the actions of the Board’s executive director and the three board members in participating in a conference call on August 3, 2020, should be considered a violation of Iowa Code.
Legal counsel for the Board provided access to a video clip of the September 23, 2020, public meeting of the Board, during which time the athletic budgets of all three regents’ universities were presented and discussed in open session.
Iowa Code section 21.2(2) defines a meeting as: “a gathering in person or by electronic means, formal or informal, of a majority of the members of a governmental body where there is deliberation or action upon any matter within the scope of the governmental body’s policy-making duties. Meetings shall not include a gathering of members of a governmental body for purely ministerial or social purposes when there is no discussion of policy or no intent to avoid the purposes of this chapter.”
There is no evidence that a majority of the nine-member Board of Regents, a governmental body required to hold open meetings, met between the public meeting on July 29, 2020, and the issuance of the Open Letter on August 21, 2020. This complaint is therefore legally insufficient.
Iowa Code section 23.8 requires that a complaint be within the IPIB’s jurisdiction, appear legally sufficient, and could have merit before the IPIB accepts a complaint. This complaint does not meet those requirements.
IT IS SO ORDERED: Formal complaint 20FC:0090 is dismissed as legally insufficient pursuant to Iowa Code section 23.8(2) and Iowa Administrative Rule 497-2.1(2)(b).
Pursuant to Iowa Administrative Rule 497-2.1(3), the IPIB may “delegate acceptance or dismissal of a complaint to the executive director, subject to review by the board.” The IPIB will review this Order on October 15, 2020. Pursuant to IPIB rule 497-2.1(4), the parties will be notified in writing of its decision.
By the IPIB Executive Director
Margaret E. Johnson, J.D.
1. 497-2.1(1) Form. A complaint shall be written and signed by the person filing the complaint on forms provided by the board or shall be submitted electronically via the board’s Web site. The complaint shall allege a violation of Iowa Code chapter 21 or 22; provide specific facts in support of the allegation, including the identification of persons and government entity involved in the alleged violation; and provide the specific relief sought. A complaint involving an injunction under Iowa Code section 23.5(3) shall be filed and conducted in accordance with the provisions set out in 497—Chapter 10.
2. Board of Regents Policy section 4.11(A) states: In July 1991, the Board of Regents adopted the "one plus three" concept of intercollegiate athletics that asserts presidential control of athletics at all of the institutions, as well as academic integrity, financial integrity and accountability.
3. “Open Letter to the University of Iowa and Hawkeye Athletics Community”, issued by President Bruce Harreld and Director of Athletics Gary Barta, was released on August 21, 2020, and named the four programs that would be cut at the end of the 2020/21 athletic seasons.
4. She referenced Iowa Code sections “262.9.4 and 262.9.10” as requiring the Board to take responsibility for these decisions. This is not an allegation of a violation of Iowa Code chapter 21.
5. The portion of the meeting addressing the athletics budgets can be directly accessed at this link: https://www.youtube.com/watch?v=pd8oBZwycO4&t=7444s.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of October, 2020, to:
Amy Jo Hoherz
Aimee Claeys, legal counsel for the Iowa Board of Regents