E-FILED 2017 SEP 22 5:52 PM POLK - CLERK OF DISTRICT COURT

THE IOWA DISTRICT COURT FOR POLK COUNTY

GERHILD KRAPF, )
Plaintiff, ) No. CVCV052002
)
vs. )
)
BRUCE RASTETTER (individually), )
KATIE MUHOLLAND (individually), ) PLAINTIFFS MEMORANDUM
MILT DAKOVICH (individually), ) OF AUTHORITIES IN
LARRY MCKIBBEN (individually), ) RESISTANCE TO
MARY ANDRINGA (individually) ) DEFENDANTS SUMMARY
and BOARD OF REGENTS OF ) JUDGMENT MOTION
THE STATE OF IOWA, )
Defendants. )

COMES NOW Plaintiff Gerhild Krapf and in support of her resistance to the

Defendants motion for summary judgment, provides the Court with the following

memorandum of authorities:

BACKGROUND

For whatever reason, the president of the Board of Regents of the State of Iowa

(Board), Bruce Rastetter, really wanted Bruce Harreld to be the next president of the

University of Iowa. He encouraged Harreld to apply for the position twice on separate

telephone calls in March and April of 2015, four times in a face-to-face meeting with him in

Cedar Rapids in June of 2015, and again on July 30, 2015, during the ride from the airport.

(Rastetter Depo. at 9-10, 26-27)(MSJ App. at 87-88, 104-105). Because Harrelds

background was primarily in the business world with no experience related to academic

administration, his candidacy undoubtedly would be controversial.1 If the public caught

1Harrelds academic inexperience was heavily criticized in the tense and combative public
forum held as part of the presidential search. Bruce Harreld grilled during town hall, (KCRG-TV9
broadcast, Oct. 28, 2015) (available at https://www.youtube.com/watch?v=SYwJZX36uJ4) (last
accessed Sept. 22, 2017). See also Editorial, Regents hiring of UI president was flawed, Des Moines
Register (Oct. 3, 2015) (The regents skipped over several highly qualified candidates with sterling
academic credentials and education administration chops in favor of a former corporate executive
who has never held a full-time university faculty position and who concedes he will need on-the-job
 E-FILED 2017 SEP 22 5:52 PM POLK - CLERK OF DISTRICT COURT

wind of his potential candidacy, the ensuing resistance may have caused Harreld not to

apply. Alternatively, the public may have had time to mobilize resistance that would doom

his candidacy before it could garner any momentum. This may explain why Harreld

initially was reluctant to apply for the president position and wanted to visit with members

of the Board before throwing his hat into the ring. No candidate wants it to be broadcast

publicly that he or she had applied for the position, but was not ultimately selected. (Pls

Am. Petition at 25) (The Search Committee adopted a resolution declaring that it has

determined that otherwise qualified applicants . . . will be discouraged from making

application for the position if the applicants name and accompanying information is

available for general public examination). For Harreld, the meetings would give him a

chance to grease the wheels for his prospective candidacy. 2 If the meetings went well, he

would apply. If they did not go well, he would not apply. It was against this backdrop that

Rastetter decided it would be best for everyone if the defendants met with Harreld in

private.

Rastetters plan, however, ran headlong into Iowas Open Meetings Law. Because

there are nine members on the Board, anytime five or more of them get together to discuss

matters within their policymaking duties, they are meeting for purposes of Iowa Code

chapter 21. Thus, Rastetter faced a dilemma in fulfilling his desire to have Harreld meet a

training).

2 Rastetter characterizes the meetings were a way for Harreld to become more informed
about the expectations the Board had for the next president of the University of Iowa. (Rastetter
Depo. Ex. 5)(MSJ App. at 185). That explanation is at odds with the fact that Harreld e-mailed
Rastetter his resume with the instruction to feel free to forward the attached resume to those with
whom I will be meeting tomorrow. (Rastetter Depo. Ex. 4)(MSJ at 184). A reasonable factfinder
could conclude from Harrelds e-mail that these meetings to allow Harreld a test-run interview for
the president position before a majority of the Board. See
https://en.wikipedia.org/wiki/R%C3%A9sum%C3%A9 (last accessed Sept. 22, 2017) (Resumes can be
used for a variety of reasons, but most often they are used to secure new employment) (emphasis
added).

2
 E-FILED 2017 SEP 22 5:52 PM POLK - CLERK OF DISTRICT COURT

majority of the Board: meet with him in public and face the resulting outcry early in the

selection process, or meet with him in private in violation of the Open Meetings Law. He

apparently did not like either option, so he created a third one: musical chairs.3 His

scheme followed in three steps: (1) Rastetter picked up Harreld at the airport, drove him to

his companys private offices, and along the way recruited him to apply for the position; (2)

Rastetter then passed Harreld off to McKibben and Andringa to recruit him to apply for the

position; and (3) they, in turn, passed Harreld off to Dakovich and Mulholland to add the

finishing touch. In Rastetters eyes, his scheme would not be considered a gathering

under Iowa Code section 21.2(2) because at no time did all five defendants meet

simultaneously within the same four walls.

Thankfully, the Open Meetings Law cannot be so easily manipulated. To the

contrary, the very opening declaration of the Iowa Open Meetings Law makes clear that its

purpose is to assure, through a requirement of open meetings of governmental bodies, that

the basis and rationale of governmental decisions, as well as those decisions themselves,

are easily accessible to the people. Iowa Code 21.2 (emphasis added). To that end,

[a]mbiguity in the construction or application of [chapter 21] should be resolved in favor of

openness. Id. (emphasis added). That message is pretty blunt . . . If youre taking actions

that are designed to hide the basis and rationale of governmental decisions, and there is no

state exception in Chapter 21 for doing so, youre probably violating the law. See Brief of

Iowa Newspaper Association and Iowa Freedom of Information Council as Amici Curiae at

8, Hutchison v. Shull, 878 N.W.2d 221 (Iowa 2016) (No. 14-1649). Because the defendants

scheme failed to live up to requirements of chapter 21, their summary judgment must be

denied.

3 The term playing musical chairs is a metaphor for any activity in which people are
repeatedly and usually pointlessly shuffled among various locations. See
https://en.wikipedia.org/wiki/Musical_chairs (last accessed Sept. 22, 2017).

3
 E-FILED 2017 SEP 22 5:52 PM POLK - CLERK OF DISTRICT COURT

STANDARD OF REVIEW

A district court may only grant summary judgment if there is no genuine issue as to

any material fact and . . . the moving party is entitled to judgment as a matter of law.

Iowa R. Civ. P. 1981(3); City of Postville v. Upper Explorerland Regional Planning Commn,

834 N.W.2d 1, 6 (Iowa 2013). To determine whether the moving party met this burden, the

Court must examine the record in the light most favorable to the nonmoving party. Upper

Explorerland, 834 N.W.2d at 6. In doing so, the Court must afford the nonmoving party

every legitimate inference that can be reasonably deduced from the evidence. Id. The

Court should not grant summary judgment if reasonable minds can differ on how the issue

should be resolved, because a fact question is generated in such instances. Id.

ARGUMENT

I. DEFENDANTS VIOLATED THE OPEN MEETINGS ACT BY HOLDING A

SERIES OF GATHERINGS IN CLOSE PROXIMITY WITH ONE ANOTHER IN
WHICH THEY DELIBERATED ON A MATTER EXPRESSLY VESTED IN THE
BOARD OF REGENTS BY THE IOWA CODE

A. Applicable Legal Principles

This case requires us to interpret the definition of meeting contained in section

21.2(2) of the Code. It provides,

Meeting means 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.

Iowa Code 21.2(2). The definition of meeting is confined to the first sentence. Telegraph

Herald, Inc. v. City of Dubuque, 297 N.W.2d 529, 532 (Iowa 1980). It requires a gathering

of a majority of members of a governmental body. Id. It also requires deliberation upon a

matter within the scope of the bodys policy-making duties. Id. The second sentence merely

4
 E-FILED 2017 SEP 22 5:52 PM POLK - CLERK OF DISTRICT COURT

reaffirms the right of a majority of members to meet for a purely ministerial function, or in

a social setting, so long as there is no discussion of policy and no intent to avoid the

purposes of the act. Id. (emphasis added).

B. A genuine issue of material fact exists on the issue of whether the serial
meetings constituted a meeting for purposes of the Iowa Open Meetings Law

The first aspect to the definition of a meeting under section 21.2(2), is a gathering of

a majority of members of a governmental body. There is no dispute that a five members of

the nine-member Board met with Harreld on July 30, 2015.4 Nonetheless, Defendants

contend that serial meetings do not constitute a meeting for purposes of the open meetings

law. (Defs Br. in Support of MSJ at 9). If that were correct, then Plaintiff concedes they

would be entitled to judgment as a matter of law. Defendants, however, are incorrect in

their reading of the Telegraph Herald decision. The Court in Telegraph Herald

acknowledged that serial submajority gatherings can constitute a meeting to which

chapter 21 applies if the members deliberate in temporal proximity to each other.

Hutchison v. Shull, 878 N.W.2d 221, 232 (Iowa 2016) (In Telegraph Herald we recognized

the legislatures apparent intent that temporal proximity exist among members of the

governmental body in order for a meeting subject to the open meetings requirements to

take place). The reason the court found no violation in Telegraph Herald was because the

city council did not deliberate and there was no demonstration of temporal proximity

among the gatherings. Id. (explaining the holding in Telegraph Herald).

This case is several standard deviations away from the factual scenario in Telegraph

Herald. Here, a majority of the Board members met with Harreld back-to-back-to-back in a

series of meetings within the course of a single afternoon. See 1979 Iowa Op. Atty Gen.

4There is also no dispute that none of the meetings of were preceded by notice and
accompanied by minutes that were subsequently made available for public inspection. Iowa Code
21.3.

5
 E-FILED 2017 SEP 22 5:52 PM POLK - CLERK OF DISTRICT COURT

164 (expressing doubt that the Iowa Open Meetings Law could be avoided through any

bifurcation mechanism employed by a majority of the members to conduct the publics

business). Indeed, four of the Board members literally passed each other and exchanged

greetings between separate meetings. At a bare minimum, that creates a genuine issue of

material fact as to whether the serial meetings were held in such close temporal

proximity to one another as to constitute a meeting under chapter 21. If these facts are

not sufficient to survive summary judgment under the temporal proximity standard, then

no case ever will.5

C. A genuine issue of material fact exists on the issue of whether defendants

deliberated on a matter within the scope of the Boards policy-making duties

As their fallback position, Defendants assert that no violation of the Iowa Open

Meetings Law because no action or deliberation occurred at any of their meetings with

Harreld. (Defs Br. in Support of MSJ at 15). Deliberation generally involves discussion

and evaluative processes in arriving at a decision or policy. Hutchison, 878 N.W.2d at 232

n.1 (quoting Hettinga v. Dallas Cty. Bd. of Adjustment, 375 N.W.2d 293, 295 (Iowa Ct. App.

1985)). [A] gathering may be purely ministerial if members of a body assemble simply to

receive information without discussing policy or intending to avoid the purposes of the open

meetings law; however, ministerial activities may develop into deliberation if the

5 Several courts in other jurisdictions have reached the same conclusion that walking
quorums cannot be employed to defeat the requirements of open meetings laws. Del Papa v. Board
of Regents of the University and Community College System of Nevada, 114 Nev. 388, 392, 956 P.2d
770, 778 (1998) (quorum by using serial electronic communications violates open meeting law); State
ex. rel. Cincinnati Post v. Cincinnati, 668 N.E.2d 903 (Ohio 1996) (back-to-back meetings between
groups of council members to discuss new stadiums); Booth Newspapers, Inc. v. University of Mich.
Bd. of Regents, 444 Mich. 211, 507 N.W.2d 422 (Mich. 1993) (holding series of closed meetings,
telephone calls, and informal meetings by board of regents to narrow its choices for a new president
of the university) Roberts v. City of Palmdale, 5 Cal.4th 363, 376, 20 Cal.Rptr.2d 330, 853 P.2d 496
(1993) (concerted plan to engage in collective deliberation serially would violate the open meeting
requirement).

6
 E-FILED 2017 SEP 22 5:52 PM POLK - CLERK OF DISTRICT COURT

members of a governmental body engage in any discussion that focuses at all concretely on

matters over which they exercise judgment or discretion. Id. (citation omitted).

The Iowa Code places the election of the president of the University of Iowa squarely

within the purview of the Board. Iowa Code 262.9(2). To that end, the Board established

a search committee whose primary charge was to recruit candidates. (09/24/15

Statement; Dakovich Depo. at 7-9, Rastetter Depo. at 21-22, 41)(MSJ App. at 7-9, 99-100,

119). According to Rastetter, the meetings with Harreld on July 30, 2015, were part of the

recruiting process for the position of president of the University of Iowa. (Rastetter Depo.

Ex. 4)(MSJ App. at 184). Dakovich, McKibben, Andringa, and Mulholland talked with

Harreld about challenges facing the University of Iowa such as construction projects,

academic affairs, efficiencies, and his potential candidacy for the president position.

(Mulholland Depo. at 12; McKibben Depo. at 9; Andringa Depo. at 9)(MSJ App. at 169, 38,

138). Rastetetter encouraged Harreld to apply for the position on that day. (Rastetter

Depo. at 27)(App. at 105). Likewise, Andringa and McKibben indicated to Harreld that

they thought he would be a good candidate. (Andringa Depo. at 13)(MSJ App. at 142). In

other words, defendants discussed policy matters facing the University of Iowa while at the

same time evaluating an individual who, if they had their way, would later come before the

full Board for consideration for the president position. A reasonable factfinder could easily

conclude these facts, when viewed in the light most favorable to Krapf, establish either

action, deliberation, or both.

D. A genuine issue of material fact exists on the issue of whether defendants

intended to violate the Open Meetings Law

Even if the series of meetings could be considered ministerial purposes, the Open

Meetings Law still applies if defendants intended to violate the purpose of chapter 21. The

summary judgment record is replete with evidence that defendants structured the meetings

7
 E-FILED 2017 SEP 22 5:52 PM POLK - CLERK OF DISTRICT COURT

with the specific intent to avoid the requirements of chapter 21. To begin with, Harreld,

Rastetter, and Andringa communicated with each other about the meetings on their private

business e-mail accounts rather than via their official Board e-mail accounts. (Deposition

Ex. 6-9)(MSJ App. at 187-96). A reasonable factfinder could infer that the purpose in using

the personal e-mail accounts was to avoid subjecting the communications to disclosure

under the Iowa Open Records law. Iowa Code 22.1 et seq. Additionally, the meetings

were held at the private business offices of Rastetters company in Ames instead of the

Boards central office in Urbandale. The Summit Agricultural Office had not been used

previously as the location of a Board meeting, nor has it been used since. (Andringa Depo.

at 10; Mulholland Depo. at 10-11)(MSJ App. at 139 and 167-168). None of the other four

Board members were invited, nor was the meeting discussed with Board staff. (Dakovich

Depo. at 12; McKibben Depo. at 17; Rastetter Depo. at 19, 47; Andringa Depo. at 8;

Mulholland Depo. at 9-10)(MSJ App. at 12, 46, 97, 125, 137, 166-67). Strangely, none of the

defendants talked to anyone about the substance of the meeting after it occurred.

(Dakovich Depo. at 19; McKibben Depo. at 32; Andringa Depo. at 15-16; Mulholland Depo.

at 18)(MSJ App. at 19, 61, 144-45, 175).6 The coup de grace, however, is Rastetters

admission that he limited the number of Board members in attendance and separated them

into two separate meetings with Harreld specifically because of the Open Meetings Law.

(Rastetter Depo. at 34, 39-40)(Depo. at 112, 117-20). Indeed, Mulholland, who had prior

experience with the Open Meetings Law, knew that the meetings were coordinated in such

way as to avoid the requirement that they be public. (Mulholland Depo. at 14-15)(Depo. at

6 There is a Fight Club-like quality to these meetings in that none of the defendants talked to
each other or anyone else about the meetings in advance, while they were playing musical chairs, or
after the meetings took place. See Fight Club (Twentieth Century Fox Film Corp. 1999) available at
https://www.youtube.com/watch?v=dC1yHLp9bWA (last accessed Sept. 22, 2017) (The first rule of
Fight Club is you do not talk about Fight Club. The second rule of Fight Club is you do not talk
about Fight Club).

8
 E-FILED 2017 SEP 22 5:52 PM POLK - CLERK OF DISTRICT COURT

171-72). A factfinder could conclude from these facts that the serial submajority gatherings

were planned and carried out with the specific intent to avoid the requirements of the Iowa

Open Meetings Law. Indeed, he or she would be hard-pressed to conclude otherwise.

Rastetters self-serving testimony that he coordinated the meetings in order to make

sure they were in compliance with the Open Meetings Law is intellectually dishonest at

best and intentionally misleading at worst. (Rastetter Depo. at 34, 39-40)(App. at 112, 117-

20). Had Rastetter truly intended to comply with chapter 21, he would have erred on the

side of transparency. He would have instructed Harreld to have made his meeting request

according to the Boards own policy, provided public notice, met in the open, and recorded

the meetings with minutes. He did none of these things. At every opportunity to provide

transparency, he instead chose secrecy. That is evasion; not compliance. In addition,

Rastetters deposition testimony is so contradictory, that it is not credible. For example, he

testified that the defendants gathered in their capacities as regents for the purpose of

recruiting Harreld to apply for the University of Iowa president position, but he did not

believe that it was an official Board matter. (Rastetter Depo. at 24-25; 32, 37, 41,

48)(App. at 102-103, 110, 115, 119). There mere recitation of his testimony is sufficient to

show the contradiction. If he did not believe they were meeting about a Board matter, than

he should not have had any concern that the Open Meetings Law would apply. Iowa Code

21.2(2) (defining meeting to include only deliberations on matters within the scope of the

governmental bodys policy-making duties). But, there is more. In his deposition,

Rastetter failed to disclose that he met face-to-face with Harreld in early June together

with University of Iowa interim President Jean Robillard and Board interim executive

director Peter Matthes. (Rastetter Depo. at 12-14)(MSJ App. at 90-92). He also failed to

mention the three- to four-hour meeting in his September 2015 statement regarding the

University of Iowa presidential search process. (Rastetter Depo. Ex. 5)(MSJ App. at 185-
9
 E-FILED 2017 SEP 22 5:52 PM POLK - CLERK OF DISTRICT COURT

87). In fact, the meeting was not made public by anyone involved in the search process

until Harreld gave public interviews to the media on November 1, 2015. (Vanessa Miller,

New University of Iowa president says he didnt want the job at first, The Gazette, Nov. 1,

2015, available at http://www.thegazette.com/subject/news/education/higher-education/new-

university-of-iowa-president-says-he-didnt-want-the-job-at-first-20151101 ); Jeff Charis-

Carlson, Earlier Bruce Harreld visit to Iowa revealed, Iowa City Press Citizen, Nov. 1,

2015, available at http://www.press-citizen.com/story/news/education/university-of-

iowa/2015/11/01/earlier-bruce-harreld-visit-iowa-revealed/74807034/ ) (MSJ App. at 197-

206). On the basis of Rastetters material non-disclosure, a reasonable factfinder could

conclude that his inability to recall the early June meeting with Harreld renders his

remaining testimony untrustworthy. For this reason, when viewed in the light most

favorable to the plaintiff, Rastetters declaration of intent to comply with the Iowa Open

Meeting Law should be given no weight.

CONCLUSION

For the reasons stated herein, Plaintiff Gerhild Krapf requests this Court to deny

Defendants motion for summary judgment.

DATED this 22nd day of September 2017.

_________________________________________
Gary Dickey, AT#0001999
Counsel of Record for Plaintiff
DICKEY & CAMPBELL LAW FIRM, PLC
301 East Walnut Street, Suite 1
Des Moines, Iowa 50309
PHONE: 515.288.5008 FAX: 515.288.5010
E-MAIL: gary@dickeycampbell.com

10