QUESTION: Who is covered by Chapter 21?
REPLY: Iowa Attorney General opinions have produced these guidelines:
(1) To be covered by Chapter 21, a governmental body should be one created
under statute or by executive order or be a local board, council, commission
or other governmental unit exercising policy-making authority. Generally,
the governmental body is one created specifically by law or executive order
and not one incorporated on a discretionary basis. Consequently, a school
board or city council is a governmental body covered by Chapter 21, but
a non-profit organization or a quasi-public agency most likely is not even
though it may receive public funds. (While receipt of public funds or tax
money is not enough to make an agency subject to Chapter 21, the allocation
of those funds generally is subject to Chapter 22, the public records law.)
(2) Committees of boards, councils, commissions, etc., covered by Chapter
21 also are covered by law if (a) they comprise or their meetings involve
a majority of the members of the governmental body itself or (b) they are
formally and directly created and exercise some policy- or decision-making
authority.
(3) Under 21.2(h) as passed by the Legislature in 1993, the attorney general's
office noted "that advisory bodies created by school boards and county
boards of supervisors [and other governmental agencies] to develop and make
recommendations on public policy issues" are subject to the provisions
of the open meetings law. (Tabor to Stilwill and Sarcone, 93-11-5).
Finally, two other points should be remembered with regard to government
committees: Even if a committee does not come under the provisions of Chapter
21, it may still hold public sessions. Closed meetings are not mandated.
The correspondence, minutes, records, etc., of a committee generally are
subject to the provisions of Chapter 22, the open-records law, even if the
committee is not covered by Chapter 21.
QUESTION: In
one sentence of Chapter 21.2, "meeting" is defined broadly to
include most formal and informal gatherings of a majority of members of
a governmental body. In the next sentence, however, gatherings "for
purely ministerial or social purposes" are not considered to be "meetings."
Why is the law's coverage limited in this way?
REPLY: A wide range of activities could fall within the definition
of "meeting." Most of these gatherings are included in Chapter
21.2's definition of "meeting." An important exception is a gathering
of less than a majority of members. If the notice, openness and record-keeping
requirements of Chapter 21 were applied to such a gathering, it could limit
free speech and association rights of public officials.
Chapter 21.2 does define a "meeting" of a majority of the members
as excluding gatherings for purely social or ministerial purposes where
there is no discussion of policy or no intent to avoid the purposes of the
Act.
The definition of "meeting" permits the majority to gather
for limited purposes without being subject to the requirements of the Act.
A purely social gathering is placed outside the coverage of the statute
to avoid a collision with the association rights of public officials under
the First Amendment. Likewise, if a majority of the members of a governmental
body is simply traveling together to a meeting, conference, etc., that activity
would be outside the scope of Chapter 21 so long as there was no discussion
of policy and there was no intent to avoid the purposes of the Act.
A gathering of a majority of members for purely ministerial purposes is
excluded from the Act's coverage because a ministerial matter by definition
excludes exercising any discretion about policy matters. Clear examples
are the members' signing of letters or documents whose contents have been
approved in a prior, formal open meeting or school board members attending
graduation ceremonies.
Questions about "ministerial" functions and information-gathering
trips by governmental bodies have been addressed in attorney general's opinions
including Cook to Pellett and Crabb, 79-5-14, Stork to Reis 81-2-13 and
Stork to O'Kane, 81-7-4.
The last opinion notes, " it appears that gathering for `purely ministerial
purposes' may include a situation in which members of a governmental body
gather simply to receive information upon a matter within the scope of the
body's policymaking duties. We emphasize, however, that the nature of any
such gathering may change if either `deliberation' or `action' occurs. A
`meeting' may develop if a majority of the members of a body engage in any
discussion that focuses at all concretely on matters over which they may
exercise judgment or discretion."
A cautionary note was sounded in 81-2-13 which said the Iowa Civil Rights
Commission would be "meeting" if it assembled to hear concerns
of inmates at the state penitentiary because: "a governmental body
charged with a statutory duty of conducting investigations" comes under
Chapter 21 "when a majority of its members meet to obtain information
from individuals participating in the investigation."
The latitude provided by exempting "ministerial" and "social"
functions from coverage by Chapter 21 then is justifiable for the reasons
given above, but plainly the latitude must be drawn narrowly to be consistent
with Chapter 21's mandate for openness.
QUESTION: What guidelines have been established for providing the
"tentative agenda" and reasonable notice of public meetings called
for in Chapter 21.4?
REPLY: This area, too, has received considerable attention from public
agencies, the news media, the attorney general's office, and the Iowa Supreme
Court in a July 1991 decision.
The standards of notice in Chapter 21.4 are the minimum requirements. For
example, advising interested persons to listen to a certain radio station
at a set time for information about an upcoming meeting would not constitute
"reasonable notice." Further, a "tentative" agenda must
include more information than simply reciting such catch-all items as "Approval
of minutes; old business; new business."
In its opinion in KCOB/KLVN and the Newton Daily News v. Jasper County Board
of Supervisors, the Iowa Supreme Court set forth several guidelines for
meeting notices and tentative agendas. These included:
(1) " (T)he content of a tentative agenda notice can be subject to
change. (A) proper construction of the notice provision in section 21.4
allows discussion and action on emergency items that are first ascertained
at a meeting for which proper notice was given. However, if action can be
reasonably deferred to a later meeting, this should be done."
(2) " The sufficiency of the detail on the tentative agenda must be
viewed in the context of surrounding events." Here the court said that
the test for a tentative agenda was whether the information was reasonably
sufficient to alert interested people as to the subject matter to be considered.
(3) The Court said that the standard for compliance with the meeting and
notice procedures should be "substantial" rather than "absolute."
That is, the Court will not find a public agency to be in violation of Chapter
21 if the violation is strictly or primarily a technical one where the precise
letter of the law is not followed. If a public agency acting in good faith
substantially complied with the law, that is sufficient for the Court.
(4) The Court did caution, however, that "a lack of wrongful intent
to violate the open meetings law cannot excuse non-compliance." The
Court affirmed legislative intent that ignorance of the legal requirements
of Chapter 21 is not a defense against substantive violations.
In the KCOB case, the Iowa Supreme Court provided public agencies with more
flexibility in adhering to tentative agendas than had been suggested by
an attorney general's opinion in 1979 (Cook to Martens, 79-7-11).
Notice of a meeting and the tentative agenda are provided by the public
agency involved; a news agency requesting notice does not have to pay postage
or other costs to receive the notice and the tentative agenda (Cook to Menke,
79-4-19).
Failure to provide reasonable notice, however, does not necessarily mean
that a meeting is illegally closed. An attorney general's opinion distinguishes
between the barring of the public from a meeting and the failure to notify
the public about a meeting. Consequently, while a public agency and its
members might violate Chapter 21 by not providing reasonable notice, they
may not be subject to all of the penalties for holding an illegally closed
meeting (Cook to Dooley, 79-10-1).
A news medium or individual citizen cannot be restricted to having only
the "tentative agenda" and "reasonable notice" of an
upcoming public meeting. An attorney general's opinion (Stork to McDonald,
81-8-24) makes clear that material prepared for discussion at a public meeting
is a public record under Chapter 22, the law for inspection of public records.
Consequently, an individual may request copies of that material in advance
of the public meeting and in accord with provisions of Chapter 22. In this
case, however, the individual might have to pay the costs for copying agenda
material, as covered in Chapter 22.
QUESTION: Chapter 21 permits the closing of a meeting for any one
of 10 reasons. Why?
REPLY: As noted in Chapter 21, at the end of the list of exemptions
and discussions about the conduct of closed meetings: "Nothing in this
section requires a governmental body to hold a closed session to discuss
or act upon any matter." The list of exemptions, therefore, is not
a list of when meetings are required to be closed; rather, the exemptions
suggest under what conditions public agencies may consider whether to close
a meeting. As noted in an attorney general's opinion (Stork to O'Kane, 81-7-4),
"Discussion during a closed session must relate directly to the specific
reason announced as justification for the session."
Exemptions (a) through (j) of Chapter 21.5 embody a legislative effort to
address countervailing interests. Eight key exemptions are discussed below.
"(a) To review or discuss records which are required or authorized
by state or federal law to be kept confidential or to be kept confidential
as a condition for that governmental body's possession or continued receipt
of federal funds."
Problems might arise if a governmental body lacked discretion under Chapter
21 to discuss confidential records in closed session. Discussion open to
the public could violate the law allowing the confidentiality of a record;
discussion closed to the public would violate the open-meetings law without
this exemption.
Examples of laws allowing for the confidentiality of certain records include
the Family Educational Rights and Privacy Act of 1974 (making confidentiality
of student records a condition for federal funding) and Chapter 22.7 of
the Iowa Code allowing (but not mandating) the confidentiality of specified
public records.
"(c) To discuss strategy with counsel in matters that are
presently in litigation or where litigation is imminent where its disclosure
would be likely to prejudice or disadvantage the position of the governmental
body in that litigation."
Certain conditions must be met before a meeting may be closed under this
exemption: (1) The litigation must be in progress or be "imminent,"
not merely possible or likely at some future date, and (2) if the litigation
is "imminent," the disclosure of strategy would likely prejudice
or disadvantage the governmental body's case.
"(e) To discuss whether to conduct hearings to suspend or expel
a student, unless an open session is requested by the student or a parent
or guardian of the student if the student is a minor."
This exemption permits a closed session at two stages of disciplinary action
against a student. The first stage, deciding whether to conduct a hearing,
may be closed at the discretion of the governmental body. The second stage,
the hearing itself, also may be closed unless the student or the parent
or guardian, if the student is under 18, requests an open session. The student,
parent or guardian has no right to demand a closed hearing under this exemption.
Because disciplinary actions may involve student records otherwise considered
private, the Iowa Association of School Boards recommends that a board obtain,
from the student, parent or guardian who wants an open session, a written
request and permission for disclosure of the records.
"(f) To discuss the decision to be rendered in a contested case
conducted according to the provisions of Chapter 17A (The Administrative
Procedure Act)."
This exemption is rather unambiguous, and applies only to state agencies.
A contested case under Chapter 17A is quite similar to a court trial. It
is presided over and decided by one or more hearing officers (similar to
judges) for disputes about rates, prices, licenses and the like.
"(g) To avoid disclosure of specific law enforcement matters, such
as current or proposed investigations, inspection or auditing techniques
or schedules, which if disclosed would enable law violators to avoid detection."
"(h) To avoid disclosure of specific law enforcement matters, such
as allowable tolerances or criteria for the selection, prosecution or settlement
of cases, which if disclosed would facilitate disregard of requirements
imposed by law."
The public is interested in effective and efficient enforcement of the law.
Persons who want to violate a law might do so with reduced fear of prosecution
if they know that prosecution tolerances, investigative schedules or investigative
techniques exist.
"(i) To 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."
This exemption permits public agencies to protect individual reputations
but does not allow closed sessions for each and every discussion of "personnel"
matters. Its scope is wide and includes any evaluation of an individual's
professional competence occasioned by consideration of that individual's
appointment, hiring, performance or discharge. It would, of course, be unreasonable
and inconsistent with the intent of Chapter 21 to apply this exemption to
evaluations of corporate or business "entities." Such entities,
which do not have personal privacy interests at stake, cannot require a
closed meeting for discussion of their qualifications.
The potential breadth of this exemption is largely offset by the two conditions
that must be met before a meeting may be closed under this exemption: (1)
the individual involved must request a closed session, and (2) there must
be reasonable basis to believe the individual's reputation would be injured
irreparably and needlessly unless the meeting is closed. (The
construction here may allow irreparable injury if that is unavoidable in
serving the public interest.)
The exemption provides no right for the person who is the subject of discussion
to attend the session closed by request; nor does it forbid such attendance.
In Feller v. Scott County Civil Service Commission, the Iowa Court of Appeals
limited a public agency's discretion in deciding whether to honor a request
for a closed session. The Court ruled that there could be basis for a lawsuit
if a public agency denied a request for a closed session in arbitrary and
capricious fashion.
"(j) To discuss the purchase of particular real estate only where
premature disclosure could be reasonably expected to increase the price
the governmental body would have to pay for that property. The minutes and
tape recording of a session closed under this paragraph shall be available
for public examination when the transaction discussed is completed."
A meeting may be closed under exemption (j) only when public discussion
of the possible purchase of particular real estate could be reasonably expected
to increase the price demanded of that property. The exemption does not
allow the meeting to be closed for sale of real estate.
The public interest that this exemption is intended to serve is that of
thrift or economy in public expenditures. The exemption does not allow closed
sessions for discussion of real estate in general.
If a session is closed under this exemption, the records of that closed
meeting must be made available for public examination when the transaction
is completed or cancelled.
Under Chapter 21.5(4) the minutes and tape recording of any closed session
must be kept at least one year. If more than a year should elapse between
a meeting closed under Chapter 21.5(1)(j) and the completion of the real-estate
transaction, the record of that closed session should be kept for a reasonable
time after the completion of the transaction so it can be available for
public examination.
QUESTION: Does any provision of the Code of Iowa permit a final action
to be taken in closed session?
REPLY: Chapter 21 requires final actions to be taken in open sessions.
(For example, if the discharge of an employee is discussed in closed session,
the vote to discharge the employee must take place in open session.) Chapter
21.5(3), however, does say that a final action by a governmental body may
be taken in a closed meeting if expressly permitted by some other provision
of the Code. Extensive research of the Code yielded no such provisions.
If a future Legislature chooses to permit a particular type of final action
to be taken in closed session, Chapter 21.5(3) will link the new provision
to the Act as an exemption.
QUESTION: What other sections of the Code permit meetings of governmental
bodies to be closed?
REPLY: Such exemptions to Chapter 21 are found in at least four areas:
Chapter 20.17(3) exempts negotiating sessions, strategy meetings of public
employers or employee organizations, mediation and the deliberative process
of arbitrators in the collective-bargaining process for public employees.
(The initial two sessions shall be open to the public, however.)
Chapter 279.15 exempts hearings to discuss with a teacher a superintendent's
recommendation to terminate a contract with that teacher.
Chapter 279.24 exempts a conference between a school board and a probationary
administrator to discuss reasons for a proposed termination of contract.
Confusion results in the first few months of each year when some school-board
sessions are closed under Chapter 279 and citizens and reporters do not
realize that Chapter 21 does not apply in cases exempted under Chapter 279.
Chapter 602.2103 exempts hearings by the Commission of Judicial Qualification
when it considers the retirement, discipline or removal of a judge.
QUESTION: Chapter 21.6(2) notes: "Once a party seeking judicial
enforcement of this Chapter demonstrates to the court that the body in question
is subject to the requirements of this Chapter and has held a closed session,
the burden of going forward shall be on the body and its members to demonstrate
compliance with the requirements of the Chapter." What is meant
by the "burden of going forward" and why should that burden be
on the governmental body?
REPLY: This subsection provides for a shift in the burden of going
forward in an action to enforce the requirements of the Act. Ordinarily
in litigation, the burden is on the complaining party (the plaintiff) to
show that a requirement of a law has been violated. Chapter 21.6(2) provides
an exception to that general rule. Whenever the plaintiff can show that
(1) the defendants are members of a governmental body subject to the requirements
of the Act and (2) the defendants have held a closed meeting, the burden
of going forward shifts to the defendants. The governmental body and its
members must show by a preponderance of the evidence that the requirements
of Chapter 21 were followed.
The shift in the burden to governmental bodies and their members is fundamental
to the intent of the open-meetings law. Evidence of compliance with the
requirements for closing a meeting is largely in the possession of the governmental
body and its members. They are in a much better position to prove compliance
than a typical plaintiff is to prove non-compliance. Also, placing the major
burden on those parties who have closed a meeting is in harmony with the
express purpose of the Act: to maximize public access to governmental decision-making.
Those who curtail public access by closing meetings are rightly assigned
the duty of defending the legality of such closure.
QUESTION: Chapter 21.6(3)(b) provides "payment of all costs
and reasonable attorneys fees to any party successfully establishing a violation
of this Chapter." How has the provision worked in practice?
REPLY: The provision has worked well, not so much in monetary terms
but in terms of encouraging public agencies to be responsive to Chapter
21 and to questions raised about agency procedures. In a handful of cases,
public agencies have had to reimburse litigants for a few hundred to a thousand
dollars or so in legal cases. But in most instances, lawsuits have not had
to be filed because a public agency corrected its policies or justified
them under Chapter 21.
It must be noted, however, that reimbursement of costs is made only in successful
cases. So a person charging a public body with 10 violations of the law
may be reimbursed for only a portion of the costs if successful in only
a few of the 10 charges made. Consequently, litigation against an agency
for violating Chapter 21 should not become a shopping list of potential
or imagined violations.
The defenses provided against individual liability for violation of Chapter
21 (21.6) have protected public officials from having to pay complainants'
legal fees out of their own pockets.
More important, the reimbursement provision has helped citizens and public
agencies work out many questions promptly and amicably.
QUESTION: Can a governmental body covered by Chapter 21 take a secret
ballot?
REPLY: No. Chapter 21.3 states, "The minutes shall show the
results of each vote taken and the information sufficient to indicate the
vote of each member present. The vote of each member present shall be made
public at the open session. The minutes shall be public records open to
public inspection."
It would be acceptable to record a vote as unanimous in the minutes of a
meeting, or passed with only [name] dissenting, so long as the members present
are noted in the minutes. However, in other cases the "yes" and
"no" votes should be reported for each member of a public agency
and if an agency is voting whether to go into a closed session it may be
prudent to record the vote of each member, even if the decision to close
a meeting is unanimous.
In a Mitchell County District Court case on this issue, McKinley vs. the
St. Ansgar City Council, a city council contended that a secret ballot was
merely "preferential." The secret vote narrowed a field of candidates
to five who were then approved unanimously by the council members. But a
judge ruled that the procedure violated Chapter 21.3.
Sometimes a public agency might be tempted to seek secret ballots on particularly
sensitive and controversial matters, but it is precisely on such matters
that the votes of individual members should be recorded. For one thing,
citizens are entitled to know how their representatives voted; for another,
such controversial items are most likely to lead to litigation if there
is a possible violation of Chapter 21.
Further, Section 380.4 of the Code of Iowa requires a city council member's
vote to be recorded on any ordinance, amendment or resolution, and 362.2(20)
defines "recorded vote" as "a record, roll call vote."
QUESTION: What steps should a private citizen take at a meeting of
a governmental body when it is suggested that the body go into closed session,
apparently for reasons not legal under Chapter 21 or other sections of the
Code?
REPLY: These steps seem reasonable:
(1) Although you may not be assured access to the floor, seek an opportunity
to voice concerns: "I'd appreciate it if you would specify exactly
which exemption is being used to close the meeting. I question your legal
grounds for closing the session."
(2) Recognize that your goal should be to keep the meeting legally open
and not to punish a governmental body for illegally closing a session. Consequently,
you should, if given the opportunity, explain why you feel the meeting should
remain open and what requirements of closing may not have been met by the
public body.
(3) If the meeting is closed, and you remain concerned that it was closed
illegally, you can consider legal action. Ask the county attorney or a private
attorney (or perhaps your local newspaper, broadcast station or chapter
of the League of Women Voters) whether your concerns are legitimate and,
if it appears they are or that they may be, ask the attorney to forward
your concern to the District Court. All you need to demonstrate to the court
is that (a) the public body is covered by the open meetings law and (b)
a closed meeting was held. The burden of going forward shifts to the public
agency to demonstrate compliance with the law.
(4) Remember, if you are right that the meeting was illegally closed, you
will be reimbursed for all costs and reasonable legal fees. Remember, too,
however, that this provision of the law should not be an invitation to protest
all closed sessions because the law does provide for exemptions to the mandate
for openness.
QUESTION: To what extent do members of a governmental body share
with their attorney responsibility for compliance with the open-meetings
law? Chapter 21.6(3) does provide the members with a defense against damages
if they "reasonably relied" upon the attorney's opinion.
REPLY: According to Chapter 21.6(4), members of a governmental body
cannot claim their ignorance of its requirements as a defense. Yet, the
law also recognizes that opinions of the attorney for the governmental body
will be an important source of information about the Act's requirements.
An attorney is subject to disciplinary action upon a finding that he or
she handled a legal matter without adequate preparation (Disciplinary Rule
6-101(A)(2) of the Iowa Code of Professional Responsibility). Requests for
an opinion about the legality of a closed session generally should be addressed
to the attorney in advance of the meeting. Requests for an impromptu opinion
should be resisted.
A governmental body would be ill-advised to move into a closed session if
a counsel said: "The legality of the closing under consideration is
unclear, but I see no reason why the meeting must stay open."
Reliance on that opinion probably would fail as a defense in court. The
remarks are unmindful of the Act's fundamental preference for openness.
QUESTION: Does a person who wants to speak at a meeting of a governmental
agency have the legal right to do so?
REPLY: No. While the open-meetings act provides no mandate that a
public agency must provide meeting time to any citizen with something to
say, due process and democratic principles will dictate that a public body
should hear those affected by proposed actions. Typically, many public agencies
set aside time for a "public forum" or an "open forum,"
but they are under no mandate under Chapter 21 to do so. Even when discussing
a controversial item on its agenda, the public agency understandably does
not have to provide time to each person at the meeting.
QUESTION: If a majority of the members of a board are communicating
via e-mail at the same time, would that constitute a public meeting?
REPLY: Yes. However, the provisions for electronic meetings under
21.8 apply equally well to telephone and e-mail conferences. So if the majority
of the members of a public agency hold an e-mail conference, they should
follow the same guidelines that would apply to a telephone conference call.
Table of Contents
Rules of Thumb: Chapter
21
Introduction
Sustaining/First Amendment Members
Iowa Code: Chapter 21
Iowa Code: Chapter 22
Questions About Chapter 22
Notes and Additions
Rules of Thumb: Chapter 22