The Open Meetings Law – Iowa Code chapter 21 – is not to be taken lightly. There are some readily available resources regarding open meetings at no charge.

The Iowa Attorney General’s office issues monthly "Sunshine Advisories" electronically at http://www.state.ia.us/government/ag/sunshine_advisories/index.html. The advisory bulletins cover open records also. Topics covered under open meetings include agendas and notice, closed sessions, minutes, electronic meetings, and many more.

There is also a direct link to these advisories on School Administrators of Iowa’s Website at http://www.sai-
iowa.org/legalissues/.

A four to five page “Guide to Iowa’s Open Meetings Law” is free at Iowa Association of School Board’s Website at http://www.ia-sb.org/PolicyLegal.aspx?id=1034 . This is a copyrighted document, so avoid making copies to hand out to board members without asking permission. Call Mary Gannon at 515-288-1991 or email her at This e-mail address is being protected from spambots. You need JavaScript enabled to view it to request permission.

Three Notes about the Open Meetings Law (Iowa Code Chapter 21)

1. Applicability of Open Meetings Law to Advisory Committees
   In 1993, Iowa Code section 21.2(1)(h) expanded the definition of "governmental body," for purposes of the Open Meetings Law, to include "[a]n advisory board, advisory commission, advisory committee, task force, or other body created by statute or executive order of this state or created by an executive order of a political subdivision of this state to develop and make recommendations on public policy issues." The Attorney General's office has always maintained - and the DE agrees - that "advisory bodies created by school boards ... to develop and make recommendations on public policy issues are included within the expanded definition of government bodies subject to the Open Meetings Law."

   The Iowa Attorney General's office was recently asked whether its opinion remains valid in light of the Iowa Supreme Court decision in a recent case involving a negotiating committee of the Vision Iowa Board, Mason v. Vision Iowa Board, 700 N.W.2d 34-9 (Iowa 2005), which held that the negotiating committee to Vision Iowa was not subject to Chapter 21. The Attorney General's office concluded that the Vision Iowa decision does not alter its analysis. Therefore, committees created by action of a local school board are subject to the requirements of Chapter 21, even though they lack decision-making authority.

2. When to Hold a Closed Session regarding a Personnel Matter
   Iowa's Open Meetings Law permits a public school board to go into closed session to "evaluate the professional competency" of an individual under certain conditions. Evaluation of an individual's professional competency includes hiring decisions, performance evaluations, and disciplinary matters. The conditions required to go into closed session are as follows:
   • The individual must request the closed session.
   • The closed session must be limited to employment decisions, performance evaluation, or discipline.
   • The closed session must be necessary to prevent needless and irreparable injury to the reputation of the individual.
   Once properly in closed session, a board MAY NOT discuss any individual other than the person who requested the closed session unless such discussion is merely incidental and necessary to a full discussion of the primary individual's professional competency.
3. When the Above does Not Apply
   Student discipline hearings sometimes devolve into a discussion of whether a school employee properly interacted with a student. The Iowa Supreme Court heard one such case about eight years ago. A student appealed his one-day suspension to the local school board and, as is the student's right, requested an openhearing. The student's suspension arose from an incident between the student and a teacher's aide, the student being suspended for calling the aide a vulgar name. The aide, who was disciplined also but less harshly, feared that the family would use the open meeting to question the way she handled the incident. She asked for a closed meeting. The board, relying on advice of legal counsel, voted to go into closed session.

   The Iowa Supreme Court said that the local board was wrong to go into closed session. The issue before the local board was what to do about the student, not the aide. The meeting was not to evaluate the aide's professional competency nor was it to decide issues of her appointment, hiring, performance or discharge. The local board was wrong to override the student's request for openness. [Schumacher v. Lisbon School Board, 582 N.W.2d 183 (Iowa 1998).]

   To avoid an instance where the issues before a local board are truly dual (which was not the case before the Supreme Court), schedule separate hearings for the discipline of a student and the performance of an employee.

 

Closed Sessions

The following is general information about closed session meetings:

1. An agenda is required for a closed session. The agenda (which may be part of the agenda for an open session that includes going into closed session) must let the public know why the session is closed. Names, of course, may not be appropriate to use, but the agenda should recite which exception in Iowa Code section 21.5(1)(a-k) is being invoked.
2. Members of a governmental body must vote to go into closed session while still in open session. It takes an affirmative vote of 2/3 of all members of the body or all members present at the meeting.
3. Separate, detailed minutes of the closed session must be kept, including “all discussion, persons present, and action occurring.” The entirety of the closed session must be tape recorded. Both the minutes and tape(s) shall be sealed and kept by the body for at least one year from the date of the meeting.
4. Final action of any matter discussed in closed session must be taken in open session.
5. Even if no press or other members of the public are present when the time comes to go into closed session, use the procedure to go into closed session! It may be tempting to look around and figure that there is no reason to vote to go into closed session, keep a different set of minutes and tape recording, vote to come out of closed session, and then take final action. BUT – remember that failing to do this means that any member of the public can access the minutes of what happened when a body failed to go into closed session.

 

Personal Liability for Open Meetings Law Violation

The Iowa Court of Appeals on November 9, 2005, upheld a finding that county supervisors violated Iowa Code Chapter 21, the Open Meetings Act. One supervisor settled out of court; the remaining two supervisors were ordered to pay attorneys fees to the media that sued them in the amount of $22,645.93. (This judgment was entered against the two supervisors "jointly and severally," meaning that the plaintiffs could collect any part of the total amount from both supervisors or could choose to collect all of it from either one of the supervisors.)

The facts that got these elected official in trouble were as follows:

1. A special agenda for a meeting of the Board of Supervisors to discuss the county's budget was posted, after which a revised agenda was posted giving a new time (same date) for the meeting; 9:00 a.m. was the time in the special agenda; 2:00 p.m. was the time in the revised agenda.

2. The supervisors met at 9:00 a.m. and were advised by the county attorney that any meeting held before 2:00 p.m. would be a violation of Chapter 21.

3. The supervisors decided that as long as they didn't take any action until 2:00, they could discuss the budget. They proceeded to discuss the budget at length. No one showed up for the budget meeting until 2:00.

The Court of Appeals ruled that the revised agenda cancelled the special agenda, so any meeting before 2:00 p.m. was in violation of the Open Meetings Act. Discussion without action did not cure this violation.

There are three defenses that are available to an elected public official in such cases. None applied here, but the three are as follows:

• That the member voted against the closed session.
• That the member had a good faith belief that s/he was in compliance with the Open Meetings Act (not even close in this case where NO ONE showed up until the 2:00 meeting).
• That the member reasonably relied upon a court decision or the formal opinion of the attorney general or the attorney for the governmental body.