Changes in local government meetings

Rick Morain

A Jan. 9 Iowa Appeals Court decision could bring a major change to the conduct of meetings by Iowa’s local government bodies, including county supervisors, city councils, and school boards.

The decision centers on the legitimacy of closed sessions by those public bodies. The specific citation of Iowa law at issue is Section 21.5(1)(i) of the state code. Section 21.5 contains a list of conditions that permit closed meetings. The specific exemption at issue reads as follows:

“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.”

The second condition, “that individual requests a closed session,” is never a factor in a public body’s decision to close a meeting. The individual either requests that a meeting be closed or does not. Period.

It’s the first condition, “when necessary to prevent needless and irreparable injury to that individual’s reputation,” that governed the appeals court’s decision in a case that arose four years ago when the Cedar Rapids City Council closed a meeting in order to consider an applicant for the position of city clerk.

A citizen of Cedar Rapids brought a lawsuit against that city, arguing that the city council did not establish that the applicant’s reputation would sustain “needless and irreparable injury” if the evaluation were held in open session.

The district court which first heard the case dismissed the lawsuit. The appeals court, however, reversed part of the district court decision, agreeing with the plaintiff that the city council had not taken the required steps to justify a closed session.

What the Cedar Rapids City Council did, in my experience, is customary among the vast majority of local public bodies in Iowa. That’s certainly the case in Greene County. In more than five decades of covering local government meetings here, I can’t recall a single instance when a public body denied a closed session to an individual “whose appointment, hiring, performance, or discharged is being considered” if the individual asked for it.

That may be a function of my memory, which of late has been leaking. But I don’t think so. Certainly in the last few years, no such denial of a closed session sticks in my memory bank. On the contrary, closed meetings are standard when requested by the individual, including regularly scheduled evaluations of employees’ performances. In some cases the public board or council announces in advance its intention to close a meeting for evaluation of a specific employee. The danger to the employee’s reputation is never cited.

The chances that such employees have committed acts that would cause irreparable damage to their reputations if the evaluations were held in open session are infinitesimally small.

Note that the law doesn’t say “needless OR irreparable injury.” The wording is “needless AND irreparable injury.” And it doesn’t allow closing a meeting when an open session MIGHT do injury: the public body must determine that the harm to the individual’s reputation WILL result.

The problem for the local government body is obvious. In order to meet the requirements of Section 21.5(1)(i), the board or council must be aware of potential reputational damage before going into closed session. But if such potential is stated publicly by the government body, then the damage to the reputation takes place.

The appeals court, in its Cedar Rapids decision, lays out a solution for that problem: once the public body goes into closed session, it must immediately determine the damage to the individual’s reputation that the closed meeting will cause. If no relevant damage is discovered, then the board or council must return to open session to conduct the evaluation.

The Cedar Rapids City Council, if it so chooses, may take the appeals court’s decision on up to the Iowa Supreme Court. It’s not yet known if the council will take that course of action. And the Iowa Legislature might tweak the law to change the requirement about reputational damage.

And decisions of Iowa district and appeals courts, until they’re affirmed by the Iowa Supreme Court, are technically not binding.

But in the meantime, local government bodies across Iowa need to rethink how they conduct performance and hiring evaluations going forward. It would be a major change for the state’s school boards, boards of supervisors, and city councils.

Rick Morain is a reporter and columnist with the Jefferson Herald.