Public Openness Could Be More Open

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Tuesday, December 5, 2017

By Rick Morain

Compared to most other states, Iowa has pretty good laws and administrative rules requiring openness concerning public meetings and public records. A few significant situations, however, still await remedy.

Section 21 of the Iowa Code governs open meetings, and Section 22 handles public records. There are improvements that would strengthen both sections, and pitfalls into which some public boards and agencies sometimes fall.

Regarding open meetings:    

Section 21(5)(i) allows a public board to close a meeting “to evaluate the professional competency of an individual whose appointment, hiring, performance or discharge is being considered . . .”.

But it sets forth two requirements, both of which must be met, in order to close the meeting. One is that the closure is permitted only “when necessary to prevent needless and irreparable injury to that individual’s reputation.”

The injury must be BOTH needless and irreparable. In other words, the meeting could not be closed even if irreparable damage might be done to the individual’s reputation, if there were an overriding reason to hold the meeting in open session.

The second requirement in order to close an evaluation meeting is that the individual must request a closed session. The board can’t close such a meeting if the individual wants the evaluation to be held in public.

Boards and councils in Greene County, to my knowledge, have no history of violation of this requirement. But I’m aware that other places around the state are not so fortunate. If the public were more aware of the requirement, violations would be less likely to occur.

Another situation that should be addressed is the so-called “walking quorum” or “serial meeting.” This constitutes a way for board members to consider a matter outside of an actual public meeting.

A walking quorum takes place, for instance, when one or two members of a five-member board (therefore fewer than a quorum) meet with the board’s executive officer to discuss an issue, and then one or two other members do the same thing, and so on, until all members have had the same discussion with the CEO.

The sessions are not strictly illegal because at no time did they constitute a majority (quorum) of the board. If a majority of board members meet to discuss board business, the meeting must be held under open meeting requirements, with the public notified of the time, place and agenda so it can also attend the meeting.

While not illegal, a walking quorum obviously evades the spirit of the open meetings law. Its purpose is to keep the public in the dark about the discussions and decisions on one or more topics until the members reach consensus.

A walking quorum usually involves a subject of particular sensitivity locally, and that’s why it’s employed.

To make walking quorums illegal, and thereby give people the access to such local government decisions that they should have, Iowa law in Section 21 needs to be changed.

The Iowa Public Information Board and the Iowa Newspaper Association have made attempts along that line in the past, but to no avail. They will keep trying.

Finally, a legal requirement that is often violated, sometimes innocently, is the law that defines what constitutes a meeting of a public body, especially in a small town or rural county.

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 with the scope of the governmental body’s policy-making duties.”

So if three members of a five-member board or council are together and discuss an issue that affects the work of the board or council, that constitutes a meeting. As noted above, people must then be notified of the time, place and agenda, and be given the opportunity to attend the get-together if they so choose.

The three might be good friends, and might get together at the coffee shop in the morning, or maybe right before or right after an official meeting. But if they discuss any issue relative to their board or council, they are breaking the law.

Keeping conversations away from their common board interests at such times requires alertness on the part of board members.

The preamble of Chapter 21 sums up the general requirements for Iowa’s public meetings:

“This chapter seeks 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.

“Ambiguity in the construction or application of this chapter should be resolved in favor of openness.”

Rick Morain, retired longtime editor-publisher of the Jefferson Herald, continues to write a weekly column for the newspaper. He also serves on the Iowa Public Information.

 

INA member newspapers are invited to consider publishing it as a guest column.

INA member newspapers are invited to consider publishing this as a guest column. Download the word document here.