Lawyer must be present at meeting to invoke litigation exception to open meeting requirement

by Gary Taylor

Olinger, et al. v. Harrison County, Iowa, Utman Drainage District et. al.
Iowa Court of Appeals, March 25, 2015

The trustees for the Utman Drainage District went into closed sessions on November 7 and November 14, 2013, allegedly to discuss matters relating to pending litigation.  In court documents the trustees admitted that legal counsel for the district was not present at either meeting.  On November 25, 2013 Olinger and Meyer (plaintiffs) filed a petition alleging that both closed sessions were held in violation of the Iowa Open Meetings Act (OMA).  The parties requested the district court judge to conduct an in camera (private) inspection of the recordings of the meetings for the purposes of determining whether the records should be open to the public.  The district court did so, and filed an order on March 4, 2014 giving plaintiffs access to the November 7 recording (which merely contained a discussion of paying subpoenas from a previous lawsuit) but denying access to the November 14 recordings because the trustees were discussing strategies involving imminent litigation.  The court further ordered each trustee to pay a $100 fine for closing the November 7 meeting unlawfully (which the court later suspended on the condition that the trustees by a handbook on open meetings from the Iowa Freedom of Information Council).  Cross appeals were filed.

One issue presented, but not addressed in detail here, was whether the court could impose the $100 fine – and later suspend that fine – based solely on the court’s in camera inspection of the record.  The Court of Appeals determined it could not impose the fine without taking evidence on the question of whether the trustees knowingly violated the OMA.

The other issue was whether the trustees could invoke the “litigation” exception to the open meetings requirement without the drainage district’s attorney being present at the meeting.  Iowa Code Section 21.5 provides in part:

1.  A governmental body may hold a closed session only by affirmative public vote of either two-thirds of the members of the body or all of the members present at the meeting. A governmental body may hold a closed session only to the extent a closed session is necessary for any of the following reasons:
….
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.

The Court of Appeals found no ambiguity in that section.  Although the trustees argued that the placement of “or” in section 21.5(1)(c) (“matters that are presently in litigation or where litigation is imminent”) makes the presence of counsel optional, the court considered it clear that the phrase “discuss strategy with counsel” at the beginning of the sentence was meant to modify both “presently in litigation” and “where litigation is imminent.”  The court reviewed the legislative history of that subsection and found it supported its conclusion that in order to invoke the litigation exception the governing body’s lawyer must be present at the closed session, regardless of whether the governing body was in litigation or whether litigation was imminent.

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