by Gary Taylor
Burke v. City Council of City of Lansing
Iowa Court of Appeals, February 22, 2017
Members of the Lansing City Council voted to remove city council member William Burke from office for claimed violations of our open meetings law (OML). On one occasion the council issued an agenda for a closed session “to discuss strategy in matters that are presently in litigation or where litigation is imminent.” After the agenda was issued, the city clerk requested an opinion from the Lansing city attorney as to whether the two topics she understood to be up for discussion actually qualified for closed session under the OML. The city attorney opined that the topics did not, in fact, qualify for closed session. The clerk forwarded the memo to the city council members, including Burke. Burke notified the clerk that he disagreed with the clerk’s characterization of the purposes of the meeting as the clerk had reported them to the city attorney. When the scheduled meeting was held the council voted 2-1 to go into closed session, with Burke being one of the two council members to vote in favor. Later, the council held another special meeting on an unrelated matter. Twenty-four-hour notice was not given.
Tensions between the council and residents resulted in an investigation by the Allamakee County attorney into the council’s actions. The county attorney filed a petition alleging the two meetings violated the OML. The attorney retained to represent the council and its members concluded the county attorney had “made some legitimate allegations,” and predicted fines, costs and attorney’s fees will likely be assessed against each council member. The attorney set forth a potential settlement strategy she had discussed with the county attorney that would require Burke to resign from the council in exchange for dismissal of the lawsuit. After a closed session of the council which Burke did not attend, the mayor petitioned the council to remove Burke from office for “willful misconduct and maladministration in office” in his handling of several matters relating to OML which resulted in litigation against the city and members of the council. After a special meeting, the council voted 4-0 to remove Burke from office (Burke abstained from the vote). Thereafter Burke challenged his removal in district court, raising several issues with the council’s proceedings. The district court denied Burke’s petition, and Burke appealed. The sole issue considered by the Court of Appeals was procedural due process.
Burke argued that the removal proceeding was fundamentally unfair because each member of the council who voted on his removal had a pecuniary conflict of interest in deciding his fate, and the “council itself generated the factual record necessary to sustain its decision, which perpetuates its conflict of interest.” The Court of Appeals determined that Burke did not receive a “fair trial in a fair tribunal” as required by the Constitution. The council members understood that they would eliminate their own financial exposure for possible violations of the OML if they removed Burke. Furthermore, the council combined the prosecutorial function (by authorizing initiation of the removal process) with the adjudicative function (by presenting their own witness testimony to document their own personal knowledge of the grounds for removal).
Because the removal proceeding violated Burke’s right to procedural due process, the Court of Appeals sided with Burke and reversed the order of the district court.