City Council member’s removal from office violated his procedural due process protections

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.

 

 

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.

SF430 creating the Iowa Public Information Board is sent to Governor

SF430 was passed by the Senate last week and sent to the Governor yesterday.  It creates the Iowa Public Information Board as a new entity to investigate and enforce Iowa’s Open Meetings and Open Records Laws.  It allows the Board to facilitate a mediation and settlement process when a complainant and government entity cannot agree on whether a violation of either act has occurred, and creates an alternative complaint and enforcement proceeding to be adjudicated by the Board if mediation fails or is refused.  The Board will consist of nine members appointed by the Governor.  The Board will be given the authority to hire one staff person, an attorney, to act as Executive Director.

Iowa C.A. finds signatures on letter did not constitute deliberation among elected officials

by Gary Taylor

Fleener v. City of Oskaloosa, et. al.
(Iowa Court of Appeals, November 25, 2009)

Signatures on letter did not constitute deliberation among elected officials.

The Mahaska County Board of Supervisors held a public meeting on November 19, 2007, regarding the possible location of a new Pella Municipal airport in Mahaska County. The Board rejected the proposed site if it were to be used solely as a Pella airport, rather than a regional airport, and sent a letter to Pella city officials to that effect. On January 2, 2008, the CEO of Musco Sports Lighting in Oskaloosa called the Board of Supervisors office and asked for a meeting.  Not knowing the purpose of the meeting, one supervisor went alone to the Musco offices where he met with other Musco officials and the director of the Oskaloosa Chamber of Commerce.   The supervisor was informed that the Pella Airport Site Selection Task Force was scheduled to meet on January 4, 2008 and Musco was interested in keeping dialog open as to the concept of a regional airport.  An employee of Musco was present at this meeting, and was placed in charge of drafting a letter to the City of Pella mayor and city manager, anticipating gaining support from both the Oskaloosa City Council and Mahaska Board of Supervisors for Musco’s request.  With the assistance of the mayor of Oskaloosa a letter was drafted.  This letter was to signal their openness to further communicate with Pella about airport site selection. The January 3, 2008 letter read:

Airport site selection is important to the economic well-being and sustainability of the entire area.  Accordingly, for the long-term mutual benefit of our communities we would request the opportunity to participate with the Pella City Council in evaluating site selection for a new airport to serve employers and employees of the Pella and Oskaloosa communities.  Thank you.

Sincerely . . .

The Musco employee contacted various members of both the Oskaloosa City Council and Mahaska County Board of Supervisors, in hopes of obtaining their signatures.  The mayor and four of the seven Oskaloosa City Council members signed the letter, as did two of the three Mahaska County Supervisors.

On February 4, 2008, J.D. Fleener, a Mahaska County resident, filed this action against the above defendants, alleging a violation of the Iowa Open Meetings law.  The Mahaska Board of Supervisors held a public meeting on February 19, 2008, in order to authorize the sending of an additional letter to the City of Pella, clarifying their interest regarding the airport site selection.  Similarly, the Oskaloosa City Council also held a public meeting and voted to send a follow-up letter, expressing the majority of the Council’s interest in continuing dialog with Pella on the airport site selection to benefit both communities.  The Mahaska supervisors, joined by the Oskaloosa defendants, filed a motion for summary judgment of the open meetings challenge.  The district court granted the motion on January 14, 2009.

The issue in the case was whether the events culminating in the signatures of the elected officials from Mahaska County and Oskaloosa constituted a “meeting” under Iowa’s open meetings law (Iowa Code 21.3).  In her deposition, the Musco employee discussed contacting the signatories and inviting them individually to the Musco office, or volunteering to bring the letter to their home or place of business in order to sign the letter.  The court concluded that there was no evidence of an in-person gathering of any of the elected officials to discuss the letter among themselves.

The court next looked at whether an electronic gathering occurred.  The evidence indicated that the Musco employee contacted the elected officials individually, either by phone or e-mail, prior to and during the drafting of the letter.  At least one of the elected officials reviewed a draft of the letter prior to signing the final copy.  Fleener argued that these separate phone and e-mail contacts amounted to serial communications resulting in deliberation, such that a meeting occurred.  The court disagreed, however, finding neither evidence that the elected officials communicated with each other, nor intent to circumvent the open meetings law requirements.  According to the court, the most that could be said was that as the various members signed the letter, the later ones to sign knew who had signed before them.  Their signatures were based on conversations with individuals from Musco, not each other.   The court affirmed the ruling in favor of the city and county officials.

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