May 2, 2016

On March 18, 2016, the Iowa Supreme Court majority opinion in Hutchison et. al v. Warren County adopted a new standard for determining when a "meeting" occurs under Iowa's  Open Meetings law. Prior to this ruling, a bright line rule existed for determining when a "meeting" was subject to the Open Meetings law: for a meeting to occur, there had to be a gathering (in person or by electronic means) of a majority of the members of the public body and deliberation or action had to occur on a matter within the scope of the body's policy-making duties. Now, the Supreme Court has determined that a meeting of a public body can occur even if a majority of the board or council members are not physically or electronically present at the gathering.
The Court applied agency principles in determining whether a gathering constitutes a meeting.  It concluded that the legal equivalent of an in-person gathering occurs when a majority of members of a public body meet, whether each member attends personally or through an agent.   The application of agency principles to gatherings of a board (or council members) raises a host of still-unresolved issues.  In the Hutchison case, the Court concluded that an absent member of the board may nonetheless be deemed to be present if one of the participants at the gathering has authority to act on the absent member's behalf.  Therefore, if a majority of the board or council members gather to deliberate on a matter within their policy-making duties, either in-person, electronically, or through agents, the Court said that the requirements of the Open Meetings law must be followed.
The Open Meetings law does not prohibit discussions between members of a governmental body and its staff to exchange ideas and gather information in order for the body to act upon an issue during an open meeting.  The Court noted, however, that "the open meetings law does prohibit the majority of a governmental body gathering in person through the use of agents or proxies to deliberate any matter within the scope of its policy-making duties outside the public view."
Actions of staff and governing body members taken prior to implementing a policy decision may be subject to extra scrutiny and review (with the benefit of 20/20 hindsight) by those opposed to the decision.  In light of the Hutchison decision, we recommend that boards consider having legal counsel perform a training session to educate board members and administrative staff on open meetings issues, and how to properly document conversations with staff members in ongoing efforts to appropriately manage the public body and serve the public.  We also recommend that governing boards review the following considerations with legal counsel:
* Use of Staff and Other Agents:  Staff may share information with a board or council member outside of an open meeting.  However, if the staff person can be said to be assisting the board or council with building a consensus among the governing body members on a policy-making matter, the staff person could be viewed as an "agent" for other board members, and such meetings, even if less than a majority of the board or council are present, would be subject to Open Meetings requirements.
* Open Sessions:  Meetings between staff persons and board / council members involving the sharing of views of absent board / council members and including consideration of how the board or council can reach a consensus on an issue should be avoided. If there is any question as to whether an informational discussion could be perceived to be an improper meeting, the public body should hold an open meeting for action on the topic. It is unclear if a future court would determine that a follow-up open meeting with public deliberation and formal action would "cure" an alleged open meetings violation. But electing to hold an open meeting and discuss the issue prior to implementing the policy decision could rebut any argument that the public was prevented from learning about the board's  decision.
* Closed Sessions:  Even if a meeting results in deliberation on a policy-making matter, remember there are numerous topics that are permissible for closed session discussion in Iowa Code section 21.5.  
* Exempt Sessions:  Gatherings of a majority of a board to discuss strategy in matters concerning negotiations with an employee union (section 20.17(3)) and employment conditions of non-organized staff (section 21.9) are fully exempt from the open meetings law.  The full board/council can always meet to discuss these matters outside of an open meeting.
Please don't hesitate to contact your Ahlers & Cooney lawyer with any questions in this area

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Beenken, Katherine


Smisek, Ann


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