Background
Warren County is governed by a three-member Board of Supervisors. The supervisors asked the Warren County Administrator to assist the Board in their stated goal of improving the efficiency of the county government. To that end, the Board passed a resolution to determine whether restructuring and/or reorganization was necessary to improve efficiencies and services provided to county residents. The Board assigned the duty of reviewing the possibility of reorganizing the county government to the Administrator.
On separate occasions, the Administrator discussed reorganization plans with individual supervisors. The Administrator then reported thoughts and concerns of individual supervisors to other members of the Board. Through this process, the Board reached compromises about which positions to eliminate as part of the reorganization and the terms of severance packages to be offered to employees in the positions being eliminated.
On March 25 and 26, 2014, the Administrator, one of the supervisors, and the county attorney met with employees whose positions were recommended for termination and provided them with notice of the restructuring and offered them severance packages in lieu of a layoff. The letters provided paid administrative leave through April 16, 2014.
On April 16, 2014, the county employees whose positions were to be eliminated brought a lawsuit against the county and the Board alleging a violation of the open meetings law under Iowa Code chapter 21. On April 18, 2014, the Board held an open meeting to consider the reorganization plan and severance packages. Resolutions approving these items passed without discussion.
The district court concluded that serial gatherings attended by individual supervisors and the Administrator did not constitute a gathering of a majority of the members of the Board under Iowa Code section 21.2(2). The former employees appealed.
Law
Iowa Code section 21.2(2) provides as follows:
Meetings of governmental bodies shall be preceded by public notice as provided in section 21.4 and shall be held in open session unless closed sessions are expressly permitted by law. Except as provided in section 21.5, all actions and discussions at meetings of governmental bodies, whether formal or informal, shall be conducted and executed in open session.
Opinion
Majority
The Court (Wiggins, J., joined by Cady, C.J., and Appel, J. and Hecht, J.) found that the definition of a “meeting” under section 21.2(2) was ambiguous because the interpretation urged by the Board would result in absurd consequences that undermine the clear purpose of Iowa’s open meetings law. As a result, the Court found that the district court should have considered well-settled common law agency principles predating the enactment of Iowa’s open meetings law in construing the open meeting statute. It then concluded that “the legal equivalent of an in-person gathering of a majority of the members of a public body takes place whenever a majority of the members of a governmental body meet, whether each member attends personally or through an agent.”
Rather than finding a violation of Iowa’s open meeting laws, the Court remanded (returned) the case to the district court for a determination of “the nature and extent of the actual authority the supervisors granted [the Administrator] when they intentionally used her to deliberate the reorganization plan outside the public view in an attempt to avoid triggering the open meeting requirements.” On remand, “[i]f the court finds an agency relationship exists and [the Administrator] acted within the scope of her authority in helping the supervisors to deliberate the details of reorganization, it should apply section 21.2(2) . . . to conclude that a violation of the open meetings law occurred.”
The Court cautioned that “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. However, 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.”
In an unusual and seemingly gratuitous suggestion, the Court ordered the district court on remand to “note that the board eventually approved the reorganization plan at an open meeting and should consider whether this subsequent approval complied with the open meetings requirements and cured any violation of the open meetings law.” As the dissent notes, Iowa law has not addressed such a question and directing the district court to consider it adds confusion to an already murky opinion. The Court’s direction in this regard, however, may be seen as a signal that the majority is willing to consider an argument that a violation of Iowa’s open meeting law may be cured by subsequent approval in an opening meeting.
Dissent
In a biting dissent, Justice Waterman (joined by Zager, J. and Mansfield, J.) warns of the chilling effect of the majority’s opinion on well-intentioned governmental officials risking personal liability for violations of Iowa’s open meeting laws. In support, Justice Waterman points to courts in other jurisdictions that identified the practical effect of applying the open meeting laws to nonquorum subgroups. For example, the Nebraska Supreme Court observed the open meetings law
does not require policymakers to remain ignorant of the issues they must decide until the moment the public is invited to comment on a proposed policy. The public would be ill served by restricting policymakers from reflecting and preparing to consider proposals, or from privately suggesting alternatives. By excluding nonquorum subgroups from the definition of a public body, the Legislature has balanced the public’s need to be heard on matters of public policy with a practical accommodation for a public body’s need for information to conduct business.
City of Elkhorn v. City of Omaha, 725 N.W.2d 792, 806 (Neb. 2007). The dissent laments the fact that no amicus briefing was submitted by “the Iowa State Association of Counties, the Iowa League of Cities, the Iowa Association of School Boards, or the executive branch of state government to address the practical problems that may result from the majority’s new interpretation.”
Justice Waterman argues that “the district court’s factual finding that no two supervisors gathered in the same place at the same time to deliberate about the reorganization in private . . . should be dispositive and forestalls the legal conclusion that defendants violated the open meetings law.”
Justice Waterman goes so far as to suggest that the majority opinion implicitly overrules Wedergren v. Board of Directors, 307 N.W.2d 12 (1981), in which the Iowa Supreme Court “squarely rejected the theory that serial meetings or discussions between fewer than a majority of the board can violate the open meeting law.” However, Wedergren involved serial phone calls between individual board members of a five member board. That situation is different that the situation presented in Hutchinson where a three-member board would be in violation any time two members gathered to discuss policy. So it is unclear whether Wedergren was implicitly overruled or whether this argument is a bit of rhetorical hyperbole.
Justice Waterman also identifies a logical conundrum created by the majority opinion. The majority opinion recognizes the general principle that public board members cannot delegate matters of judgment and discretion. As Justice Waterman explains, “[t]he principle that an elected county supervisor cannot delegate matters of judgment precludes the legal conclusion that [the County Administrator], who is not a supervisor, could act as one.”
Justice Waterman’s agency concern dovetails with the distinction made in Justice Mansfield’s separate dissent (joined by Waterman, J. and Zager, J.). Justice Mansfield identifies the crux of the issue as being the scope of the purported agent’s authority. Justice Mansfield argues that the record supports the conclusion that the Administrator had the authority to carry messages; she did not have the authority to make decisions. This distinction, coupled with the argument that the county supervisors could not have delegated the authority for the Administrator to act on the supervisor’s behalf, is likely to be a key fighting point when the case is taken up again in the district court.