Rick Morain is the former publisher and owner of the Jefferson Herald, for which he writes a regular column.
A recent Iowa Court of Appeals decision could substantially change how Iowa’s local government bodies—including county supervisors, city councils, and school boards—conduct meetings.
The decision centers on the legitimacy of closed sessions by those public bodies. The law at issue is Iowa Code Section 21.5(1)(i), part of the state’s open meetings law. Section 21.5 contains a list of conditions that permit closed meetings. The exemption at the heart of this case reads as follows:
To evaluate the professional competency of an individual whose appointment, hiring, performance, or discharge is being considered when necessary to prevent needless and irreparable injury to that individual’s reputation and that individual requests a closed session.
The second condition, “that individual requests a closed session,” is never a factor in a public body’s decision to close a meeting. The individual either requests that a meeting be closed or does not. Period. It’s the first condition, “when necessary to prevent needless and irreparable injury to that individual’s reputation,” that governed the appeals court’s decision in this case.
Cedar Rapids resident Bob Teig filed suit after the Cedar Rapids City Council closed a meeting in April 2021 in order to consider an applicant for the position of city clerk. His lawsuit argued that the city council did not establish that the applicant’s reputation would sustain “needless and irreparable injury” if council members held the evaluation in open session.
The district court which first heard the case dismissed the lawsuit. The appeals court, however, reversed part of the district court decision, agreeing with the plaintiff that the city council had not taken the required steps to justify a closed session.
In my experience, how the Cedar Rapids City Council handled the matter is customary for the vast majority of Iowa’s local public bodies. That’s certainly the case in Greene County. In more than five decades of covering local government meetings here, I can’t recall a single instance when a public body denied a closed session to an individual “whose appointment, hiring, performance, or discharged is being considered,” if the individual asked for it.
That may be a function of my memory, which of late has been leaking. But I don’t think so. Certainly in the last few years, no such denial of a closed session sticks in my memory bank. On the contrary, closed meetings are standard when the individual requests one, including for regularly scheduled evaluations of employees’ performances. In some cases the public board or council announces in advance its intention to close a meeting for evaluation of a specific employee. The danger to the employee’s reputation is never cited.
The chances that such employees have committed acts that would cause irreparable damage to their reputations if the evaluations were held in open session are infinitesimally small.
Note that the law doesn’t say “needless or irreparable injury.” The wording is “needless and irreparable injury.” And it doesn’t allow closing a meeting when an open session might cause such an injury. The public body must determine that the harm to the individual’s reputation will result.
The problem for the local government body is obvious. In order to meet the requirements of Section 21.5(1)(i), the board or council must be aware of potential reputational damage before going into closed session. But if such potential is stated publicly by the government body, then the damage to the reputation takes place.
In its ruling on Teig’s lawsuit against the Cedar Rapids council members, the Iowa Court of Appeals lays out a solution for that problem. Once the government body goes into closed session, it “must conduct further inquiry into the necessity of the closed session to ensure that the closed session complies with the statute.” If no relevant information is discovered about potential damage to the individual’s reputation, then the board or council must return to open session to conduct the evaluation.
The Cedar Rapids City Council may ask the Iowa Supreme Court to review the appeals court’s ruling. It’s not yet known whether the council will seek further review. And the Iowa legislature might tweak the law to change the requirement about reputational damage.
Also worth noting: decisions of Iowa district and appeals courts are not binding unless the Iowa Supreme Court affirms them.
But in the meantime, local government bodies across Iowa need to rethink how they conduct performance and hiring evaluations going forward. It would be a major change for the state’s school boards, boards of supervisors, and city councils.
Top photo of Cedar Rapids city hall in 2022 is by WeaponizingArchitecture, available via Wikimedia Commons.