Date:
05/16/2019
Subject:
Jeena Lynch/City of Independance City Council - Revised Dismissal Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: Jeena Lynch, Complainant And Concerning: City of Independence City Council, Respondent |
Case Number: 18FC:0119
Revised Dismissal Order
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COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Revised Dismissal Order:
On December 13, 2018, Jeena Lynch filed formal complaint 18FC:0119 against the City of Independence (City). She alleged that the City council violated Iowa Code chapter 21 on two separate occasions:
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On October 22, 2018, the City conducted a closed session without proper notice.
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On December 22, 2018, the City conducted an additional closed session without proper notice.
On both dates, Ms. Lynch alleges that the City discussed her professional competency without allowing her the opportunity to request the closed session.
Counsel for the City responded to both allegations. The October 22, 2018, closed session was noticed on the agenda as conducted pursuant to Iowa Code section 21.5(1)(c), to discuss potential litigation with counsel. The minutes for that meeting also note this. There are no irregularities noted in either the agenda or the minutes. No action was taken following the closed session.
There was no council meeting on December 22, 2018, which was a Saturday. This complaint was filed prior to the date of this alleged violation.
Holly Corkery, counsel for the City, filed a sworn affidavit with IPIB staff (Exhibit A). The affidavit stated that she was present as legal counsel to advise the City at the closed session on October 22, 2018. The purpose of the closed session was to discuss an investigation she undertook concerning a harassment complaint and to advise the City on the possibility of litigation. Although personal employee information was obtained as part of her investigation, it was not a discussion of the “professional competency of an individual whose appointment, hiring, performance, or discharge is being considered” as required by Iowa Code section 21.5(1)(i).
This Order was initially discussed at an IPIB meeting on February 21, 2019. Questions arose concerning whether IPIB staff could interview various council members outside the presence of legal counsel.
Iowa Rule 32:4.2 governs the ethics of communicating with people represented by counsel. This rule prohibits a lawyer from communicating “about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”
Because of the nature of the closed session, a discussion of strategy with legal counsel when disclosure of such discussion would prejudice or disadvantage the legal position of the City in litigation, legal counsel responded that consent would not be granted.
In an additional effort to provide information without jeopardizing the City’s strategy, legal counsel provided an affidavit from the City Manager. This affidavit (Exhibit B) supports the affidavit provided by legal counsel (Exhibit A).
In the IPIB administrative rules, chapter 7 was adopted to comply with Iowa Code section 22.11, the Iowa Fair Information Practices Act. Rule 497-7.11(2)(e) states that the following record may be withheld from release as confidential:
e. Records which constitute attorney work product, or attorney-client communications, or which are otherwise privileged. Attorney work product is confidential under Iowa Code sections 22.7(4), 622.10 and 622.11, Iowa Rule of Civil Procedure 1.503(3), Federal Rule of Civil Procedure 26(b)(3), and case law. Attorney-client communications are confidential under Iowa Code sections 622.10 and 622.11, the rules of evidence, the Code of Professional Responsibility and case law.
An affidavit issued under the penalty of perjury should be viewed as evidence of substantial weight.
Ms. Lynch requested that IPIB review of this Order be delayed until the May 2019 IPIB meeting. This delay was approved. Parties were instructed to submit any additional comments on the complaint by May 6, 2019. No additional information or comments were submitted.
There is insufficient evidence to substantiate the claim made by Ms. Lynch that her professional competency was the subject matter of the closed session.
There is insufficient evidence to support the allegations made in the complaint that the October 22, 2018, closed session was conducted in violation of Iowa Code chapter 21. There is no evidence that a meeting occurred on December 22, 2018.
Iowa Code section 23.8 requires that a complaint be within the IPIB’s jurisdiction, appear legally sufficient, and have merit before the IPIB accepts a complaint. This complaint does not fulfill those requirements.
IT IS SO ORDERED: Formal complaint 18FC:0119 is dismissed as legally insufficient pursuant to Iowa Code section 23.8(2) and Iowa Administrative Rule 497-2.1(2)(b).
Pursuant to Iowa Administrative Rule 497-2.1(3), the IPIB may “delegate acceptance or dismissal of a complaint to the executive director, subject to review by the board.” The IPIB will review this Order on May 16, 2019. Pursuant to IPIB rule 497-2.1(4), the parties will be notified in writing of its decision.
By the IPIB Executive Director
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Margaret E. Johnson, J.D.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of May, 2019, to:
Jeena Lynch
Emily Ellingson, legal counsel
Holly Corkery