Date:
01/16/2020
Subject:
Klennert/Orange City City Council - Dismissal Order
Opinion:
The Iowa Public Information Board
|
In re the Matter of: David Klennert, Complainant And Concerning: Orange City, City Council, Respondent |
Case Number: 19FC:0142 Dismissal Order |
COMES NOW Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order.
David Klennert filed formal complaint 19FC:0142 on December 11, 2019, alleging that the City Council for Orange City (Council) violated Iowa Code chapter 21 on two separate occasions.
He alleged that the Council voted to go into closed session at a meeting on October 15, 2019, pursuant to Iowa Code section 21.5(1)(c). He alleged that the city was not in litigation and could not believe litigation was imminent. In addition, he alleged that the Council allowed a future city employee to attend that closed session.
His complaint also alleged that the Council again violated Iowa Code chapter 21 by holding a closed session on October 19, 2019, for the same reason. Again, he alleged that the city misused the meeting with counsel subsection and allowed the same individual to attend the closed session.
The agendas and minutes for both sessions were attached to the complaint and confirmed that the meetings were held, proper votes were taken for each closed session, and no formal action was taken by the Council following each closed session.
Iowa Code section 21.5(1)(c) allows a governmental body to hold a closed session 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.”
Legal counsel for Orange City attended both closed sessions and responded to the complaint on behalf of the Council.
Counsel stated that both special meetings were held due to an event scheduled to be held at the city event center on October 19, 2019. Legal counsel had concerns that the terms of the city Use Policy for the center could lead to litigation by the organizers of the event. Prior to contact with the event organizers, legal counsel wanted to advise the Council of this litigation risk. The first closed session allowed legal counsel to discuss legal strategy that would have disadvantaged the Council in the anticipated litigation if conducted in open session.
On October 17, 2019, city representatives, including legal counsel, met with the organizers of the event, including Mr. Klennert. On October 18, 2019, the organizers filed a request for an injunction in District Court to prohibit the Council from requiring that their event comply with the Use Policy.
The October 18, 2019, Council meeting was initially scheduled for further discussion in closed session on strategy with counsel concerning the same topic as the previous meeting. Instead, the discussion topic was the actual litigation.
The incoming city administrator was invited to attend both closed sessions as he would be the city official primarily involved with the litigation when he began employment on November 15, 2019.
Mr. Klennert stated that the litigation was not “imminent” at the time of the first closed session or when the second closed session was scheduled. However, litigation was filed within three days of the first closed session. That would appear to be imminent.
Iowa Code section 21.5 does not indicate who is allowed to attend a closed session. The IPIB, in Iowa Administrative Rule 497-8.2, states that a governmental body has the discretion to determine whom to invite to attend a closed session. If the reason to hold a closed session is to discuss strategy with legal counsel, legal counsel must attend in person or electronically.
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 19FC:0142 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 January 16, 2020. Pursuant to IPIB rule 497-2.1(4), the parties will be notified in writing of its decision.
By the IPIB Executive Director
_________________________________
Margaret E. Johnson, J.D.
1.Merriam-Webster defines “imminent” as “ready to take place, happening soon.”
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of January, 2020, to:
David Klennert
Brad De Jong, legal counsel for Orange City
Kley De Jong, legal counsel for Orange City