Date:
11/19/2020
Subject:
Heather Carlson/Davenport Community School Board - Dismissal Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: Heather Carlson, Complainant And Concerning: Davenport Community School District Board of Directors, Respondent |
Case Number: 20FC:0096
Dismissal Order
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COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order:
On September 18, 2020, Heather Carlson filed formal complaint 20FC:0096, alleging that the Davenport Community School District Board of Directors (Board) violated Iowa Code chapter 21 at a meeting on July 27, 2020.
Ms. Carlson alleged that the Board conducted a closed session by citing Iowa Code section 21.5(1)(a) when the proper section was section 21.5(1)(i). She asked that the IPIB require the Board to provide information concerning the discussion in the closed session.
The agenda for the meeting stated that the closed session was “to review or discuss records which are required or authorized by state or federal law to be kept confidential” pursuant to Iowa Code section 21.5(1)(a). Ms. Carlson alleged that the true purpose of the closed session was to discuss her client, Dan Burlingame, who was being considered for a different position with the school district. She alleged that he should have been given the opportunity to agree or not agree to the closed session, as required by Iowa Code section 21.5(1)(i).
Legal counsel for the Board responded to the complaint on October 5, 2020. In the response, counsel provided information about an earlier meeting on May 26, 2020, during which the plan to hire Mr. Burlingame was removed from the agenda due to an allegation made against him by another employee.
On June 22, 2020, a closed session was held to review the investigative report prepared by a school administrator tasked with investigating the allegation. Because the report contained personal personnel information of the employees involved, the report was considered confidential by the Board pursuant to Iowa Code section 22.7(11). Counsel stated that for this reason, the proper statute to use was 21.5(1)(a), not 21.5(1)(i).
The purpose of the July 27, 2020, closed session was to continue review of the confidential report initially considered at the June 22, 2020, closed session, with an additional investigation by a separate person.
Iowa Code section 21.5(1) lists 12 specific reasons to hold a closed session. Section 21.5(1)(a) allows a closed session to “review or discuss records which are required or authorized by state or federal law to be kept confidential or to be kept confidential as a condition for that governmental body’s possession or continued receipt of federal funds.” (Emphasis added.)
Section 21.5(1)(i) allows a closed session 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.” (Emphasis added.)
Given that the Board was discussing a report concerning more than a single individual’s actions and competency, the use of section 21.5(1)(a) appears more appropriate in this situation. The IPIB has previously advised that records which are discussed and made viewable at a public meeting makes the document a public record in advisory opinion AO 2015-08:
We are of the opinion that a document that is discussed and made viewable to the public at a public meeting makes the document a “public record” that shall not be treated as confidential under Iowa Code section 22.7. We note there are times when a confidential record is discussed or referenced at a public meeting. We do not deem such situations as removing the confidential nature of the record. Rather, this opinion applies solely to situations when the document is also made viewable or accessible to the public at the meeting.
Conducting a closed session to discuss a confidential record is an appropriate way to protect the confidentiality of the record. Therefore, the use of Iowa Code section 21.5(1)(a) in this situation is not a violation of Iowa Code chapter 21.
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 meet those requirements.
IT IS SO ORDERED: Formal complaint 20FC:0096 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 November 17, 2020. 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
1. The June 22, 2020, closed session was the subject of a prior complaint submitted by Ms. Carlson alleging the same violation. That complaint, 20FC:0080, was dismissed by the IPIB on October 15, 2020.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of November, 2020, to:
Heather Carlson
Wendy Meyer, legal counsel for Davenport Community School District Board of Directors