22FC:0011 Jack Swarm/Mount Pleasant City Council - Acceptance Order

Date:
02/20/2025

Subject: 
Jack Swarm/Mount Pleasant City Council - Acceptance Order

Opinion:

The Iowa Public Information Board

COMES NOW, Erika Eckley, Executive Director for the Iowa Public Information Board (IPIB), and enters this Acceptance Order: 

On February 28, 2022, Jack Swarm filed formal complaint 22FC:0011, alleging the Mount Pleasant City Council (Council) violated Iowa Code chapter 21.

Facts

Jack Swarm alleges the Council improperly held a closed session on January 12, 2022, in violation of Iowa Code § 21.5 when it went into closed session pursuant to Iowa Code § 21.5(1)(c) to discuss strategy with Council in regards to a personnel matter. Swarm argues because an employee was discharged following the closed session the Council could only have utilized Iowa Code § 21.5(1)(i), which 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.

Four of six Council members voted to go into closed session under Iowa Code § 21.5(1)(c). Following the closed session, the Council took action in open session to remove an employee pursuant to Iowa Code § 372.15. The employee filed an appeal. Hearings on the appeal were held on February9 and February 23, 2022. The Council unanimously upheld the removal. 

In response, legal counsel for the Council stated that attorney-client privileged legal advice was provided to the Council during the closed session. Until the Council understood the legal ramifications of various actions the Council could take, the Council did not know what action would be most appropriate. The only appropriate provision by which a government body can receive attorney-client privileged advice in closed session is Iowa Code § 21.5(1)(c). Council has not waived attorney-client privilege regarding these communications with legal counsel.

Swarm appealed IPIB’s July 21, 2022, dismissal of Complaint 22FC:0011 under Iowa Code chapter 17A.

On January 25, 2024, the Iowa District Court in and for Henry County heard arguments on this matter. The Court also considered the stipulated record from IPIB’s consideration of the complaint. In its order on November 30, 2024, the Court held, “IPIB not accepting the complaint was unreasonable ‘in the face of evidence as to which there is no room for difference of opinion among reasonable minds’ and that the board declining the complaint as legally insufficient was not based on substantial evidence. Greenwood Manor v. Iowa Dept. of Public Health, 641 N.W.2d 823, 831 (Iowa 2002).” “The IPIB should have accepted the complaint based upon the facts and law.”

Applicable Law

“Upon receipt of a complaint alleging a violation of chapter 21 or 22, the board shall do either of the following: Determine that, on its face, the complaint is within the board’s jurisdiction, appears legally sufficient, and could have merit. In such a case the board shall accept the complaint, and shall notify the parties of that fact in writing.” Iowa Code § 23.8(1).

“After accepting a complaint, the board shall promptly work with the parties, through employees of the board, to reach an informal, expeditious resolution of the complaint.” Iowa Code § 23.9.

Analysis

The District Court directed “pursuant to Iowa Code section 23.8(1), the IPIB shall notify the parties in writing that the complaint is accepted, and pursuant to Iowa Code section 23.9 ‘shall promptly work with the parties ... to reach an informal, expeditious resolution of the complaint.’ Iowa Code §§ 23.8(1) & 23.9; Klein v. Iowa Public Information Board, 968 N.W.2d at 229.”

Swarm’s complaint 22FC:0011 is accepted to address the matter of a closed session held on January 12, 2022 pursuant to Iowa Code § 21.5(1)(c).[1]

Conclusion

Iowa Code § 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 meets the necessary requirements for acceptance.

IT IS SO ORDERED:  Formal complaint 22FC:0011 is accepted pursuant to Iowa Code § 23.8(1) and Iowa Administrative Rule 497-2.1(2)(a). 

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 February 20, 2025.  Pursuant to IPIB rule 497-2.1(4), the parties will be notified in writing of its decision.

By the IPIB Executive Director

Erika Eckley, J.D.

[1] A governmental body may hold a closed session only by affirmative public vote of either two-thirds of the members of the body or all of the members present at the meeting. A governmental body may hold a closed session only to the extent a closed session is necessary for any of the following reasons: …

c. 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.