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

Date:
07/21/2022

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

Opinion:

 

The Iowa Public Information Board

In re the Matter of: Jack Swarm, Complainant And Concerning: Mount Pleasant City Council, Respondent

Case Number: 22FC:0011                                                           Revised Dismissal Order

 

COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Revised Dismissal Order:

Jack Swarm filed formal complaint 22FC:0011 on February 28, 2022, alleging that the Mount Pleasant City Council (Council) violated Iowa Code chapter 21 on January 12, 2022.

Mr. Swarm alleged that on January 12, 2022, the Council held a closed session during a public meeting in violation of Iowa Code section 21.5.  He alleged that four of the six council members voted to go into closed session for the purpose outlined on the agenda as  “pursuant to 21.5(1)(c) to discuss strategy with Council 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.”1

Following the closed session, the Council voted in open session to remove an employee from his employment “pursuant to Iowa Code section 372.15.”2

Mr. Swarm stated that the removed employee filed an appeal, resulting in appeal hearings in open meetings on February 9 and February 23, 2022.  The Council voted unanimously to uphold the removal.

Mr. Swarm saw the employee’s termination letter that was dated January 13, 2022, and listed the Mayor, Sheriff, and all Council members as approving the removal.  He alleged that the Council should not have placed the names of the two absent Council members on this letter, as they did not attend the January 12, 2022, meeting.3

Mr. Swarm alleged that it was a violation of Iowa Code section 21.5 to use subsection (1)(c) rather than subsection (1)(i).4

Legal counsel for the Council responded to the complaint on March 14, 2022.  Council stated that she was present by telephone at the January 12, 2022, meeting and that subsection (1)(c) was appropriate.  She stated, “During the meeting, legal counsel for the City provided the City with attorney-client privileged legal advice…” concerning an employee matter that would probably result in litigation.   

Iowa Code section 372.15 provides the process for removing a city employee:

372.15 Removal of appointees. Except as otherwise provided by state or city law, all persons appointed to city office may be removed by the officer or body making the appointment, but every such removal shall be by written order. The order shall give the reasons, be filed in the office of the city clerk, and a copy shall be sent by certified mail to the person removed who, upon request filed with the clerk within thirty days of the date of mailing the copy, shall be granted a public hearing before the council on all issues connected with the removal. The hearing shall be held within thirty days of the date the request is filed, unless the person removed requests a later date.

 

Legal counsel stated that there were various ways to address the issue presented during the closed session.  Citing attorney-client privilege, counsel stated that as the attorney for the Council, it was important that the legal ramifications of all decisions, including litigation, be discussed so that the Council was fully advised prior to making a decision.  She added that the Council has not waived attorney-client privilege.5

In a reply dated March 21, 2022, Mr. Swarm alleged that the closed session resulted in an employee discharge, requiring the use of Iowa Code section 21.5(1)(i).  He provided copies of disciplinary records and media reports in support of his position.

On April 4, 2022, legal counsel responded that until she was able to fully discuss the legal ramifications of various actions that the Council could take, the Council did not know what action would be most appropriate.  

Iowa Code section 21.5(1) lists 12 reasons to allow a closed session.  There are certain situations, such as this one, that could fall within more than one subsection.  The only subsection that specifically provides for the opportunity to discuss the legal ramifications of an action with legal counsel, with the protection of attorney-client privilege, is subsection 21.5(1)(c).  

Given the specific nature of this closed session, it was not a violation of Iowa Code chapter 21 for the Council to meet in closed session for this purpose.  Discussion of the under-lying facts that could result in litigation would have been proper under subsection 21.5(1)(c).

Mr. Swarm requested that IPIB staff review the recording of the closed session to determine whether the discussion was indeed privileged.  Iowa Code section 21.5(5)(b)(1) states that the “detailed minutes and audio recording of a closed session shall be sealed and shall not be public records open to public inspection,” and allows a court to examine the minutes in camera.

The IPIB cannot force a client to waive attorney-client privilege and release a copy of the closed session recording.  IPIB upheld the University of Iowa’s determination that certain attorney-client privileged communications could be withheld from release in formal complaint 20FC:0018, approved by the IPIB on May 21, 2020.  

This dismissal order stated that:

As further noted by the Office of General Counsel, the issue of attorney-client privilege stands on its own outside of Iowa Code chapter 22 and IPIB’s jurisdiction. Sources of this privilege include various sections of the Iowa Code, the Iowa Rules of Professional Conduct, and common law. 

The Iowa Attorney General has also issued a “Sunshine Advisory” which recognizes three types of documents exempt from public examination and copying, one of which are documents covered by attorney-client privilege. 

IPIB has recognized the exemption of attorney-client privileged documents when reviewing public records requests and dismissed past complaints for this reason, citing the aforementioned sources.  UI has not waived privilege; therefore, the emails in question remain confidential under attorney-client privilege.

The Iowa Attorney General issued a Sunshine Advisory that included attorney-client privileged materials as a “‘privilege’ or professional confidence recognized by the courts…”

On June 15, 2022, the Iowa Court of Appeals issued an opinion in Kuehl vs. Tegra Corporation, et. al. (Case No. 21-0416) that upheld a district court ruling concerning communications protected by attorney-client privilege, referring to the language of Iowa Code section 622.10(1):

1. A practicing attorney, counselor, physician, surgeon, physician assistant, advanced registered nurse practitioner, mental health professional, or the stenographer or confidential clerk of any such person, who obtains information by reason of the person’s employment, or a member of the clergy shall not be allowed, in giving testimony, to disclose any confidential communication properly entrusted to the person in the person’s professional capacity, and necessary and proper to enable the person to discharge the functions of the person’s office according to the usual course of practice or discipline.

In addition, the IPIB adopted Iowa Administrative Rule 497-7.11(2)(e) which states:

7.11(2) Confidential records. The following records may be kept 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. 

The Council has not violated Iowa law by withholding communications that are attorney-client privileged.

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 22FC:0012 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 July 21, 2022.  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

1. Two Council members were absent.  Iowa Code section 21.5(1)(c) reads:  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.
2. Item 9h on the agenda, as noted in the minutes of the meeting.
3. Legal counsel for the Council said that because this was an action by the Council, it was appropriate to include all Council members on the Council letter.  This is not a matter addressed by Iowa Code chapters 21 or 22, so this matter is beyond the jurisdiction of the IPIB.
4. Iowa Code section 21.5(1)(i) reads: i. 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.
5. Legal counsel also provided sworn affidavits from the city clerk and city administrator in support of the use of Iowa Code section 21.5(1)(c) and to confirm that attorney-client privilege was not waived.

CERTIFICATE OF MAILING

This document was sent by electronic mail on the ___ day of July, 2022, to:

Jack Swarm

Holly Corkery, legal counsel for Mt. Pleasant City Council