22FC:0011 Jack Swarm/Mt. Pleasant City Council - Investigative Report and Probable Cause Order

Date:
05/15/2025

Subject: 
Jack Swarm/Mt. Pleasant City Council  - Investigative Report and Probable Cause Order

Opinion:

The Iowa Public Information Board

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

On March 1, 2022, Jack Swarm filed formal complaint 22FC:0011, alleging Mt. Pleasant City Council (Council) violated Iowa Code chapter 21. IPIB originally dismissed the complaint on July 21, 2022. Swarm appealed IPIB’s dismissal under Iowa Code chapter 17A. On November 30, 2024, the Iowa District Court in and for Henry County issued a ruling finding IPIB should have accepted Swarm’s complaint.

The IPIB accepted this Complaint on February 20, 2025. The parties discussed informal resolution, but an agreement could not be reached. The Council passed a resolution adopting a closed meeting checklist to be used before any closed sessions held by the Council in the future. The Council also held an IPIB training on April 29, 2025 in a properly noticed and open meeting.

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 February 9 and February 23, 2022. The Council unanimously upheld the removal. 

In response, legal counsel for the Council stated 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). The Council has not waived attorney-client privilege regarding these communications with legal counsel. The Council relied on legal advice regarding the appropriateness of the closed session.

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 laid out the facts within the stipulated record and 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

“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:

…

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.” Iowa Code § 21.5(1)(c).

Analysis

In its November 30, 2024, opinion, the District Court found important the following facts:

• At the time of the January 12, 2022, council meeting there was no present litigation.
• At the time of the employee’s due process hearing, he had a representative with him, but no attorney.
• The employee signed his Garrity warning, which gave him notice he could have an attorney present.
• The employee exercised his rights to an appeal of the employment decision under Iowa Code § 372.15, but he was not represented by counsel at the appeal and had not threatened “any legal action” beyond the appeal of the Council’s decision.

As the District Court correctly noted, there is no appellate case defining what is “imminent” under Iowa Code chapter 21. The District Court was concerned there were no facts establishing litigation was imminent in this situation. The District Court discounted the employee’s formal appeal of the City’s employment decision pursuant to Iowa Code § 372.15 as not indicative of imminent litigation. The District Court also found important to the review that the employee did not have an attorney appear with him during any of the formal proceedings leading up to or after the discharge.

The Council argued they needed to receive attorney-client communications to understand the legal ramifications of their decision before determining how to proceed. The only provision allowing a government body to receive attorney-client communications is Iowa Code § 21.5(1)(c). It does not seem illogical to consider the government body’s decision in the closed session would impact whether litigation might become imminent.[1] The District Court never considered the fact the decision being made from the discussion in closed session could cause litigation to occur or make it imminent. The Council argued this should also be part of the inquiry rather than penalizing the government body for trying to prevent prejudicing its position in the litigation the employee may or may not choose to undertake based on the Council’s decision.[2]

Unresolved in the District Court’s order is whether the legislature intended the phrase “litigation” to be narrowly construed to mean only the process of filing an action within the judicial system or whether litigation was intended to include any legal dispute impacting the government body. It seems implicit in the District Court’s decision that the District Court interpreted litigation to mean only a lawsuit filed in district court. The District Court placed significant emphasis on the fact that no attorney made an appearance for the employee as proof that litigation was not imminent. The District Court, however, failed to notice that nothing requires an attorney to file a complaint with IPIB nor is an attorney required to file a lawsuit.[3]

Certainly, the legislature did not intend the term “litigation” to apply only to a formal lawsuit filed by an attorney in civil court. If it did, then government bodies would be incapable of receiving legal advice within a closed session for any administrative actions or complaints even though the government body would still be facing legal jeopardy. For instance, under a narrow interpretation of “litigation” no government body could confer with legal counsel about complaints submitted against them under IPIB’s process. If all legal discussions are required to be conducted within open session until litigation has actually been filed or there is concrete proof a petition has been drafted and will be filed within days, then government bodies would be precluded from receiving important attorney-client privileged advice. A savvy potential litigant could drag their feet to preclude the government body from going into closed session and listen to the discussion in open session. The inability to receive attorney-client advice under these facts would certainly “be likely to prejudice or disadvantage the position of the governmental body” because the “litigation” was not “imminent” enough. 

Reviewing this complaint three years later, the only legal action generated from the Council’s action was the employee’s formal appeal of the discharge and this complaint regarding the use of Iowa Code § 21.5(1)(c) rather than Iowa Code § 21.5(1)(i) to hold a closed closed session in which it was determined an employee would be discharged. 

Based on the District Court’s determination that IPIB’s previous dismissal of this complaint as legally insufficient was not based on substantial evidence under the stipulated record, it is likely there is probable cause to believe a violation occurred utilizing the District Court’s analysis of whether litigation, as defined by the court, was imminent.

IPIB Action

The Board may take the following actions upon receipt of an investigative report: 

a. Redirect the matter for further investigation;

b. Dismiss the matter for lack of probable cause to believe a violation has occurred;

c. Make a determination that probable cause exists to believe a violation has occurred, but, as an exercise of administrative discretion, dismiss the matter; or

d. Make a determination that probable cause exists to believe a violation has occurred, designate a prosecutor and direct the issuance of a statement of charges to initiate a contested case proceeding.

Iowa Admin. Code r. 497-2.2(4).

Recommendation

Because no “litigation” was “imminent” at the time the Council held a closed session on January 12, 2022, as interpreted by the District Court decision, it could be found that probable cause exists to believe a violation has occurred. Since then, however, the Council has taken steps to address this potential violation. The Council conducted training by IPIB on April 29, 2025, and has passed a resolution adopting a checklist to avoid violations of closed sessions in the future. Based on these remedial actions to address the violation, it is recommended IPIB make a determination that probable cause exists to believe a violation has occurred, but, as an exercise of administrative discretion, dismiss the matter.

By the IPIB Executive Director

_________________________

Erika Eckley, J.D.

[1] For instance, if the government body decided litigation was too high a risk to take after speaking with legal counsel, then making a decision to avoid litigation would seem to be prudent, but then would almost certainly expose them to a chapter 21 violation because no litigation occurred. It seems an impossible catch-22 for the government body.

[2] In Samuel R. Willson v. Louisa County Board of Supervisors, CVEQ003360 (Jan. 10, 2025) (“once the BOS voted to remove Willson from the LCCB, Willson was given the opportunity to appeal the BOS decision and chose to request further hearing, litigation would have been imminent”)

[3] See, e.g. Iowa R. Civ. Pro. 1.423 rules on limited representation; Representing Yourself- Overview from the Iowa Supreme Court website available at https://www.iowacourts.gov/for-the-public/representing-yourself (providing conduct and procedure rules to know prior to appearing in court pro se).

Under Iowa Admin. Code r. 497-2.2(4) the Board takes the following action: 

• a. Redirect the matter for further investigation;
• b. Dismiss the matter for lack of probable cause to believe a violation has occurred;
• c. Make a determination that probable cause exists to believe a violation has occurred, but, as an exercise of administrative discretion, dismiss the matter; or
• d. Make a determination that probable cause exists to believe a violation has occurred, designate a prosecutor and direct the issuance of a statement of charges to initiate a contested case proceeding.

By the Board Chair

___________________________________

Monica McHugh