22FC:0110 Travis Winter/City of Clinton Housing Board - Dismissal Order

Date:
11/17/2022

Subject:
Travis Winter/City of Clinton Housing Board - Dismissal Order

Opinion:

The Iowa Public Information Board

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

Travis Winter filed formal complaint 22FC:0110 on October 11, 2022, alleging that the City of Clinton Housing Board (Board) violated Iowa Code chapter 21 on September 14, 2022.  

Mr. Winter alleged: 

“During my appeal hearing the Chairperson Charlene Nicoletto made a motion to take a recess and asked the City Attorney how long to take 10 or 15 min which appears to have been planned. During that time the city attorney Pat J. O'Connell came up to the front of the room and led the board members along with all their notes and paperwork to a back room where the assistant Fire Chief Jeff Chapman joined them. The group came back into the room the Chairperson announced that the board was back from their recess and did not ask any questions from me and took their vote. The Board nor the City Attorney never announced that the group was going into closed session nor did the agenda ever say there was a possibility of them going into closed session. I don't believe there is any audio or video of any of the conversations during their recess-closed session.”

On October 12, 2022, legal counsel for the Board responded informally to the complaint:

I will get together a formal response, but the essential facts are follows:

1. There was no recording. 
2. I, and I alone, decided to speak to the Board, without thinking about the 21.5(1)(c) requirements.
3. They met with me at my request, and likely trusted I knew what I was doing. 

I think there is no question I committed a violation, and should accept responsibility. 

A formal response was provided by legal counsel on October 14, 2022.  This response included an affidavit from the attorney (Exhibit 1) and a copy of the appeal decision issued on September 15, 2022.

The affidavit outlined the events that occurred at the appeal hearing by the Board on September 14, 2022.  Legal counsel accepted full responsibility for the violation.  Immediately after realizing the inappropriateness of his actions, he notified Mr. Winter’s legal counsel and the IPIB.

In his affidavit, legal counsel also explains that all he did was provide his legal advice to the Board after the presentation by Mr. Winter.  He added that the appropriate way to do this would have been to provide a written confidential memorandum to the Board pursuant to Iowa Code section 22.7(4) or to hold a closed session following proper notice and procedures pursuant to Iowa Code section 21.5(1)(c).1

Iowa Code section 21.2(2) defines a meeting:

2. “Meeting” means a gathering in person or by electronic means, formal or informal, of a majority of the members of a governmental body where there is deliberation or action upon any matter within the scope of the governmental body’s policy-making duties. Meetings shall not include a gathering of members of a governmental body for purely ministerial or social purposes when there is no discussion of policy or no intent to avoid the purposes of this chapter.

There is no dispute that the discussion by legal counsel should have been held in open session or in either a closed session or with a confidential written opinion.  Counsel has agreed to arrange a training for the Board.  

Mr. Winter stated in his complaint that he was seeking district court review of this matter and requested the IPIB order attorney fees for his district court action.  The district court can order payment of attorney fees if appropriate in that action.  The IPIB does not have jurisdiction over this issue.

The question in this complaint is whether a governmental body is responsible for a violation created by its legal counsel.  All the information provided by legal counsel to the Board during the recess has been provided to Mr. Winter and his legal counsel.  Whether the Board’s decision was legally accurate is a matter for the district court to determine.  

It would appear that the error by the Board was unintentional and resulted from its reliance on the guidance of legal counsel.  Nothing indicates that the Board’s decision was based upon any evidence not presented in open session or would have been different had the attorney’s advice been presented in open session, by confidential communication, or in closed session.

Iowa Code section 23.8 requires that a complaint be within the IPIB’s jurisdiction, appear legally sufficient, and could have merit before the IPIB accepts a complaint.  This complaint does not meet those requirements.

IT IS SO ORDERED:  Formal complaint 22FC:0110 is dismissed as harmless error 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, 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. Legal counsel contacted the IPIB office on September 27, 2022, to report his violation and copied Mr. Winter’s attorney on that email.

CERTIFICATE OF MAILING

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

Travis Winter

Patrick O’Connell, legal counsel for the City of Clinton Housing Board of Appeals