23FC:0071: Bradley Wendt, Terra Sell, and Shari Karnes/Adair City Council - Dismissal Order

Date:
10/19/2023

Subject:
Bradley Wendt, Terra Sell, and Shari Karnes/Adair City Council - Dismissal Order

Opinion:

The Iowa Public Information Board

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

On July 12, 2023, Bradley Wendt, Terra Sell, and Shari Karnes (“Complainants”) filed formal complaint 23FC:0071, alleging that the Adair City Council violated Iowa Code chapter 21.

Facts

Complainants allege that during a procedural hearing in federal court regarding criminal allegations involving Mr. Wendt, Adair Mayor Joann Byars admitted she recorded a closed session meeting of the City Council on her personal cell phone, took the recording home with her, and shared it with the public. The closed session occurred December 19, 2022, but the Complainants did not discover the violation until Ms. Byars testified at the court hearing on July 10, 2023.

Ms. Byars admits that she did record the closed session on her personal phone, but denies that she shared the recording with anyone. Her testimony under oath during the Kastigar Hearing in federal court included the following:

A: I believe the recording on my phone is the one from after the indictment.

Q. So that would have been December 19th?

A. I don't know the date. I'm sorry. It would be the one after the indictment.

Q. And did you ever check to see if the recorder -- the official City of Adair recorder did capture that meeting?

A. I did not.

Q. But you tried to use the recorder at that meeting; is that --

A. Yes.

Q. And then in addition to that, you used your personal cell phone?

A. Correct.

Q. Have you ever shared that recording with anyone?

A. No. I've never even listened to it myself.

Q. But you have this second copy of the recording on your cell phone; is that correct?

A. Yes, sir.

Q. Has anyone ever talked to you about that?

A. Like wanted to hear it?

Q. Just have you ever told anyone you had that?

A. Possibly. I don't know.

Q. Have you ever talked to anyone in law enforcement about that?

A. I'm sorry. I don't know.

Q. And is that on your current phone or in the old phone?

A. My old phone.

Q. And was that -- how did you record that? Did you put it on

the table or --

A. Yes.

Q. Okay. So other people saw you were recording it?

A. If they looked, yes. It was on the table.”[1]

At the City Council meeting on July 12, 2023, the Council discussed a complaint filed against Mayor Byars regarding the recording.[2] Under questioning from Mr. Wendt regarding whether Ms. Byars released anything from the closed session to the FBI, Ms. Byars stated that she “mentioned the questions I asked.” [3]

Applicable Law

Iowa Code § 21.5 requires that a “governmental body shall keep detailed minutes of all discussion, persons present, and action occurring at a closed session, and shall also audio record all of the closed session.”

“The detailed minutes and audio recording of a closed session shall be sealed and shall not be public records open to public inspection. . . . A governmental body shall keep the detailed minutes and audio recording of any closed session for a period of at least one year from the date of that meeting, except as otherwise required by law.” Iowa Code § 21.5(b)(1).

Analysis

At the outset, it is important to restate that the Iowa Public Information Board has jurisdiction only over chapters 21 and 22 and public records. IPIB generally has no authority over criminal actions or the investigation of those actions.

In this case, Mayor Byars admits that she recorded the closed session on her personal cell phone, but has testified under oath that she has not listened to the recording or shared it with anyone, including law enforcement. She has also stated that she shared the questions that she asked Mr. Wendt following his indictment during the closed session.

Iowa Code § 21.5(b)(1) requires that all closed session audio recordings and minutes be sealed and not be open to public inspection or become public records.

Recording a closed session on a cell phone in addition to the city’s official recording device is certainly not best practice. Ms. Byars has acknowledged this and it is expected that no one from the city will repeat it. Likewise, sharing portions of the discussion in closed session not directly related to an action being taken in open session is also improper and is not condoned or excused.

This is an unusual case, however, involving a federal criminal investigation into a city employee that hopefully is rarely repeated. There is no evidence that the audio recording itself was made “open to public inspection” or became a public record. Likewise, any information shared, such as Ms. Byars questions, was shared solely with law enforcement and not to the public as part of any public inquiry.

In this situation, based on the information as it is available, Ms. Byars likely exercised poor decision-making in her recording of the closed session and potentially in sharing her questions with law enforcement as it relates to chapter 21.[4] But, Mr. Wendt is ably represented by an attorney who is seeking the full remedies available to Mr. Wendt in his trial for any improper use of any information in any of the closed sessions held by the city. The federal district court judge is receiving full briefing and discovery regarding any legal implications of the use of any information.

Even if a violation potentially occurred under chapter 21[5], the federal district court judge handling the pending criminal matter is better positioned to address any violations regarding the release of information. IPIB should defer any remedial actions to the federal district court process currently underway.

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. Following a review of the allegations on their face, it is found that this complaint does not meet those requirements.

This situation comes to IPIB during an ongoing criminal matter and any remedies regarding the potentially improper use of information from a closed session is better addressed through the federal district court.

IT IS SO ORDERED:  Formal complaint 23FC:0071 is dismissed as it involves harmless error pursuant to Iowa Code § 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 revieFC:0071w by the board.”  The IPIB will review this Order on October 19, 2023.  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] Hearing Transcript, Joanne Byars pages 118, line 19 – page 120, line 1.

[2] This referenced complaint was not the present Complaint because Complaint 23FC:0071 was not sent to the Adair City Council until July 18, 2023, and the Council meeting was July 12, 2023.

[3] July 12, 2023, City Council meeting available at: https://www.facebook.com/1203096825/videos/1032595947910951/

[4] Subpoenas were served on the city and officials and employees. It is beyond IPIB’s scope to determine whether any of the information provided was appropriately part of the law enforcement information requested. IPIB is looking solely at the issue as it relates to chapter 21 and disclosure as a public record.

[5] If anything, it involves harmless error as it relates to chapter 21.