23FC:0101; 23FC:0102; 23FC:0107; 23FC:0108; 23FC:0109; 23FC:0110; 23FC:0111; 23FC:0112; 23FC:0113; 23FC:0121 - Braxton Morrison et al./Benton County - Acceptance Order

The Iowa Public Information Board

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

Between, October 22 and November 20, 2023, Braxton Morrison, Maggie Mangold, Dana Sanders, Kurt Karr, Valerie Close, Kaitlin Emrich, Lu Karr, Molly Rach, and Alex Carros filed formal complaints, alleging that Benton County Board of Supervisors (Board) violated Iowa Code chapters 21 and 22.

All of the Complaints allege issues arising from or during Board meetings that occurred September 26 through November 8, 2023. In addition, the allegations within the ten complaints are intermingled and overlapping. Due to the number of Complaints, as well as, the common Respondent and circumstances, it is recommended that the Complaints be Consolidated.

Additional Procedural Information

Shortly after filing Complaints 23FC:0101; 23FC:0102; and 23FC:0110, Complainants also filed a lawsuit in district court based on the same allegations and facts. Despite the provisions within Iowa Code § 23.5 on the election of remedies regarding complaints under Iowa Code chapters 21 and 22 as well as the requirement to stay proceedings in the district court to allow for resolution by IPIB if separate parties file in both IPIB and the district court, the parties did not seek a stay of district court proceedings and ultimately approved a settlement agreement regarding the matter. As a courtesy, this present matter was paused while the settlement was being effectuated. The settlement between those parties has now been ratified and was provided to IPIB as part of its review. The settlement agreement is a public record and is attached to this Complaint.

As part of the settlement agreement, Complaints 23FC:0101; 23FC:0102; and 23FC:0110 are to be dismissed upon receipt of attorney fees and other costs to the plaintiffs. Additionally, the Board agreed to undergo annual training on Iowa Code chapters 21 and 22. Pursuant to the settlement agreement, however, the Board denies and continues to deny any violation of Iowa Code chapters 21 or 22, so full review by IPIB of these claims for the remaining Complainants who have been patiently waiting, is appropriate at this time. 

Closed Session September 26, 2023 for Evaluation of Barb Greenlee
(Case No. 23FC:0101; 23FC:0102; 23FC:0121)

Complaints 23FC:0101, 23FC:0102, and 23FC:0121- Complainants allege discussions by the Board regarding termination of the entire Board of Health began on September 26th, 2023, when the Board of Supervisors entered a closed session with Barb Greenlee, a half-time Board of Health employee, the Benton County Auditor Hayley Rippel, and the Human Resources Director Sue Wilber. The closed session was entered into without citing a reason on the agenda or in the motion, as they are required to do pursuant to Iowa Code 21.5(2). The YouTube video was also not restarted after the minutes from the 26th state the Supervisors exited the closed session.

During the closed session, the Board decided to fire all five Board of Health members. The minutes reflect that after exiting the closed session at 10:47 a.m., the Board voted “To take action as discussed in closed session.” No further details are provided.

None of the Board of Health members, much less members of the public, were made aware that the Board of Supervisors was considering this action. Thus, none of the Board of Health members could have requested or did request that the performance evaluation take place in closed session, which is required by Iowa Code § 21.5(1)(i). They were notified by letter of their termination after the Board of Supervisors meeting.

No other exception to the Open Meetings Law, aside from § 21.5(1)(i), was given for the Supervisors’ closed session and no other exception would be valid.

Board Response: Brent Hinders, attorney for the Board responded to the Complaints. The publicly stated reason that was given for the closed session involved: (1) The evaluation of the professional competency of an individual public employee, (2) the consideration of the appointment, hiring, performance, or discharge of that individual, (3) if conducted in an open meeting this discussion would have caused needless and irreparable injury to that person’s reputation, and (4) this individual public employee requested that the board go into closed session to evaluate their professional competency and performance pursuant to the statute in question and to IPIB guidance on the subject. See IPIB Advisory Opinion 14FO:0002, Feb. 20, 2014. 

Published Agenda item No. 13, posted Minutes, and YouTube recording of the meeting demonstrate otherwise.  The public was properly notified of the closed session by the 13th item listed on the Agenda that was published before the Board Meeting and stated: 10:00 A.M. Sue Wilber Re: Closed Session pursuant to Iowa Code 21.5(1)i. To evaluate the professional competence 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.

This closed session was announced publicly during open session and is confirmed by the September 26, 2023, YouTube video of the Board of Supervisors meeting before the Board moves to go into closed session. 

If the above-cited Agenda Item No. 13 was in reference to the five members of the Benton County Board of Health, then Complainants would be correct in stating that those employees would have had to request the closed session for it to be lawful. However, the closed session was held to evaluate a completely different public employee. Thus, the complaint is without merit and the minutes and audio recordings of the closed session should remain sealed to prevent needless and irreparable injury to a public employee.

IPIB Analysis

Per the settlement agreement, Complaints 23FC:0101 and 23FC:0102 will be dismissed.

IPIB Staff reviewed the Board’s Agendas, Minutes, and YouTube videos related to these Complaints as well as any additional recordings or relevant documents for each Complaint.

On September 26, 2023, all three members of the Board voted to hold a closed session under Iowa Code § 21.5(1)(i) to evaluate the professional competence 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. The individual who requested the closed session was Ms. Greenlee.

Iowa Code § 21.5(1)(i) allows for a closed session to evaluate Ms. Greenlee’s professional competence when necessary to prevent needless and irreparable injury to that individual’s reputation Iowa Code § 21.5(2), however, mandates that a “governmental body shall not discuss any business during a closed session which does not directly relate to the specific reason announced as justification for the closed session.”

IPIB Staff was provided a copy of the confidential, closed session recording of September 29, 2023. After reviewing the audio of the closed session, the conversation that occurred within the closed session likely exceeded the scope of the stated purpose of the closed session in potential violation of Iowa Code § 21.5(2). 

Complaint 23FC:0121 regarding this meeting should be ACCEPTED. Complaints 23FC:0101 and 23FC:0102 are DISMISSED as agreed by the parties.

Closed Session October 3, 2023 for two Attorney-Client Discussions pursuant to Iowa Code § 21.5(1)(c)
(Case Nos. 23FC:0101; 23FC:0102; 23FC:0111; 23FC:0113)

Complaints: 23FC:0101, 23FC:0102, 23FC:0111, 23FC:0113 Complainants allege on October 3rd, the agenda for the meeting included two separate closed sessions the first requested by Sue Wilber, and the second requested by Ray Lough. The YouTube video does not get restarted for the remainder of the Supervisor's meeting on October 3rd, but the minutes reflect that the first closed session was exited, and the Human Resources director was “granted the authority to act on matters discussed in closed session...” A second closed session was then entered into that, again, is not publicly available.

At the November 2 BOS meeting, County Attorney Ray Lough indicated the vote to terminate the Benton County Board of Health (BOH) was taken at the October 3 meeting. Members of the Board of Health had no knowledge of any pending or imminent litigation, or any potential cause for such and were unaware the Board was considering their terminations. The board of health had not pursued any legal action against the county at that point.  One Complaint stated, “I do not believe the cause for entering closed session was truthful, and the vote to terminate the board was inappropriately held in closed session.” This board continually uses closed meeting sessions as a way of avoiding transparency. Since July 1, 2023 this board has gone into closed session at least 16 times.

Board Response: The Board of Supervisors held the closed session in question using Iowa Code Section 21.5(1)(c) “[t]o 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 Section 21.5(1)(c). County Attorney Ray Lough was present during both of the closed sessions on October 3, 2023, as required by statute, and can attest that Counsel discussed matters that are presently in litigation or where litigation was imminent, and that disclosure would be likely to prejudice or disadvantage the position of the Benton County Board of Supervisors in that litigation.

The Complainant is not entitled to notice of closed sessions between counsel and the governmental body regarding present or imminent litigation beyond that of the notice given to the public given via the agenda that was published prior to the October 3, 2023, meeting that informed the public of the closed session. 

IPIB Analysis: 

Per the settlement agreement, Complaints 23FC:0101 and 23FC:0102 will be dismissed.

According to the minutes, Supervisor Bierschenk moved and Supervisor Primmer seconded to enter a closed session to discuss strategy with counsel at 10:16 a.m. The actual vote of all members to enter the closed session was not included in the minutes. This session was ended by affirmative vote of the Board at 11:15 a.m. The Board voted to “To act on matters proposed with Human Resources Director in closed session and to grant authority to Sue Wilber to implement that with appropriate timeline.”

According to the minutes Supervisor Primmer moved and Supervisor Bierschenk seconded to enter another closed session to discuss strategy with counsel at 11:18 a.m. Again, the actual vote of all members was not included in the minutes. This session was ended by affirmative vote of the Board at some point in time. The minutes do not indicate the time. No action was taken by the Board following the second closed session.

In responding to the Complaint, an affidavit was provided by Hayley Rippel attesting that for the first closed session on October 3, the locking mechanism on the flash drive was on and the closed session was not recorded, but Ms. Rippel states she took extensive notes of the session. No additional information was provided.

Because this Complaint involved closed sessions for the purpose of engaging in attorney-client privileged communications and the Board has not waived the privilege, no recordings or notes were provided to IPIB. The minutes, however, twice fail to include the vote of all members as required by Iowa Code 21.5(2) who voted to enter the closed sessions: “The vote of each member on the question of holding the closed session and the reason for holding the closed session by reference to a specific exemption under this section shall be announced publicly at the open session and entered in the minutes.” 

To allow for additional investigation, Complaints 23FC:0111, and 23FC:0113 regarding this meeting should be ACCEPTED. Complaints 23FC:0101 and 23FC:0102 are DISMISSED as agreed by the parties.

Closed Session October 31, 2023 for Evaluation of Sue Wilber, HR Director
(Case Nos. 23FC:0107; 23FC:0109; 23FC:0110; 23FC:0112)

Complaints 23FC:0107, 23FC:0109, 23FC:0110, 23FC:0112: The Board of Supervisors went into a closed meeting to discuss an evaluation of Sue Wilber the HR Director. The Board dismissed the Auditor during the closed session and had Ms. Wilber take minutes and record the meeting. This is against Iowa law. 

Board Response: Complainant alleges potential violations of Iowa law related to the County Auditor not being present during a closed session. However, the Iowa Public Information Board is specifically set up to secure compliance with and enforcement of the requirements of Chapters 21 and 22 through the provision by the Iowa public information board to all interested parties of an efficient, informal, and cost-effective process for resolving disputes. Iowa Code Section 23.1. Furthermore, IPIB’s jurisdiction is limited to the application of Iowa Code chapters 21, 22, and 23, and rules in Iowa Administrative Code chapter 497. Thus, the Board will not address those allegations in this response.

IPIB Analysis

Complaint 23FC:0110 will be dismissed as per the settlement agreement.

On October 31, 2023, the Board voted to hold a closed session under Iowa Code § 21.5(1)(i) to evaluate the professional competence 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. 

The minutes indicate Sue Wilber requested the board go into closed session to do her employee evaluation. Supervisor Primmer directed Auditor Rippel to also exit the room for this portion of the meeting.   Supervisor Primmer moved and Bierschenk seconded: “To enter into closed session pursuant to Iowa Code 21.5(1)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. Motion carried at 10:05 a.m.”  Primmer moved and Bierschenk seconded: “To exit closed session at 11:00 a.m. Motion carried.”

Complainants allege that the Board did not have the authority to ask the Auditor to leave the closed session. In response, the Board states that this issue is beyond the jurisdiction of the IPIB. In KCOB/KLVN, Inc. v. Jasper Cnty. Bd. of Sup'rs, 473 N.W.2d 171, 176 (Iowa 1991), the Iowa Supreme Court found there was substantial compliance by the Board when they asked the deputy auditor, the secretary of the meeting to leave before the closed session, so no minutes of the vote or the reason for the closed session were taken. In this situation, the auditor was asked to leave after the vote was taken. The court in KCOB/KLVN did not specifically address whether asking the auditor to leave the closed session was a violation under Iowa Code Chapter 331 as opined by attorney general opinion 1992 Iowa Op. Atty. Gen. 179 (Iowa A.G.), 1992 WL 470382.

The minutes of this meeting, however, fail to include the vote of all members to enter into closed session as required by Iowa Code 21.5(2): “The vote of each member on the question of holding the closed session and the reason for holding the closed session by reference to a specific exemption under this section shall be announced publicly at the open session and entered in the minutes.”

In addition, IPIB Staff was provided a copy of the confidential, closed session recording of October 31, 2023. After reviewing the audio of the closed session, the conversation that occurred within the closed session likely exceeded the scope of the stated purpose of the closed session in potential violation of Iowa Code § 21.5(2).

For these reasons, Complaints 23FC:0107, 23FC:0109, and 23FC:0112 regarding this meeting should be ACCEPTED. Complaint 23FC:0110 is DISMISSED as agreed by the parties.

Failure to Provide “Draft” Document Handed to Board during Open Meeting on October 31, 2023
(Case Nos. 23FC:0108; 23FC:0110; 23FC:0113)

Complaints 23FC:0108, 23FC:0110, 23FC:0113 allege an unsigned contract between Virginia Gay Hospital and the Board was presented in open meeting for consideration of the Board. There was an item on the agenda to discuss/approve the agreement. The public asked to view the contract, but the Board stated it was advised by the county attorney that the document was a draft and not available for the public to obtain.

Board Response: Regarding the contract mentioned in the complaint, IPIB has already established that this is indeed a public record, and a copy of the final draft of the contract as well as the draft presented to the Board at the October 31, 2023, meeting has been provided with the response.

IPIB Analysis

Per the settlement agreement, Complaint 23FC:0110 will be dismissed.

On October 31, 2023, the Benton County Board of Supervisors were provided a “draft” contract to review during the designated portion of the Board’s agenda. Video of the meeting showed the contract being handed to the Board, and Supervisors can be seen sitting and reading the document for a period of time in the open session. The minutes indicate the following: “Sue Wilber spoke up for Ray Lough, County Attorney who wasn’t able to attend today’s meeting. Wilber provided a rough draft of a contract with Virginia Gay Hospital to the board regarding Public Health Services. The Board has scheduled a future meeting for Thursday so that they have more time to look this over and have VGH representation present. When asked if the public could see the proposed agreement, Supervisor Primmer said it is not signed, therefore it is not available to the public. No action was taken.”

IPIB Staff contacted the county attorney, counsel for the Board, following one of the complaints filed after members of the public were denied copies of the document when requested. The County Attorney did provide copies of the contract as a public record. In addition, a copy of the contract was provided in response to these Complaints. Because the document has been provided, any delay in providing the record was reasonable or simply harmless error.

For these reasons, Complaints 23FC:0108, 23FC:0110, and 23FC:0113 regarding this document should be DISMISSED.

Questions Regarding Settlement
(Case No. 23FC:0107)

Complaint 23FC:0107 alleges the Board refused to answer questions regarding a harassment case that was recently settled.

Board Response: Complainant’s allegation is that the Board violated open records or open meetings laws because they would not answer verbal questions related to a settlement of a lawsuit by stating “they said it is inappropriate to ask questions of the harassment case they recently had to settle.” While final binding written settlement agreements and/or a summary thereof that resolve legal disputes are public records pursuant to Iowa Code Section 22.13 and may be disseminated to the public, members of a government body that have knowledge of such a legal dispute are not required to discuss confidential or privileged information that pertains to the dispute. Doing so could compromise privileged information or conversations pursuant to Iowa Code Section 622.10 as well as privileged information or discussions that occurred during a closed session under Iowa Code Section 21.5(1)(c). See Iowa Code Sections 22.5(1)(c), 22.13, and 622.10.

IPIB Analysis

Because this Complaint is requesting answers to questions and not copies of records, the IPIB does not have jurisdiction over the complaint as required by Iowa Code section 23.1.  See 19FC:0002 Don Burgmaier/Iowa Department of Human Services - Dismissal Order

Complaint 23FC:0107 regarding the failure to answer questions regarding a settlement should be DISMISSED.

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 complaints 23FC:0107, 23FC:0109, 23FC:0111, 23FC:0112, 23FC:0113 and 23FC:0121 are accepted pursuant to Iowa Code § 23.8(1) and Iowa Administrative Rule 497-2.1(2)(a). 

Formal complaint 23FC:0108 is dismissed because the documents have been provided.

Formal complaints 23FC:0101, 23FC:0102, and 23FC:0110 are dismissed per the settlement agreement by the parties.

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 15, 2024.  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.

CERTIFICATE OF MAILING

This document was sent on February 7, 2024, to:
Brent Hinders, attorney for Benton County Board of Supervisors
Braxton Morrison, Maggie Mangold, Dana Sanders, Kurt Karr, Valerie Close, Kaitlin Emrich, Lu Karr, Molly Rach, and Alex Carros, Complainants