The Iowa Public Information Board
In re the Matter of: Crystl McCall and Adam McCall, Complainants And Concerning: Elk Horn City Council, Respondent | Case Number: 23FC:0103 Dismissal Order
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COMES NOW, Erika Eckley, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order:
On October 23, 2023, Crystl McCall filed formal complaint 23FC:0103, alleging that Elk Horn City Council (“City”) violated Iowa Code chapter 21. On October 27, 2023, Adam McCall supplemented the complaint with additional allegations of violations of Iowa Code Chapter 21. The Complaints are all related to the City’s handling of Mr. McCall’s employment and ultimately termination and are considered together.
Facts
This case arises out of a personal dispute that has snowballed into an issue impacting the operation of City departments and volunteer services. Ms. McCall alleges the City violated Iowa Code Chapter 21 by holding an open meeting before terminating the employment of her husband, Adam McCall, on October 3 despite the expressed desire to consult with their lawyer about the possibility of a closed meeting. She was also unhappy with the investigations the City did or did not do regarding issues raised by she and her husband. Adam McCall alleges that the City committed a violation of Iowa Code Chapter 21 when the confidentiality of a closed meeting by the City on September 18 was violated. He stated that he confirmed the closed meeting would be confidential prior to attending and addressing the City. He alleges that after the meeting, information discussed in the meeting was the topic of questions from residents who were not at the meeting. He also alleges that a temporary policy considered by the City was sent to someone not on the City Council.
In response, the City’s attorney stated that there was a dispute between Ms. McCall and the City’s clerk way that made the operations of the small staff impossible. On September 18, 2023, the City Council held a meeting with staff to discuss these issues. The discussions of the closed session were enacted into policy after returning to open session, and the City’s attorney was instructed to reduce them into a written policy. The attorney stated that the discussion on policy were held in open session. He provided a copy of the memo produced for that purpose that he states does not meet any requirements for confidentiality under Iowa Code 22.7. “While we clearly didn't want people talking about this anymore than they already would, I don't believe we can prevent people from talking about what was approved in an open session; to do so would run afoul of the 1st amendment.”
IPIB can consider only those aspects of the Complaint within the scope of Chapters 21 and 22 and within the jurisdiction of the Board. IPIB staff reviewed the information provided by the McCalls related to the Chapter 21 claim, including a recording of the October 2 City Council meeting, minutes from the City’s previous meetings, and relevant email correspondence.
Closed Meeting September 18
In regards to the allegation that information from the closed session on September 18 was released to individuals outside the City Council, there is no evidence that the information was disclosed. The controversy leading up to the closed meeting appears to have been well-known due to social media postings and general knowledge among community residents. There is no evidence of a violation of Iowa Code Chapter 21. Further, the City Council returned to open session and ultimately approved the City’s attorney documenting the discussed employee policy and to send a cease and desist notice to Ms. McCall.
Closed Meeting October 2
At the October 2 meeting, the City had an agenda item and deliberated on concerns with retaining individuals in the Fire Department and discussed ways to encourage more participation, which was related to the underlying issues of this Complaint. The City also discussed that a number of volunteers had all quit recently due to these issues. Later, the City voted to go in to closed session to discuss employment matters under Iowa Code § 21.5(1)(i).[1] Some unidentified individuals attending the meeting asked if the closed meeting discussion was going to be about Mr. McCall, and if so, they stated that Mr. McCall had requested an open meeting. After some discussion, the City agreed that if Mr. McCall did not request a closed session then the portion about Mr. McCall should not occur in a closed session. An email was provided to IPIB in which Mr. McCall specifically stated he did not want a closed session. Neither of the McCalls attended the meeting.
The City voted to return to open session and discussed Adam McCall’s employment and the impact his continued employment was having on other employees. They also discussed a compromise arrangement that had been attempted but failed. Afterwards, there were additional employment matters in which there was a request by the impacted individual to go into closed session, so the City voted to go into closed session. That was the end of the informal recording provided.
The minutes reflect that when the City returned to open session, the City voted to allow the Mayor to provide Mr. McCall the option to resign in lieu of termination or to be terminated on October 3.
Mr. McCall was terminated on October 3.
Applicable Law
Iowa Code § 21.5(1)(i) provides that a closed session can be held 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.”
Analysis
As stated by someone during the meeting on October 2, “It’s a no-win situation for anyone.”
Mr. McCall raised concerns that information related to the closed session was disclosed to individuals outside the meeting. There is no evidence that information related to the discussion in closed session on September 18 was disclosed. There was discussion and action by the City Council in open session once the City returned to open session. This information would not be confidential as it occurred in open session. Further, the underlying issues appeared to be well-known in the community based on social media posts and other discussions. There appears to have been no violation regarding the September 18 meeting.
Mr. McCall did not attend the City meeting on October 2. The city attorney provided an email in which Mr. McCall specifically requested that his issues not be discussed in a closed session under Iowa Code § 21.5(1)(i) after notice was provided to him about the potential closed session. There were individuals at the meeting who spoke in favor of Mr. McCall during the meeting who made it explicit that Mr. McCall asked for an open meeting to discuss his employment matters.
Under Iowa Code § 21.5(1)(i), a closed session “to discuss the professional competency of an individual whose appointment, hiring, performance, or discharge is being considered” may only be held upon a request from the individual who is the subject of the discussion. The only evidence provided was that Mr. McCall requested that a closed session not occur. The evidence indicates Mr. McCall wanted the discussion to be in open session. The City conducted the discussion in open session. There was no violation of Iowa Code Chapter 21.
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.
There is no evidence that the discussion during a closed session on September 18 was disclosed. Further, the City held an open session on October 2 to evaluate Mr. McCall’s performance. Mr. McCall requested the session be conducted in open session.
IT IS SO ORDERED: Formal complaint 23FC:0103 is dismissed is dismissed as it is legally insufficient 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 review by the board.” The IPIB will review this Order on November 16, 2023. Pursuant to IPIB rule 497-2.1(4), the parties will be notified in writing of its decision.
By the IPIB Executive Director
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Erika Eckley, J.D.
[1] The City mistyped the Code section for the closed session in the minutes. It should state it was Iowa Code § 21.5(1)(i) rather than 21.5(I). The City made clear the purpose of the closed session in the meeting.