23FC:0107; 23FC:0109; 23FC:0112; 23FC:0113; 23FC:0121 Dana Sanders, Valerie Close, Lu Karr, Molly Rach, and Alex Carros/Benton County Board of Supervisors - Probable Cause Report

Date:
07/18/2024

Subject:
Dana Sanders, Valerie Close, Lu Karr, Molly Rach, and Alex Carros/Benton County Board of Supervisors - Probable Cause Report

Opinion:

The Iowa Public Information Board

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

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, the Complaints were Consolidated.

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, which was settled. As part of the settlement agreement, Complaints 23FC:0101; 23FC:0102; and 23FC:0110 were dismissed. The IPIB also dismissed Complaint 23FC:0108 in its acceptance order on January 18, 2024, because the requested documents had already been provided to the Complainant by the Board. Some allegations within the remaining complaints were also dismissed as outlined in the Acceptance Order.

The remaining Complaints are the following:

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

Complaint 23FC:0121- Complainant alleges 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. 

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

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). 

Closed Session October 3, 2023 for two Attorney-Client Discussions pursuant
to Iowa Code § 21.5(1)(c)
(Case No. 23FC:0113)

Complaint: 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.

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.

IPIB Analysis

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.” 

The Board should amend the minutes to accurately reflect the vote that was taken to enter the closed session. The recording of the open meeting portion shows the vote was unanimous to go into the first closed session. There is no video for the second closed session. Previously, the Iowa Court has found there is harmless error in this omission in the minutes,[1]but the Board should consider ensuring the actions of the Board are accurately documented.

Complaints 23FC:0111 and 23FC:0113 were accepted for additional investigation. Aside from the need to revise the minutes, there is nothing to indicate the use of the closed session to discuss strategy with counsel in matters that are presently in litigation or where litigation is imminent was improper. Lawsuits in the district court and complaints with IPIB were filed shortly after this meeting, so it is not unreasonable the Board believed litigation was likely or imminent at the time they utilized the closed session. In addition, the county attorney attended the closed sessions.

Closed Session October 31, 2023 for Evaluation of Sue Wilber, HR Director

(Case Nos. 23FC:0107; 23FC:0109; 23FC:0112)

Complaints 23FC:0107, 23FC:0109, 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.

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.”

IPIB Analysis

Complainants allege the Board did not have the authority to ask the Auditor to leave the closed session. In response, the Board states 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 in Benton County, the auditor was asked to leave after the vote in open session 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 an attorney general opinion 1992 Iowa Op. Atty. Gen. 179 (Iowa A.G.), 1992 WL 470382.

IPIB has advised that “Iowa Code section 21.5 is silent as to who may be invited to attend a closed session, [IPIB is] of the opinion that it is at the discretion of the governing body as to who it may invite to attend. … This Board lacks the authority to read into the statute a laundry list of who can be invited to attend a closed session and who cannot.  Such a determination would require an amendment to the statute by the legislative branch or an interpretation of the statute by the judicial branch.” 15AO:0003: Are There Limits on Who May Attend Closed Session?

The violation alleged by all of the Complaints was solely based on the supervisors’ actions in asking the auditor to leave the closed session. There is currently litigation[2] between the auditor and the Board to gain access to the closed session recording (in addition to other issues), so any further review by IPIB on this matter would be imprudent. The district court is better positioned to provide guidance as to the auditor’s right to obtain the confidential recording and the contents of the recording based on her position as auditor and whether she could attend the closed session.

Attempts to Resolve the Complaints and Board Actions
Following the Board’s Acceptance of the complaints on January 18, 2023, IPIB met with the Complainants and the Board’s attorney. Three meetings were held to try to come to agreement on a resolution. The parties ultimately did not reach agreement on the terms presented by IPIB staff and the Complainants stated they would not agree to the Informal Resolution terms.[3]

The Board did accept the terms and approved the Informal Resolution at its meeting on April 16, 2024. The terms of the Informal Resolution required the following:

1. The Board acknowledges sufficient evidence exists regarding the closed sessions and failure to follow specific procedures for closed sessions presented in these complaints that a violation of chapter 21 could potentially be found in a contested case proceeding.
2. The Board will provide a transparent timeline of events and actions that occurred during or as a result of the closed sessions at issue. This timeline will include full transparency of any non-confidential facts or matters and will be provided to all parties and retain status as a public document.
3. The Board will work with counsel to develop a checklist for all procedural requirements in holding a closed session and the limitations of deliberation within a closed session to avoid any deficiencies in the future.
4. The Board acknowledges that under Iowa Code § 21.6(3) continued violations of Iowa’s Open Meetings Law can result in fines assessed to individual members of the Board, in addition to removal from office.
5. The Board and other county officials and staff will participate in training on Iowa Code chapters 21 and 22 in an open meeting. The IPIB will conduct the training and all elected officials from Benton County will attend. The heads of boards and commissions within the county will be invited. 
6. The Council will approve this resolution during an open meeting and include the full text in the minutes of the meeting.  A copy of the minutes will be provided to the IPIB.

IPIB staff conducted training in Benton County on May 29, 2024.[4]

A timeline regarding the Board of Health matter was completed and provided to the parties on June 27, 2024.

Recommendation

Based on investigation of the complaint, I recommend that the Board determine probable cause exists to believe the Benton County Board of Supervisors violated Iowa Code chapter 22 during the closed session on September 26, 2023, but that complaint and the others be dismissed as a matter of administrative discretion based on the following. 

• The members of the Board of Health filed a separate lawsuit regarding the closed sessions and their impact on them. That lawsuit has already been settled.
• The Iowa Supreme Court has determined there was substantial compliance under similar circumstances as the Board’s failure to include the votes on the minutes for the closed sessions on October 3, 2023.[5] (The Board is encouraged to consider remedying the omission in the minutes, regardless.)
• In regards to the closed session on October 31, 2023, there is active litigation between the auditor and the Board, in part to decide whether she had a right to attend because she is the auditor. IPIB cannot find a violation for asking the auditor to leave the closed session, guidance from IPIB states that the Board can choose who attends a closed session, the court did not find a similar violation in the KCOB/KLVN case, and final resolution of the matter is likely outside IPIB’s jurisdiction under Iowa Code chapter 21.
• The Board has adopted the terms of the Informal Resolution as outlined by IPIB staff to resolve and remediate the complaints raised. 

By the IPIB Executive Director

_________________________

Erika Eckley, J.D.

[1] See KCOB/KLVN, Inc. v. Jasper Cnty. Bd. of Sup'rs, 473 N.W.2d 171, 176 (Iowa 1991) (finding substantial compliance when the deputy auditor was asked to leave, so no votes were recorded regarding closed session).

[2] 06061 CVCV010799, Rippel v Benton County Bd. Of Sup’rs, et al.

[3] An area of contention was the Complainants wanted the confidential closed session records to be released. The records, however, are not public records. “The detailed minutes and audio recording of a closed session shall be sealed and shall not be public records open to public inspection.” Iowa Code 21.5(5)(b)(1); see also Telegraph Herald, Inc. v. City of Dubuque, 297 N.W.2d 529, 535 (Iowa 1980) (holding legislature weighed against public exposure of closed session recordings as a sanction).

[4] https://www.bentoncountyia.gov/files/meetings/2024-05-29_agenda_board_of_supervisors_78155.pdf

[5] See KCOB/KLVN, Inc., 473 N.W.2d at 176.