23FC:0118 Leah Schwery/City of Ute Probable Cause Report and Order

The Iowa Public Information Board

COMES NOW, Erika Eckley, Executive Director for the Iowa Public Information Board (IPIB), and submits this probable cause report for formal complaint 23FC:0118. 

Background

On November 9, 2023, the complainant, Leah Schwery, filed formal complaint 23FC:0118, alleging that the City of Ute (“City”) violated Iowa Code chapters 21 and 22. 

The City held a regular council meeting on September 11, 2023. At that meeting, the Council voted to terminate the Complainant from her position as city clerk. The Complainant alleged that this action violated Iowa Code chapters 21 and 22 for the following reasons:

1. The agenda for the meeting did not state that the council would be considering terminating the Complainant, which violated the public notice requirements under Iowa Code section 21.4;
2. The lack of public notice that the council would be considering her termination at the September 11 meeting deprived the Complainant of the opportunity to request a closed session and resulted in the decision to terminate her being made public; and
3. Prior to terminating the Complainant, the City did not notify the Complainant in writing that the information placed in the Complainant’s personnel record as a result of the potential disciplinary action may become a public record, as required under section 22.15.

In support of her allegations, the Complainant provided IPIB staff with a copy of the agenda for the September 11 meeting and the official minutes of the meeting that were published via newspaper. The agenda does not include any item that would indicate that the termination of the Complainant would be deliberated or acted upon at the meeting. The agenda does include an item titled “OLD BUSINESS (for discussion if any updates).”

The meeting minutes indicate that at a previous council meeting held on August 7, 2023, the Council placed the Complainant on a 60-day probationary review period due to unsatisfactory work performance. The Council outlined essential work duties that would be referenced to assess the adequacy of the Complainant’s performance during the probationary period, such as providing the Council with bank and utility reconciliations, paying claims against the City in a timely manner, and submitting notices and other publications to the press. According to the September 11 minutes, the Complainant had failed to perform these duties in the month since the review period began; thus, the Council voted to terminate her at the September 11 meeting. 

The City’s Response

In its response to the complaint, the City stated that it “does not dispute the records and facts provided to the Board by the Complainant.” The City went on to explain that it did not include the agenda item because of previous incidents wherein city clerks “removed or deleted city records while leaving employment.” The City also stated that since the September 11 meeting, the City has taken corrective action by holding a properly noticed special meeting to address the removal of the clerk, providing copies of chapters 21 and 22 to each council member for review, and informing the Council of the training opportunities offered by the League of Cities and IPIB. 

Analysis

Did the agenda provide adequate notice?

Notice of an open meeting must include the tentative agenda of the meeting. Iowa Code § 21.4. The items included on the agenda must be sufficiently detailed to apprise the public of the issues that will be deliberated or acted upon at the meeting. Id.

When the adequacy of notice provided by an agenda item is in dispute, “[t]he issue to be resolved is not whether the notice given by the governmental body could have been improved, but whether the notice sufficiently apprised the public and gave full opportunity for public knowledge and participation.” KCOB/KLVN, Inc. v. Jasper Cnty. Bd. of Sup'rs, 473 N.W.2d 171, 173 (Iowa 1991). “[T]he adequacy of the notice must be determined on the basis of what the words in the agenda would mean to a typical citizen or member of the press who reads it.” Barrett v. Lode, 603 N.W.2d 766 (Iowa 1999). 

In KCOB/KLVN, Inc., the Court determined that an agenda item that contained the employee’s name and the name of the third party retained to handle employee termination proceedings provided sufficient notice that the termination of the employee would be deliberated or acted upon. In making this determination, the Court relied upon the fact that the potential termination of the employee had appeared on prior meeting agendas and had been discussed at previous meetings. Further, the Court found that it was well known in the community that the third party named in the agenda item regularly handled employee termination proceedings. Thus, the Court concluded that, in light of this background information, the agenda item consisting of the employee’s name and the name of the party handling the termination provided sufficient notice to the public that the termination of the employee would be deliberated or acted upon. 

Here, the September 11 agenda made no specific reference to the termination of the city clerk. Nor did it include—in contrast to KCOB/KLVN, Inc.—any agenda items generally referencing the issue (e.g., the Complainant’s name, discussion of the city clerk position, discussion of employment matters, or any other terms that would alert a member of the public that the issue of termination of the city clerk would be discussed).[1] Because the agenda lacked any item that would have apprised a typical citizen or member of the press of the issue to be decided, the agenda did not provide adequate notice, notwithstanding the fact that the Complainant’s work performance had been discussed at the previous meeting. 

The City did not provide adequate notice that the Council would be deciding whether to terminate the Complainant at the September 11 meeting. The agenda contained nothing that would alert a typical citizen or member of the press that the termination would be an item deliberated or acted upon at the meeting. 

IPIB Action

Under Iowa Code section 23.9, once the Board accepts a complaint, IPIB is required to work with the parties to attempt to resolve the complaint informally. The City signed the Informal Resolution on March 6, 2024. Ms. Schwery did not respond to further communications from IPIB on this issue. The City has completed the terms of the agreement as of April 8, 2024, and provided notice to IPIB of completion. At this point in time, the City has done everything requested to resolve the Complaint.

The Board may take the following actions upon receipt of a probable cause report: 

a. Redirect the matter for further investigation;

b. Dismiss the matter for lack of probable cause to believe a violation has occurred;

c. Make a determination that probable cause exists to believe a violation has occurred, but, as an exercise of administrative discretion, dismiss the matter; or

d. Make a determination that probable cause exists to believe a violation has occurred, designate a prosecutor and direct the issuance of a statement of charges to initiate a contested case proceeding.

Iowa Admin. Code r. 497-2.2(4).

Recommendation

It is recommended the Board determine probable cause exists to believe the City violated Iowa Code chapter 21 because the agenda at the September 11 meeting did not provide adequate notice the City would be deliberating and acting on the employment of the clerk. However, the City has taken steps to remediate the alleged violation and further action would yield no further benefit, so it should be dismissed as an exercise of administrative discretion.

By the IPIB Executive Director

_________________________

Erika Eckley, J.D.

ORDER

This matter came before the Iowa Public Information Board (IPIB) on April 18, 2024, to review the Probable Cause Report and enter an Order based upon such review.

The Probable Cause Report recommends that the IPIB determine that probable cause does exist to believe that the City of Ute violated Iowa Code Chapter 21. The Report also recommends that the IPIB dismiss the matter.

Upon review and consideration of the Probable Cause Report, the IPIB enters the following findings and order pursuant to Iowa Administrative Rule 497-2.2(4)(a-d):

________ a. Redirect the matter for further investigation;

________ b. Dismiss the matter for lack of probable cause to believe a violation has occurred;

_x______ c. Make a determination that probable cause exists to believe a violation has occurred, but, as an exercise of administrative discretion, dismiss the matter; or

________ d. Make a determination that probable cause exists to believe a violation has occurred, designate a prosecutor and direct the issuance of a statement of charges to initiate a contested case proceeding.”

By the Board Chair

_________________________

Monica McHugh

[1] The meeting minutes of the September 11 meeting do not indicate that the termination was discussed under the “Old Business” agenda item. However, assuming arguendo that it was, the catch-all “Old Business” agenda item, coupled with the fact that the city clerk was put on probationary review at the previous meeting, still would not have adequately apprised a typical citizen or member of the press that termination of the city clerk would be discussed. This is especially true given that 1) the City does not post past agenda and meeting minutes on its website for later access by the public; and 2) the probationary review period was not set to expire for another month.