23FC:0118 - Schwery/City of Ute - 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: 

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. 

Background

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 had omitted 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. 

Other alleged violations

The Complainant also alleges that the lack of notice on the agenda deprived her of the opportunity to request a closed session, resulting in the decision to terminate her being made public in the newspaper. 

While the lack of notice that the Council would be considering her termination may have deprived the Complainant of the opportunity to request a closed session, a government body is never required to hold a closed session for any reason. Iowa Code 21.5(6) (“Nothing in this section requires a governmental body to hold a closed session to discuss or act upon any matter.”). Furthermore, even if a closed session were held to discuss the Complainant’s potential termination, the actual vote to terminate her would have occurred in open session. Therefore, her termination would have been made public in the meeting minutes, regardless. 

The Complainant’s final allegation is that the City failed to provide the notice required under section 22.15. That code section is copied below:

A government body that takes disciplinary action against an employee that may result in information described in section 22.7, subsection 11, paragraph “a”, subparagraph (5), being placed in the employee's personnel record, prior to taking such disciplinary action, shall notify the employee in writing that the information placed in the employee's personnel record as a result of the disciplinary action may become a public record.

Iowa Code § 22.15. Under section 22.7(11)(a)(5), documentation of the fact that a government employee “resigned in lieu of termination, was discharged, or was demoted as the result of a disciplinary action, and the documented reasons and rationale for the resignation in lieu of termination, the discharge, or the demotion” is a public record and is not confidential, despite being a part of the employee’s personnel record. 

In its response to the complaint, the City stated “[i]t does not appear from the City’s records that a notice fitting the description of Iowa Code § 22.15 was provided to the Complainant.” The City also acknowledged that such notice should have been provided to the Complainant.

Conclusion

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. Further, the City stated in its response that it omitted the agenda item to prevent the Complainant from receiving notice that her potential termination would be a topic of discussion at the meeting. 

The City also admitted that it violated section 22.15 by failing to provide the Complainant the notice required under that section prior to her discharge. For these reasons, the complaint should be accepted. 

Iowa Code section 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 meets those requirements.

IT IS SO ORDERED: Formal complaint 23FC:0118 is accepted 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), IPIB may “delegate acceptance or dismissal of a complaint to the executive director, subject to review by the board.”  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 12, 2024, to:
Leah Schwery
John Hines, Ute City Attorney

[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.