Advisory Opinion 24AO:0006
DATE: June 27, 2024
SUBJECT: Chapter 21 – Recent Law Changes
This Advisory Opinion provides information regarding recent amendments to Chapter 21 to ensure public awareness of and compliance with the changes.
During the 2024 legislative session, the Iowa Legislature passed Senate File 2385, an Act relating to boards, commissions, committees, councils, and other entities of state government that was more than 200 pages. This legislation was signed into law by Governor Kim Reynolds on May 17, 2024.
Division VII was included within Senate File 2385. (“Amendments”) It amends Chapter 21 of the Iowa Code as it relates to electronic meetings and requires options for electronic meetings for all governmental bodies. The Amendments also define the types of electronic meetings that can be utilized by all governmental bodies. This law takes effect on July 1, 2024.
We note at the outset that the IPIB’s jurisdiction is limited to the application of Iowa Code chapters 21, 22 and 23, as well as rules in Iowa Administrative Code chapter 497. Advice in a Board opinion, if followed, constitutes a defense to a subsequent complaint based on the same facts and circumstances.
This advisory opinion is provided to assist governmental bodies regarding application of and compliance with the new Amendments.
CHAPTER 21 AMENDMENTS:
The following Amendments have been made to Chapter 21. Governmental bodies conducting public meetings must comply with these changes effective July 1, 2024:
Amendments to section 21.8, subsection 1: The Amendments mandate that, “A governmental body shall provide for hybrid meetings, teleconference participation, virtual meetings, remote participation, and other hybrid options for the members of the governmental body to participate in official meetings.” This law change requires that governmental bodies provide for electronic meetings for members of the governmental body and establishes options to be utilized. These options are defined in the new subsection 4 of section 21.8, below.
Amendments to section 21.8, subsection 1, paragraph c: The Amendments eliminate the requirement that minutes include a statement explaining why a meeting in person was impossible or impracticable.
New subsection 4 to section 21.8: This new subsection creates definitions for the following types of meetings:
- “Hybrid meeting” means a meeting involving both remote participation and in-person participation by members.
- “Remote participation” means real-time participation by a remotely located individual in a meeting which is being held in a different physical location using integrated audio, video, and other digital tools.
- “Teleconference participation” means participation using audio conference tools involving multiple participants in at least two separate locations.
- “Virtual meeting” means a meeting involving real-time interaction using integrated audio, video, and other digital tools, in which participants do not share physical location.
Governmental bodies should carefully review these definitions and the requirements for each type of meeting.
Is a governmental body required to provide electronic access to meetings for members of the governmental body pursuant to the new law?
Yes. Effective July 1, 2024, Iowa Code § 21.8 requires that a governmental body provide for electronic meeting options for members of the governmental body. The new law states, “A governmental body shall provide for hybrid meetings, teleconference participation, virtual meetings, remote participation, and other hybrid options for the members of the governmental body to participate in official meetings.” The use of the word “shall” requires that electronic meetings, in at least one of the forms identified by the new law, be made available to members of the governmental bodies.
Is a governmental body required to provide electronic meeting options if none have been requested or it is believed none will be utilized?
The language is mandatory that the option be provided for official meetings of the governmental body. A governmental body, therefore, must make an electronic meeting option available for participation of the members of the governmental body. The law does not use the terminology “may” and does not distinguish between governmental bodies that will and will not utilize an electronic meeting for participation. For this reason, governmental bodies should provide an electronic meeting option for all meetings.
Is a governmental body required to provide all electronic meeting options?
No. A governmental body is not required to utilize all options for every meeting. The amended language includes a variety of options and defines what could be considered an electronic meeting. Several of the types of meetings would be contradictory.
For instance, a “hybrid meeting” involves both remote and in-person participation by members of the governmental body, but a “virtual meeting” involves members that do not share a physical location. By definition, it would be impossible to use all available options for each meeting of the governmental body because a governmental body could not hold a “hybrid meeting” and a “virtual meeting” at the same time.
The governmental body should choose the electronic meeting option that best meets the needs of the members of the governmental body. For example, if all members of the governmental body will be participating from differing remote locations, and the governmental body has the technical ability, the governmental body should consider holding a virtual meeting. If some members of the governmental body will be in-person and others will be attending from alternative locations, the governmental body should consider holding a hybrid meeting or teleconference participation.
The governmental body should utilize the electronic meeting method(s) that allows for participation of members of the governmental body while also ensuring the meeting meets Iowa Code chapter 21 requirements.
Are there new requirements for governmental bodies related to quorum and voting that must be observed when meeting electronically?
No. The Amendments do not change quorum or voting requirements. Members of governmental bodies should be allowed to vote electronically utilizing the electronic method chosen by the governmental body. A member of a governmental body participating in an electronic meeting and following existing requirements of Iowa Code chapter 21 should be considered in attendance and counted toward quorum.
What are the requirements for public participation in an electronic meeting pursuant to the new law?
The new law does not change existing requirements as it relates to public access to the meeting and compliance with public notice requirements. Iowa Code § 21.8(a) still requires “The governmental body provides public access to the conversation of the meeting to the extent reasonably possible.” The law also does not change requirements that minutes be produced, but does eliminate the requirement that minutes include a statement as to why a meeting in person was impossible or impracticable. Governmental bodies should continue to adhere to public participation and notice requirements within Iowa Code Chapter 21.
Must the general public be granted access to the electronic meeting options. For example, if a member of the governmental body uses remote participation, must the public be granted the same remote participation options?
A cornerstone of Chapter 21 is that members of the public must have access to open sessions of meetings of governmental bodies. “Open session” is defined as a meeting to which all members of the public have access. Iowa Code § 21.2(3). Chapter 21 does not provide a definition of public access or provide specific detail on how the public must access open sessions.
Governmental bodies should carefully consider public access to meetings depending on the electronic meeting method utilized. For example, governmental bodies utilizing the “hybrid meeting” should allow public access at the in-person location and should also consider allowing an option for the public to listen remotely. Governmental bodies may consider providing live-streaming options to allow the public to observe hybrid or virtual meetings. If governmental bodies provide teleconference options for the members of the governmental body, consideration should be given as to whether the teleconference will be provided as an option for the public to utilize or whether the members participating through the teleconference will be placed on speaker for the public to hear at the in-person location.
A related question involves “remote participation.” Remote participation may represent that a singular member of the governmental body is participating from a remote location or could include a situation in which a specialist presenter appears remotely. This has prompted the question of whether the public must be provided remote participation if a member of the governmental body or a presenter appears in such a manner. Iowa Code § 21.8 requires only that the members of the governmental body be given electronic meeting access. The law differentiates the type of access granted to the public by stating that the governmental body provide “public access to the conversation of the meeting to the extent reasonably possible.” Iowa Code § 21.8(1)(a) (emphasis added). The law does not specifically require that the public be given a virtual platform to make public comment or otherwise participate. Governmental bodies should determine how to accommodate public participation based on the unique circumstances of each case and the scope of the electronic method used within the requirements of Iowa Code Chapter 21.[1]
The amendments do not change how access to the public is provided. It is the responsibility of the governmental body to comply with public access requirements pursuant to Iowa Code § 21.8. Governmental bodies should carefully consider the electronic meeting approach utilized and the best methods to ensure public access to open sessions of meetings.
How should notice of the meeting with electronic participation options be handled?
Iowa Code § 21.4 requires that a governmental body give notice of the tentative agenda, the time, date, and place of each meeting. Iowa Code § 21.8(b) states that for notice requirements “the place of the meeting is the place from which the communication originates or where public access is provided to the conversation.” If the governmental body will be holding a “hybrid meeting,” then the public should be notified where the in-person meeting will occur. If a live-streaming, teleconference, or other electronic option will be provided to the public, that should also be included within the notice of the meeting. If a “virtual meeting” is being held, then the public should be given notice of the electronic or telephonic location in which the public can watch and/or participate in the meeting.
If a “virtual meeting” is scheduled, must a governmental body provide an in-person location for the public?
Nothing within the new Iowa Code § 21.8 language requires a governmental body include an in-person option for the public. In fact, the amended language allows the governmental body to provide the option of a “virtual meeting” to its members in which participants do not share physical location. The amended language also eliminated the need for the governmental body to have a specific reason why it could not meet in person. It would be impractical if the governmental body members could meet virtually, but would still be required to host an in-person location for the public to watch the “virtual meeting.” So long as notice of how to watch and/or participate in the virtual meeting is provided to the public as required under Iowa Code §§ 21.4 and 21.8, there is no requirement an in-person option be provided to the public when a virtual meeting is held.
BY DIRECTION AND VOTE OF THE BOARD:
Joan Corbin
E.J. Giovannetti
Barry Lindahl
Luke Martz
Joel McCrea
Monica McHugh
Jackie Schmillen
SUBMITTED BY:
Kimberly Murphy, J.D.
Legal Staff
Iowa Public Information Board
ISSUED ON:
June 27, 2024
Pursuant to Iowa Administrative Rule 497-1.3(3), a person who has received a board opinion may, within 30 days after the issuance of the opinion, request modification or reconsideration of the opinion. A request for modification or reconsideration shall be deemed denied unless the board acts upon the request within 60 days of receipt of the request. The IPIB may take up modification or reconsideration of an advisory opinion on its own motion within 30 days after the issuance of an opinion.
Pursuant to Iowa Administrative Rule 497-1.3(5), a person who has received a board opinion or advice may petition for a declaratory order pursuant to Iowa Code section 17A.9. The IPIB may refuse to issue a declaratory order to a person who has previously received a board opinion on the same question, unless the requestor demonstrates a significant change in circumstances from those in the board opinion.
[1]When balancing the interests of public participation, governmental bodies should consider Iowa Code § 21.7. “Nothing in this chapter shall prevent a governmental body from making and enforcing reasonable rules for the conduct of its meetings to assure those meetings are orderly, and free from interference or interruption by spectators.” Iowa Code § 21.7. While several electronic options are convenient for the public, disruptions to meetings of governmental bodies can occur over electronic platforms and can interfere with the ability of members of the public to participate and observe governmental meetings. This can be a consideration in determining whether and how to grant participation by electronic access while ensuring the security and conduct at the public meeting can be maintained. See, e.g. “Zoom call organized by Black Iowa lawmakers reportedly interrupted by racist incident”, WHO News, January 8, 2022; “‘Zoom bombings’ disrupt Iowa Senate meetings with profanity, pornography and racial slurs”, The Des Moines Register, February 14, 2023.