24FC:0034 Keegan Jarvis/City of Swan - Dismissal Order

Date:
07/18/2024

Subject:
Keegan Jarvis/City of Swan - Dismissal Order

Opinion:

The Iowa Public Information Board

COMES NOW, Erika Eckley, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order.

Facts

Keegan Jarvis filed formal complaint 24FC:0034 on April 9, 2024, alleging the Swan City Council (“Council”) violated Iowa Code chapter 21 on April 9, 2024.

Mr. Jarvis alleges the Council improperly entered into and conducted a closed session at its April 9, 2024, meeting.

Mr. Jarvis alleges the Council’s meeting agenda included a potential closed session. He alleges there was no roll call vote taken for the closed session, but there was a regular vote taken for the three council members. In addition, he alleges each member of the Council did not explicitly state their reasoning for going into closed session. 

Mr. Jarvis also alleges a former council person and a councilwoman’s baby remained after the public was asked to leave for the closed session. He alleges the former council person dropped off some papers, and only left “because I was video recording him.” He alleges he heard the Council was off topic during the closed session and spoke about him. He alleges a councilwoman’s husband entered the closed session at one point to get the baby. He alleges he observed Council members tending to and playing with the baby intermittently. He stated the Council’s attorney was present for the closed session.

Nicholas Bailey, attorney for the City, provided the response. He provided some background information regarding the matter with Mr. Jarvis. Mr. Bailey had met personally with Mr. Jarvis and his counsel earlier that day on April 9, 2024, in his Altoona office. He stated, “A discussion was held regarding the nuisance action against Mr. Jarvis's property and possible resolutions and compromises that Jarvis and his attorney suggested. Jarvis' counsel, with Mr. Jarvis present, and myself present as well, discussed the closed session to be held that evening to discuss Jarvis' proposals, the potential need for hearing, and so the City Attorney could confidentially discuss the options with the City Council. Jarvis' counsel, Peter Sand, specifically stated he understood the need for a closed session and that they would not stand in the way of having such a session.”

Mr. Bailey stated the Council meeting was properly noticed and held as an open meeting pursuant to Iowa Code Chapter 21. One of the agenda items included a closed session pursuant to Iowa Code Section 21.5(1)(c) to discuss matters with the attorney presently in litigation or where litigation was imminent. Specifically, the Council and attorney were discussing the nuisance action initiated against property held by Mr. Jarvis. 

He stated the published agenda complied with chapter 21 and listed the reason for the closed session. When the closed session came up, one of the council members made a motion to go into closed session and specifically read the exact language from Iowa Code § 21.5(1)(c). Another council member seconded that motion. Each individual council member then voted to go into closed session. All members of the public were asked to leave for the closed session. One member of the public lingered and did not leave immediately, but no discussion was held at that time. The mayor and attorney asked the individual to leave so the closed session could be called to order. The only parties in the closed session were the three council members, the mayor, the city attorney, and the councilwoman’s infant. 

The closed session included a discussion on the nuisance action regarding Mr. Jarvis's property.  No other discussions were held. No action was taken during the closed session. All three council members voted to adjourn the closed session and go back into open session. Members of the public were invited back into the town hall for the remaining open session. No further votes were taken. 

Mr. Bailey informed the members of the Council and the public that Mr. Jarvis had requested a hearing on the declaration and notice of his property as a nuisance pursuant to the City Code and a hearing needed to be set. Hearing was set on the nuisance matter for April 18, 2024, and the meeting was adjourned.

Mr. Bailey stated the Council followed the appropriate process and procedures for holding its closed session on April 9, 2024.  The proper code section and reason for the closed session was listed on the meeting agenda. The proper code section and reason for the closed session was publicly stated by the Council when it moved to go into closed session by a unanimous vote of the council.  No actions were taken in the closed session. 

Iowa Law

“To 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 § 21.5(1)(c).

“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. 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.” Iowa Code § 21.5(2).

Analysis

The Council held a closed session on Iowa Code § 21.5(1)(c). The agenda included notice of the closed session and the reason for it. The city attorney participated in the closed session. The minutes reflect the reason for the closed session was provided and all council members voted for it.

The public was asked to leave the building so a closed session could occur. One individual did not immediately leave, but he did leave before the closed session started. There is no violation in waiting to start the closed session until the public had left the room.

The only member of the public that did not leave for the closed session was a council woman’s infant. The purpose of this closed session was to allow for an attorney-client privileged conversation to occur. An infant present during this conversation is not likely to cause a waiver of this privilege. It is unlikely the infant understands the conversation or would have the capability of disclosing any of the confidential conversation rendering the confidentiality of the session broken. Further, requiring a council woman’s infant child to leave a closed session could just as likely unreasonably hinder the council woman’s ability to participate in the session herself. No facts have been presented showing allowing the infant remain in the room during a closed would be a violation of Iowa law.  

Because the Council followed the process for holding a closed session, including appropriate notice and procedures, there is no violation of Iowa Code chapter 21.

Conclusion

Iowa Code section 23.8 requires that a complaint be within the IPIB’s jurisdiction, appear legally sufficient, and could have merit before the IPIB accepts a complaint.  This complaint does not meet those requirements. 

The Council followed required processes for the closed session. The Council waited for the public to leave before beginning the closed session. Allowing a council woman’s infant to remain in the closed session does not impact the confidentiality of the session or the discussion.

IT IS SO ORDERED:  Formal complaint 24FC:0034 is dismissed as not being legally sufficient pursuant to Iowa Code section 23.8(2) and Iowa Administrative Rule 497-2.1(2)(b).  The Council did not violate the open meeting code section.

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 July 18, 2024.  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.