24FC:0054: Samuel Kleiss/Hudson City Council - Dismissal Order

Date:
08/15/2024

Subject:
Samuel Kleiss/Hudson City Council - 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:

On June 17, 2024, Mr. Kleiss filed formal complaint 24FC:0054, alleging the Hudson City Council (“City”) violated Iowa Code Chapter 21.

Facts

Mr. Kleiss’ complaint alleges the City violated Iowa Code Chapter 21 by holding a closed session without proper justification. Mr. Kleiss states as follows:

“The meeting included closed conversation about an ongoing vicious dog issue. We have implored the council members to discuss. We were aware they planned to discuss it at the June 10th meeting. The last item on the agenda was “Closed Session” and we knew the vicious dogs were likely to be discussed at that time. They cited Chapter 21.5(C), alleging that there is current or imminent litigation regarding the matter. We attended and asked that they keep it open, citing the intent of Chapter 21 and reminding them that “when there is ambiguity in the application, it should be resolved in favor of openness.” They chose to close it without any discussion. We do not believe this to have been a proper use of Chapter 21 and have no reason to believe there is any current or imminent litigation. We have never threatened litigation. We are happy to provide all pertinent email communication. We have no reason to believe that there is any credible “imminent litigation” from the other involved parties.”

The Attorney for the City of Hudson responded to this Complaint and maintained the closed session was justified pursuant to Iowa Code Chapter 21.

Applicable Law

Iowa Code § 21.5 provides a closed session may be held by a government body to the extent a closed session is necessary pursuant to a list of exceptions. Iowa Code § 21.5 (1)(c) states legal discussion of strategy with counsel is a clear exception:

 “To discuss strategy with counsel in matters that are presently in litigation or where litigation is imminent where disclosure would be likely to prejudice or disadvantage the position of the governmental body in that litigation.” Iowa Code § 21.5(1)(c).

Iowa Code § 21.5(2) goes on to state that a reason for holding a closed session must be provided with reference to a specific exemption under the section and that the exemption shall be announced publicly at the open session and entered into the minutes.  

Analysis

Mr. Kleiss alleges the City failed to comply with Chapter 21 requirements by holding a closed session without a proper justification. Mr. Kleiss further alleges there was no reason to believe a possibility of current or imminent litigation existed when the City held the closed session.

The City’s attorney explained the City is currently researching a request by Mr. Kleiss to take further action regarding dogs within the community. This action would require the City to litigate a case under a different section of city code. The attorney stated she needed to meet with the Council to discuss the litigation research and provide a legal analysis of whether litigation would be successful under the different section of city code. She shared that having this discussion in open session would have allowed potential litigants to have an advantage regarding the litigation and potential litigants would have access to potential risks, evidentiary matters, and strategy. Holding a closed session between the Council and attorney for this purpose is an appropriate use of Iowa Code § 21.5(1)(c).

In addition the City included the appropriate reference to a closed session in the agenda and minutes. Both documents contained a clear justification for a closed session that was consistent with the use of the closed session.

There is no evidence of a violation of Chapter 21 related to use of the closed session. 

Conclusion

Iowa Code § 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 does not meet those requirements.

The City appropriately used a closed session to discuss strategy with counsel regarding litigation utilizing a different section of the city code to address vicious dogs in the community. The City followed appropriate process and procedures. There is no violation of Iowa Code § 21.5.

IT IS SO ORDERED:  Formal complaint 24FC:0054 is dismissed 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), 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 August 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.