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21AO:0007

Date: 
Thursday, October 21, 2021
Subject: 
Closed Session Requirements
Ruling: 

 

Advisory Opinion 21AO:0007

DATE: October 21, 2021

SUBJECT: Closed Session Requirements

RULING:

Elizabeth D. Jacobi
City of Cedar Rapids
101 First Street SE
Cedar Rapids, IA 52401

Sent via email to e.jacobi@cedar-rapids.org    

Ms. Jacobi,

We are writing in response to your request dated August 23, 2021, requesting an advisory opinion from the Iowa Public Information Board (IPIB) pursuant to Iowa Code chapter 23 and Iowa Administrative Code rule 497-1.3.

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 an IPIB opinion, if followed, constitutes a defense to a subsequent complaint based on the same facts and circumstances.

BACKGROUND:

The issue at hand concerns whether Iowa Code section 21.5(1)(i) requires a governmental body to make an express finding that a closed session is necessary to prevent needless and irreparable injury to the reputation of the individual requesting the closed session.  The question involves a situation where an individual makes a written request to a governmental body to go into a closed session to evaluate that individual’s professional competency for purposes of considering the possible appointment, hiring, performance, or discharge of that particular individual.

QUESTION POSED:

Does Iowa Code chapter 21 require a governmental body to make an express finding that a closed session is necessary to prevent needless and irreparable injury to the reputation of the individual requesting the closed session?

OPINION:

Under Iowa Code section 21.5(1), a governmental body may hold a closed session only to the extent a closed session is necessary and by affirmative public vote by either two-thirds of the members of the body or all of the members present at the meeting.  Iowa Code section 21.5(1)(i) allows a governmental body to hold a closed session as follows:

To evaluate the professional competency of an individual whose appointment, hiring, performance, or discharge is being considered when necessary to prevent needless and irreparable injury to that individual’s reputation and that individual requests a closed session.

The language of Iowa Code section 21.5(1)(i) does not state that an express finding is required for the governmental body to enter a closed session.  A governmental body may close a public session upon a proper showing by the individual requesting the closed session.[1]  An express finding would require the individual requesting the closed session to detail how their reputation would undoubtedly suffer if not for a closed session.  Information provided during a professional competency hearing is unpredictable in nature, thus making an express finding by a governmental body as to the need for a closed session nearly impossible to predict with precision.  Further, requiring an individual to expressly state in an open session the exact nature of the reputational harm they would suffer would render this section of the Code useless.

Iowa Code section 21.5(1)(i) does not require a governmental body to make an express finding that a closed session is necessary to prevent needless and irreparable injury to the reputation of the individual requesting the closed session.

 

BY DIRECTION AND VOTE OF THE BOARD:

Joan Corbin

E.J. Giovannetti

Barry Lindahl

Keith Luchtel

Monica McHugh

Rick Morain

Julie Pottorff

Suzan Stewart

Stan Thompson

 

SUBMITTED BY:

Logan L. Tucker
Legal Intern

 

ISSUED ON:

October 21, 2021

 

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] Feller v. Scott County Civ. Serv. Commn., 435 N.W.2d 387, 390 (Iowa App. 1988) (stating that a proper showing by the individual requesting a closed session is required before a board may allow a closed session).  

Printed from the website on January 18, 2022 at 6:51am.