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IPIB 18 AO 0016

Date: 
Thursday, November 15, 2018
Subject: 
Applicability of Iowa Code § 21.5 provisions concerning the review of a school board’s closed session minutes and audio recording, by a superintendent not employed by the district on the date of the closed session. The superintendent is seeking to review
Ruling: 

DATE:  November 15, 2018

SUBJECT:  Applicability of Iowa Code § 21.5 provisions concerning the review of a school board’s closed session minutes and audio recording, by a superintendent not employed by the district on the date of the closed session.  The superintendent is seeking to review the closed session minutes to fulfill the former school district’s disclosure obligation to the student’s new school district under Iowa Code § 279.9A.

RULING:

IPIB 18 AO:  0016                                                               

Mr. Stephen F. Avery, Attorney
Cornwall, Avery, Bjornstad & Scott
407 Grand Avenue, P.O. Box 999
Spencer, Iowa  51301

Dear Mr. Avery:

This opinion is in response to your filing of August 10, 2018, requesting an opinion from the Iowa Public Information Board (IPIB) pursuant to Iowa Code § 21.5 (1)(e), § 21.5 (5)(b)(1), § 279.9A, and rule 497—1.  We note at the outset that IPIB’s jurisdiction is limited to the application of Iowa Code chapters 21, 22, and 23, and 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. 

FACTUAL STATEMENT:  

You requested an advisory opinion regarding reconciling a superintendent’s obligations under Iowa Code § 21.5 (1) (e), § 21.5 (5) (b) (1), and § 279.9A.  As noted in the first paragraph, generally the IPIB’s jurisdiction is limited to the application of Iowa Code chapters 21, 22, and 23, and rules in Iowa Administrative Code chapter 497.   

A school superintendent commenced employment on or after July 1, 2018 and a student in his/her district was expelled during a closed school board session in March of 2018.  You wanted to know whether he/she can access the sealed records of the closed session expulsion hearing in order to disclose the information to the receiving district of a student transfer, required by a different section of the Iowa Code § 279.9A.

QUESTION:  Can a school district superintendent review the previous records of a closed school board session to expel or suspend a student if the closed meeting occurred prior to the superintendent’s employment with the district in order to satisfy obligations to the former student’s new school district?

OPINION: 

The Iowa Public Information Board cannot offer advice on compliance with Iowa Code § 279.9A, but can advise as to rights and obligations under Iowa Code § 21.5, Iowa’s Open Meetings Act.  Superintendents can seek a direct ruling from an Iowa District Court to examine the closed minutes in camera and seek a declaratory judgment on how to reconcile that with its obligations under § 279.9A.

It is also permissible for minor students or their parents to agree that the closed meeting minutes and records be released to the superintendent and receiving school district.

Iowa Code § 21.5 (1) (e) allows a school board to meet in closed session to suspend or expel a student by a vote of two-thirds of the members at the meeting, unless the student and/or parents request an open meeting. 

The Iowa Attorney General previously offered the opinion that any school board member, who served on the school board at the time of the closed session, but was absent on a particular date, may later review the closed session minutes and records on that date s/he did not attend.  01-11-1(L), 2001 WL 1651411 (Iowa A.G.).

In so holding, the Iowa Attorney General reasoned that while Section 21.5 (5) (b)(1) provides generally that the minutes and tape recording of a closed session ‘shall be sealed and shall not be public records open to public inspection’ absent a court order, a specific prohibition against public inspection does not generally prohibit ‘nonpublic’ inspection.

A number of Iowa cases corroborate the sentiment the Iowa Attorney General expressed, suggesting that certain public officials, particularly board members, have a right to examine closed meetings to fulfill their job duties.

However, no previous Court ruling in any state, nor the language of the Iowa Open Meetings Act, specifically addresses whether a Superintendent may examine closed meeting records and minutes which happened prior to him/her beginning employment with the district.

The Iowa Supreme Court holds that ambiguities in the Open Meetings Statute should be resolved in favor of openness.  Schumacher v. Lisbon School Board, 682 N.W. 2d 183 (1998).

In Schumacher v. Lisbon School Board, the Iowa Supreme Court held that a school district that conducted a closed session to suspend a student, when the student requested an open meeting, violated Iowa Code Section 21.5 (1)(e).  682 N.W. 2d 183 (1998).  In so holding, the Court interpreted Section 21.5 (1)(e) to require an open student disciplinary hearing upon the student or parents’ request.  The Court approved sanctioning the school district for conducting a closed disciplinary session for a suspension when the student requested an open session.  This decision implies that the confidential closed sessions which school boards conduct concerning student discipline serve the protection of the minor student, and that even a minor child can waive that confidentiality.

In Gabrilson v. Flynn, 554 N.W. 2d 267 (1996) the Iowa Supreme Court held that school board members, as fiduciaries to school districts, should have access to records and documents of the district, in order to give effect to their authority under the law, and that school board members have greater rights than ordinary citizens to examine confidential records as a result under Iowa Code Section 22, the open records act, but the same reasoning applies to Iowa Code Section 21.  This Court decision clearly states that persons with public authority under the law have a greater right to examine confidential records of a public body than members of the general public, whether for general records or meetings.

Iowa Code § 21.5 (5)(b)(1) holds that

“. . . The detailed minutes and audio recording of a closed session shall be sealed and shall not be public records open to public inspection.  However, upon order of the Court in an action to enforce this chapter, the detailed minutes and audio recording shall be unsealed and examined by the Court in camera.  The court shall then determine what part, if any, of the minutes should be disclosed to the party seeking enforcement of this chapter for use in that enforcement of that proceeding . . . “

While the Iowa Public Information Board under § 23.6 (6) has authority to examine confidential records, unlike a court, it cannot offer an opinion on reconciling the obligations under Iowa Code § 21.5 with the superintendent’s obligations under Iowa Code § 279.9A.  The superintendent has the right to file an action with a District Court in Iowa asking the Court to rule on the appropriate course of conduct reconciling these two seemingly conflicting obligations.

CONCLUSION:

The Iowa legislature did not exempt a superintendent in § 21.5 (5)(b) from having to obtain a Court review of the records in camera, while referencing other school board actions in § 21.5 (1)(e). Furthermore, none of the previous cases address a superintendent’s right to examine closed meeting records; superintendents do not have an unqualified right to review closed meeting records predating their employment.

Since ambiguities must be resolved in favor of openness, if the expelled student and/or the student’s parents’ consent to the release of the information, the superintendent and receiving district could then review the closed meeting records without fear of violating Iowa Code §21.5.  It is clear the Iowa Supreme Court’s decision implies that the confidential closed sessions which school boards conduct concerning student discipline serve the protection of the minor student, and that even a minor child can waive that confidentiality.  Schumacher v. Lisbon School Board, 682 N.W. 2d 183 (1998). 

BY DIRECTION AND VOTE OF THE BOARD.

Mary Ungs-Sogaard, Chair
Keith Luchtel​
Monica McHugh
Frederick Morain​
William Peard​
Julie Pottorff​
Suzan Stewart
Renee Twedt​

Prepared by:  Amanda T. Adams

Issued on:  November 15, 2018

 

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.

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