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IPIB AO 2019-01

Date: 
Thursday, March 21, 2019
Subject: 
Iowa Code section 21.5(1)(j), closed session for purposes of discussing sale or purchase of real estate
Ruling: 

March 21, 2019

SUBJECT:  Iowa Code section 21.5(1)(j), closed session for purposes of discussing sale or purchase of real
estate

Megan Valley
Quad-City Times
mvalley@qctimes.com

Dear Ms. Valley:

This opinion is in response to your filing of February 26, 2019, requesting an opinion from the Iowa Public
Information Board (IPIB) pursuant to Iowa Code section 23.6 and rule 497—1.2.  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 request an advisory opinion concerning whether Iowa Code section 21.5(1)(j)
allows a governmental body to hold a closed session to discuss the lease of property. You also question whether
the subsection allows discussion of a decision not to acquire the real estate, and if detailed minutes are required
when a governmental body holds a closed session. During 2018, a local school district held closed sessions to
discuss whether to lease classroom space pending the completion of the construction of a new school. When the
transaction was completed, the school district released the audio recording of the closed sessions. Upon review
of the closed session audio, you determined that the members participating in the closed session also discussed
whether to go forward with the lease of property or seek other means of resolving the problem. When you
requested the detailed minutes of the closed session, you were informed that none were kept as the school was of
the opinion that closed session minutes were not required. (Note: After the filing of this Advisory Opinion request,
you reported that detailed minutes were provided to you.)

QUESTION:
1. Does discussion of a property lease fall within the permission granted under Iowa Code section
21.5(1)(j) to allow a closed session?
2. Did the school board violate Iowa Code chapter 21 when discussion during a closed session included a
discussion of not pursuing the lease?
3. Is a governmental body required to keep detailed minutes of a closed session?

 

OPINION:

1. Does discussion of a property lease fall within the permission granted under Iowa Code section 21.5(1)(j)
to allow a closed session?

Iowa Code section 21.5(1)(j) allows a governmental body to hold a closed session as follows:

j. To discuss the purchase or sale of particular real estate only where premature disclosure could be reasonably
expected to increase the price the governmental body would have to pay for that property or reduce the price the
governmental body would receive for that property. The minutes and the audio recording of a session closed
under this paragraph shall be available for public examination when the transaction discussed is completed.


In that factual situation you pose, the closed session was held to discuss whether certain property should be
leased by the governmental body.

There are no judicial decisions in Iowa to assist in determining whether a lease is properly included in the phrase
“purchase or sale” in Iowa Code section 21.5(1)(j). The leasing of property is not the same as a purchase or a
sale. Had the Iowa Legislature wanted this section to include a discussion of a lease, that term could have been
included.

When it is uncertain whether a closed session can be properly held, it is important to evaluate the decision in light
of the language of Iowa Code section 21.5(6) – “Nothing in this section requires a governmental body to hold a
closed session to discuss or act upon any matter.” In addition, Iowa Code section 21.1 specifically directs that
“Ambiguity in the construction or application of this chapter should be resolved in favor of openness.”

Had the Legislature intended to allow a closed session for any property discussion, the language would not have
been restricted to only a discussion of a purchase or sale.

Therefore, it is the Opinion of the Iowa Public Information Board that Iowa Code section 21.5(1)(j) should only be
utilized to conduct a closed session to discuss a purchase or sale of real estate.

2. Did the school board violate Iowa Code chapter 21 when discussion during a closed session included a
discussion of not pursuing the lease?

In your factual description, you note that the school board, during the closed session, also discussed whether to
not lease the particular property. It would seem appropriate that a discussion of whether to purchase or sell
property would also include a discussion of when the governmental body might decide to forego either option.
Such a discussion, if made public, could foreseeably negatively impact the bargaining power of the governmental
body.

With the understanding that this Opinion assumes that a closed discussion may only include the purchase or sale
of real estate, the Iowa Public Information Board is of the Opinion that said discussion could reasonably include a
discussion of not going forward with either a purchase or a sale and what other options could exist.

3. Is a governmental body required to keep detailed minutes of a closed session?

Iowa Code section 21.5(a) clearly states that a governmental body “shall keep detailed minutes of all discussion,
persons present, and action occurring at a closed session, and shall also audio record all of the closed session.”

You reported that you did receive the detailed minutes at a later date.

The IPIB does not enter this or any advisory opinion to determine whether a government or governmental body
violated Iowa Code chapter 21 or 22. The purpose of an advisory opinion is to provide guidance on future actions
of such bodies.

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.


BY DIRECTION AND VOTE OF THE BOARD
 Mary Ungs-Sogaard, Chair
 E. J. Giovannetti
   Keith Luchtel
Monica McHugh
   Frederick Morain
   William Peard
   Julie Pottorff
Suzan Stewart
   Renee Twedt
  

  
Submitted by: Margaret E. Johnson, Executive Director

ISSUED ON: ______________

Printed from the website on December 04, 2020 at 3:04am.