To what extent do members of a governmental body share with their attorney responsibility for compliance with the open meetings law?
To what extent do members of a governmental body share with their attorney responsibility for compliance with the open meetings law? Chapter 21.6(3) does provide the members with a defense if they “reasonably relied” upon the attorney’s opinion.
According to Chapter 21.6(4), members of a governmental body cannot claim their ignorance of its requirements as a defense. Yet, the law also recognizes that opinions of the attorney for the governmental body will be an important source of information about the Act’s requirements.
In Grell v. Building Appeals Board, 1999 WL 1255744 (Iowa Ct. App. 1999), the Iowa Court of Appeals held that members of the Coralville Building Appeals Board did not reasonably rely on the oral advice of counsel to close a session, where the members did not thereafter follow the mandated procedures for closing a session and did not tape record the session after closing. The Court left unresolved whether oral advice of counsel would constitute a “formal opinion” under Chapter 21. The Court focused instead on the attempt by board members to “shift responsibilities by blaming the City Attorney” in order to avoid civil penalties, which the Court viewed as exacerbating actions that were “clearly contrary to the objectives of the Open Meetings Law.”
A governmental body would be ill-advised to move into a closed session if counsel said, “The legality of the closing under consideration is unclear, but I see no reason why the meeting must stay open.” Reliance on that opinion would probably fail as a defense in court. The remarks are unmindful of the Act’s fundamental preference for openness.