Closed Sessions Procedures
There are times when it is necessary for a city council to discuss city business in a closed session prior to making a decision in the open meeting. While the Code of Iowa affords city councils several options to move to closed session, it is imperative that council members are aware of the laws that govern closed sessions. City councils must follow proper procedures to ensure they comply with the law.
When a Closed Session is Allowed
Code of Iowa Section 21.5 authorizes governmental bodies to close a meeting “only to the extent a closed meeting is necessary” and for one of the lawful reasons. Section 21.5 details numerous reasons that allow a governing body to go to a closed session, with several that apply to city councils:
To discuss records that are required to be kept confidential. The Open Records Law (Chapter 22) specifically identifies records that are to remain confidential. A city may meet in a closed session to discuss these records.
To discuss strategy with legal counsel in matters that are presently in litigation or where litigation is imminent and where its disclosure would be likely to prejudice or disadvantage the government. Because this topic touches on the issue of attorney-client privilege, it is important to work closely with your city attorney or the attorney representing you in the litigation. The Iowa Public Information Board issued an opinion in late 2015 that requires a public statement to be completed prior to the meeting, which acknowledges the attorney-client relationship between the city and the individual who will serve as legal counsel. The statement can be an existing engagement letter, contract, resolution or designation made in the minutes of a prior meeting. If no statement has been made, the city council should announce before going to the closed session that it will utilize the individual as its legal counsel for the closed session discussion.
To discuss law enforcement strategies and investigation. This section allows a city to meet in closed session to avoid disclosure of specific law enforcement matters where disclosure would enable law violators to avoid detection or where disclosure would facilitate disregard of requirements imposed by law.
To evaluate the professional competency of an individual whose appointment, hiring, performance or discharge is being considered, and when necessary to prevent needless and irreparable injury to that individual’s reputation and that individual requests a closed session. This is the most frequently used provision of the law for closing a meeting. It is important to remember that this closed session must be specifically requested by the employee, and any decisions must be made in an open session.
To discuss the purchase or sale of real estate. The preliminary discussion of purchasing or selling a particular property where the premature disclosure could be expected to increase the price may be made in a closed session. If the issue involves condemnation, the matter is more correctly considered a litigation matter. This provision also requires the minutes and recording of the closed session to be made available for public inspection after the transaction is completed.
A closed session may also be held to discuss records required by different state and federal laws to remain confidential.
Other chapters of the Code specifically allow governing bodies to close an open meeting. For example, the Public Employment Relations Act (Code Chapter 20) requires the presentation of the initial bargaining positions of the employer and the bargaining unit to be made in open sessions; subsequent negotiating meetings and strategy sessions are exempt from open meetings law. In addition, governing bodies of any municipal utility are allowed to conduct closed sessions to discuss marketing and pricing information if its competitive position would be harmed by public disclosure (Code Section 388.9). The council must return to the open session to take final action on a measure discussed in the closed session. The courts have identified certain exceptions, such as the council may give direction to its attorney on the settlement of litigation while in closed session.
Closed Sessions Procedures
The council should identify on its meeting agenda the item(s) that could include a closed session and cite the section in the Code of Iowa that allows them to do so. The meeting must begin in an open session with a call to order and a roll call. In order to go into a closed session, there must be a motion to hold a closed session that is approved by two-thirds of the members or all those present. The minutes must record the votes of individual council members on the question of holding a closed session. In addition, the motion and minutes must state the specific exemption under Section 21.5 of the Code that permits a closed session.
Once in a closed session, the council must not discuss any other business or topic that does not directly relate to the reason for the closed session. Upon completion of the closed session, a motion and vote must be taken to end the closed session and return to the open session. A governmental body may not exclude a member from attending a closed session unless a member has a conflict of interest due to the specific reason for going to a closed session.
Minutes for Closed Sessions
The city must audio record and take detailed minutes of the meeting. Both minutes and recordings are required to be sealed and may not be opened except by order of a court. The minutes and recording are required to be kept for at least one year unless enforcement action is initiated. In that case, the minutes and recording must be retained until the litigation is completed. In the case of the purchase or sale of real estate, the minutes and recording must be available for public examination when the purchase is finalized. The state code allows the State Ombudsman to access the minutes and audio recordings of a closed session without obtaining a court order when such examination is relevant to an investigation under Code Chapter 2C and the information sought is not available through other reasonable means.
Actions to enforce the Open Meetings Law may be brought by any aggrieved person, taxpayer, a citizen of the state of Iowa, the attorney general or a county attorney. Actions to enforce the Open Meetings Law have also been brought by council members, city employees and various media. To bring a challenge, a party must prove the city council is a governmental body subject to Code Chapter 21 and that a closed session was held. The city bears the burden of proving that the meeting was not in violation. Upon order of the court, the minutes and recording of the closed session may be unsealed and submitted to the judge for review. Following this private review, the court must decide whether any portion of the minutes or recording of the minutes will be disclosed to the person alleging the violation for use in the enforcement action.
City councils must be aware that a lack of wrongful intent to violate the law cannot excuse noncompliance. In addition, ignorance of the law is not a defense. Individual members of the council may escape liability from a violation if the person voted against going into a closed session. Members of the council also cannot be held liable for violations if they reasonably relied upon a decision of a court or a written opinion of the attorney general or their city attorney. For this reason, the League strongly urges cities to consult with their city attorney prior to holding a closed session.
Each member who participated in the violation may be assessed damages in the amount of not more than $2,500 or less than $1,000. The members in violation pay this fee to the city. In addition, the costs and reasonable attorney fees are to be paid to the party who established a violation. If the body is found to have had a lawful defense for the violation, the fees and costs must be paid from the city budget. In addition, the court has the authority to void any action taken in the closed session.
The Iowa Public Information Board (IPIB) is the state agency that provides oversight of the Open Meetings and Open Records laws. Any citizens has the right to file related complaints with IPIB for a potential investigation.
For more information on open meetings, please visit the Open Meetings page.