This is the first part in a three part series exploring important changes to Iowa’s open meeting law.
Iowa’s open meeting law seeks to ensure that the basis and reasoning for governmental decisions are easily accessible to the public. To that end, Iowa Code section 21.2(2) requires notice and a public hearing whenever a majority of a governmental body gathers to deliberate on matters within the scope of their policy-making authority.
While Iowa’s open meeting law strives for open deliberation, it is impossible for a governmental body to perform all of its work through elected officials acting in open meetings. This reality has given rise to a practice that has become common among Iowa’s governmental bodies over the past three decades: shuttle diplomacy. Shuttle diplomacy in the present context refers to the practice of holding serial meetings between a sub-majority group of elected officials and one or more non-elected officials (most often an employee(s) of the governmental body) who then pass messages or otherwise facilitate discussion between the remaining elected officials. A recent Iowa Supreme Court opinion calls this practice into question.
In Hutchison v. Shull, the Iowa Supreme Court considered whether meetings of individual members of the three-member Warren County Board of Supervisors and the non-elected Warren County Administrator deliberating about the reorganization of county government triggers Iowa’s open meeting requirement. By meeting individually with the Administrator, the Board members were able to reach compromises about which positions to eliminate as part of the reorganization process ahead of an open meeting in which the recommendations passed without discussion.
A sharply-divided Iowa Supreme Court (the vote was 4-3 against a strong dissent) held that the definition of “meeting” in Iowa Code section 21.2(2) requiring notice and a public hearing extends to all in-person gatherings at which there is deliberation upon any matter within the scope of the policy-making duties of a governmental body by a majority of its members, as well as in-person gatherings attended by a majority of the members by virtue of an agent or proxy. In Hutchison, there was no dispute that this type of deliberation had occurred between one elected official at a time and the Administrator. The question was whether the Administrator was acting as an agent of another board member thereby resulting in a gathering of a majority of the board when the Administrator met with one board member. However, the Court was unable to reach a definitive conclusion about whether Warren County violated the open meetings law through the use of the Administrator as an agent. Instead, the Iowa Supreme Court sent the case back to the district court to determine whether the Administrator acted within the scope of her agency when she deliberated with the supervisors about the reorganization process and terms. If the district court finds that an agency relationship existed, and that the Administrator acted within the scope of her agency authority, the opinion directs the district court to find a violation of Iowa’s open meeting law, but to then also consider whether this violation was alleviated by the Board’s subsequent ratification of the reorganization plan in an open meeting.
The Court went on to explain the difference between prohibited “deliberation” when a majority is present and a permitted “general discussion or information exchange.” As the Court in Hutchison explained, Iowa’s open meeting law expressly permits “discussions between members of a governmental body and its staff to exchange ideas and gather information in order for the body to act upon an issue during an open meeting. However, the open meetings law does prohibit the majority of a governmental body gathering in person through the use of agents or proxies to deliberate any matter within the scope of its policy-making duties outside the public view.”
This opinion has important implications for all governmental bodies. Over thirty-five years ago, the Court unanimously held that private, in-person gatherings of less than a majority of policymakers does not trigger notice and public hearing requirements. That 35-year-old holding has now been called into question. Moreover, as a minority of the Court acknowledges, the new ambiguity surrounding these issues engenders litigation and creates risk for elected officials who face personal liability for violations of the open meetings law in the absence of clear legal authority of advice of counsel.
A lengthier analysis of the opinion is available here. In part two of this series, we will explore the agency considerations raised by Hutchison as well as the difference between deliberation and general discussion or information exchange. In part three, we will offer advice about how to proceed in light of the changes to Iowa’s open meetings law.