The Open Meetings law does not prohibit 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. The Court noted, however, that “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.”
Actions of staff and governing body members taken prior to implementing a policy decision may be subject to extra scrutiny and review (with the benefit of 20/20 hindsight) by those opposed to the decision. In light of the Hutchison decision, we recommend that boards consider having legal counsel perform a training session to educate board members and administrative staff on open meetings issues, and how to properly document conversations with staff members in ongoing efforts to appropriately manage the public body and serve the public. We also recommend that governing boards review the following considerations with legal counsel:
- Use of Staff and Other Agents: Staff may share information with a board or council member outside of an open meeting. However, if the staff person can be said to be assisting the board or council with building a consensus among the governing body members on a policy-making matter, the staff person could be viewed as an “agent” for other board members, and such meetings, even if less than a majority of the board or council are present, would be subject to Open Meetings requirements.
- Open Sessions: Meetings between staff persons and board / council members involving the sharing of views of absent board / council members and including
consideration of how the board or council can reach a consensus on an issue should be avoided. If there is any question as to whether an informational discussion could be perceived to be an improper meeting, the public body should hold an open meeting for action on the topic. It is unclear if a future court would determine that a follow-up open meeting with public deliberation and formal action would “cure” an alleged open meetings violation. But electing to hold an open meeting and discuss the issue prior to implementing the policy decision could rebut any argument that the public was prevented from learning about the board’s decision.
- Closed Sessions: Even if a meeting results in deliberation on a policy-making matter, remember there are numerous topics that are permissible for closed session discussion in Iowa Code section 21.5.
- Exempt Sessions: Gatherings of a majority of a board to discuss strategy in matters concerning negotiations with an employee union (section 20.17(3)) and employment conditions of non-organized staff (section 21.9) are fully exempt from the open meetings law. The full board/council can always meet to discuss these matters outside of an open meeting.