The 1978 Legislature passed a new open meetings law which became effective on January 1, 1979. This new open meetings law clarifies the earlier law and removes many of the ambiguities. It is now possible to speak with some greater precision about the legal requirements imposed by statute.
Some time ago the university counsel was asked for an opinion on the open meetings law. He wrote as follows:
"In light of the new open meetings law, I thought it might be wise for me to update my letter of July 20, 1977. Unless I hear from you requesting additional information, I will confine my remarks to the subject matter of that letter; that is, whether university committees are subject to the open meetings law.
"It is my opinion that the new statute, which becomes effective January 1, 1979, does not change my previous letter. In fact, if anything, I think it is clearer that university committees created by you or your delegate are not a governmental body which was to hold public meetings.
"The new statute, in part, defines a governmental body as one 'expressly created by the statutes of the state or by executive order'. Executive order is not defined, but I assume that refers to orders of the governor. Clearly, university committees are not such a creature.
"Governmental bodies also include 'a multi-membered body formally and directly created by' a governmental body. This would refer to committees or other groups created by the Board of Regents whether it included Regents or not. Therefore, if you have any organized groups of any kind that have been created by the Board of Regents, then those groups are public bodies and must comply with the new public meeting law.
"Lastly, the legislature showed that it did not intend to include all committees appointed by the Regents or presidents of universities by specifically defining bodies responsible for the management and control of intercollegiate athletic programs to be a public body. This incorporates the Greene decision. More importantly, it is extremely narrow, therefore, it excludes other committees. Had the legislature intended to include all similar committees, the language would have been materially different."
To our knowledge, then, the only body possibly covered by the open meetings law on this campus is the Athletic Policy Advisory Council and that is by no means certain from the language of the statute. Occasionally, a question has been raised about the University Faculty Senate, but apparently the University Faculty Senate, which was created in 1937, grew out of the Council of Instructional Department Heads and was not formally or directly created by the Board of Regents. Its composition and rules have been changed over the years without reference to the Regents. The Board of Regents Office is now checking minutes to ascertain if other committees are subject to the statute.
Having said all of this, it should also be said that even those committees and multi-membered bodies not bound by the law should operate in the spirit of the new statute, holding open meetings for the most part but also paying due attention to the reasons given for holding a closed session.
For the benefit of the Athletic Policy Advisory Council, then, the following procedures should be followed.
- At least 24 hours prior to the commencement of the meeting a notice of the meeting and a tentative agenda for the meeting should be posted on a bulletin board which is accessible to the public. In addition, it would be necessary for the notice and tentative agenda to be sent to any news organization which has requested notification of meetings. In any case, when it is necessary to hold a meeting on less than 24 hours notice the reason for holding the meeting on less than 24 hours notice must be stated in the minutes. A bulletin board will be designated in Gilchrist Hall for this purpose.
- Minutes should be kept of each meeting and should include a time and place, the members present, the action taken at the meeting, and the results of each vote taken. The minutes need not be exceedingly detailed but they should make it possible for a reader to ascertain the general subject matter discussed at the meeting and any decisions taken. A custodian for the minutes should be designated and he/she should maintain them in an orderly and up-to-date fashion.
- In the event that the Athletic Policy Advisory Council decides the public may legally be excluded, certain procedures must strictly be observed:
- Two-thirds of the members of the committee or all of the members present at the meeting, whichever is less, must vote in the affirmative to close a meeting.
- The vote of each member on the question of holding the closed session and the reason for holding the closed session, by a specific reference to an exception to the law (as outlined below), must be announced publicly in the open session and entered in the minutes.
- Subject matter may not be discussed during the closed session which does not directly relate to the reason announced in the public session for closing the meeting.
- Final action on any matter discussed in the closed session must be taken in an open session, unless some other provision of the Iowa Code or federal constitutional law expressly requires or permits such action to be taken in closed session.
- The entire closed session must be tape recorded, and detailed minutes, indicating persons present, must be kept of all discussions and action occurring at the closed session. The detailed minutes and tape recording of the closed session must be sealed and kept for a period of at least one year from the date of the meeting.
The following reasons may be used for holding a closed session:
- To review or discuss records which are required or authorized by state or federal law to be kept confidential or to be kept confidential as a condition for that governmental body's possession or continued receipt of federal funds.
- To discuss application for letters patent.
- To discuss strategy with counsel in matters that are presently in litigation or where litigation is imminent where its disclosure would be likely to prejudice or disadvantage the position of the governmental body in that litigation.
- To discuss the contents of a licensing examination or whether to initiate licensee disciplinary investigations or proceedings if the governmental body is a licensing or examining board.
- To discuss whether to conduct a hearing or to conduct hearings to suspend or expel a student, unless an open session is requested by the student or a parent or guardian of the student if the student is a minor.
- To discuss the decision to be rendered in a contested case conducted according to the provisions of chapter 17A of the Code.
- To avoid disclosure of specific law enforcement matters, such as current or proposed investigations, inspection or auditing techniques or schedules, which if disclosed would enable law violators to avoid detection.
- To avoid disclosure of specific law enforcement matters, such as allowable tolerances or criteria for the selection, prosecution or settlement of cases, which if disclosed 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 when necessary to prevent needless and irreparable injury to that individual's reputation and that individual requests a closed session.
- To discuss the purchase 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. The minutes and the tape recording of a session closed under this paragraph shall be available for public examination when the transaction discussed is completed.
Let me repeat again that I believe the committees, councils, multi-membered bodies of any kind should operate in the spirit of the new statute even though the law does not require them to do so.
A clear exception to the procedures spelled out by the open meetings law must of course be observed in areas affecting statutory and constitutional civil rights, including rights to privacy as they may be affected in certain administrative or judicial proceedings. There are certain committees which should not conduct activities in public for to do so would violate other provisions of state or federal law. Where the Iowa open meetings law conflicts with constitutional law or federal statutes, the constitutional and federal law takes precedence. Examples of such are: Section 438 of the General Education Provision Act, Title IV of Public Law 90-247 as amended, and regulations pertaining to that act.
Where individual rights, including rights to privacy, are relevant, committees may not conduct certain activities in public without violating provisions of state and federal law. Such committees would be those committees concerned with social or academic disciplinary measures with respect to students, search committees associated with employment of persons, or committees considering individual student or personnel records.
To assist with compliance with this law, a bulletin board clearly identified for the posting of notices of public meetings is in the east hall, second floor, of Gilchrist Hall. This bulletin board will be used for the posting of notices of public meetings of the Board of Regents and any other meetings to be held on the UNI campus that fall within the scope of the Iowa Open Meetings Law. Announcements of Board of Regents meetings, including agenda, will be posted by the Office of Public Information.
Preparation of announcements of all other public meetings to be held on the UNI campus will be the responsibility of the office or organization hosting the meeting. These announcements, containing tentative agenda, are to be taken to the Office of Public
Information for posting at least twenty-four hours in advance of the meeting.
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