Openness law bars public meeting engagement? I'm skeptical

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So during a recent editorial board session with Cedar Rapids Board of Eduction candidates, we heard some interesting comments regarding public comment.

The board, to its credit, provides a period for public comment at its public meetings. It’s not legally required to do so. But the board also has long insisted Iowa’s open meetings law requires that it remain mostly silent when it comes to engaging with commenters or answering their questions.

“If it’s not on the agenda, I can’t discuss that with you as a board member. Because then it becomes an agenda item,” District 3 Board member Keith Westercamp told us. He’s running for re-election. “It’s a violation of the open meetings law to have a back and forth conversation.”

Westercamp says it’s frustrating. He can’t speak up even when he knows the answer to a constituent’s question. He fears a fine for breaking the law. Instead, he contends it’s better to address the question, privately, after the meeting.

Christopher Gehrke, who is running for an at-large board seat, agrees with Westercamp’s interpretation, which also leaves some members of the public frustrated.

“That’s one of the frustrations in the community. They don’t understand the open meetings laws,” Gehrke said.

I don’t mean to pick on Westercamp or Gehrke or one school board. They’re hardly the first officials/candidates to assert this interpretation.

But I do understand Iowa’s open meetings law. I’ve read Chapter 21 of the Iowa Code more times than I can count. I’ve closely followed the issues, debates and court cases shaping it over the last two decades. It’s my job.

I understand the law requires city councils, school boards, county supervisors, etc., to post tentative meeting agendas at least 24 hours before scheduled meetings. I understand the core intent of that requirement is to keep those panels from deliberating and taking action on items not on the agenda.

So no deliberations, and no action. But does the open meetings law really require members to clam up in the face of people seeking explanation, clarification or illumination? A simple answer to a straightforward question?

I’m skeptical. And so is Randy Evans, executive director of the Iowa Freedom of Information Council.

“To me it seems like a super-strict interpretation,” Evans said. “I think what they’re really trying to avoid is answering questions from the public when other members of the public are sitting there.

“Fielding a question is, to me, not what the law was trying to avoid. The law is trying to avoid the school board making a decision on something that wasn’t on the agenda,” Evans said.

Westercamp and Gehrke cited guidance from Attorney General Tom Miller’s office. So I asked the office’s spokesman, Geoff Greenwood, to explain.

“If a matter is raised at a public meeting and was not included on the tentative agenda, the best practice is to schedule discussion or deliberation on that item for a subsequent meeting. This applies to matters that are raised by members of the public during a public comment period,” Greenwood said in an email.

I agree. If a constituent raises a weighty matter requiring board deliberation or action, that shouldn’t happen on the fly. But the attorney general’s advice hardly precludes any and all engagement with the public in public session. And you’ll note the advice isn’t take the issue into the lobby for a huddle after the meeting.

I asked Cedar Rapids Board Secretary Laurel Day where the board’s legal interpretation came from in the first place. She cited the 24-hour notice requirement, but no specific legal rulings or opinions. She then explained the board’s public comment philosophy.

“It is a common misperception in the public that a public comment period is where individuals can come to get their issues addressed,” Day wrote me in an email. “This is not the case. The public comment period is where individuals can come to make their concerns known. If there are instances where board members engage individuals providing public comment to the board this would be inconsistent with the purpose of public comment and sends a confusing message to the public regarding the nature and purpose of public comment.”

So engaging with the public would send a confusing message to the public. Now I’m confused.

Again, to be fair, the board isn’t required to offer public comment time. It can set the ground rules as it sees fit. If it wants to remain silent during public comments and refer people to staff for answers later, that’s the board’s prerogative. If members fear public engagement will somehow undermine decorum or drag out meetings, they can decline to engage. I may disagree, but it’s perfectly legal.

However, insisting Iowa’s open meetings law requires this sort of policy is, at best, a dubious argument, and, at worst, a dodge. The law exists to foster public engagement, not preclude it. And its intent clearly states any ambiguity in its interpretation should come down on the side of openness. The law is an open window, not a shield to hide behind.

Engaging with the public in public can be messy and uncomfortable. But illegal? I’m not convinced.

l Comments: (319) 398-8262; todd.dorman@thegazette.com

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