Proposed West Branch recording rule could run afoul of state law

IOWA CITY – West Branch's city administrator said Monday the City Council may need to clarify a proposal it is scheduled to vote on Tuesday that could limit the recording of council meetings – a rule that may violate state law.

City Administrator Matt Muckler said his objective in suggesting the rule was not to stop people from recording meetings. But after being questioned about the rule by a Gazette reporter, he said the council will need to talk about it further.

“I think what we're going to do, we're going to have to look at adjusting the language in that rule so that the intent is more clear,” he said.

The item in question says electronic recording devices, including tape recorders, video and photography equipment and phones, “are not authorized for use in the Council Chambers prior to, during or following a meeting of the Council unless permission has been granted by the presiding officer and a public notice has been given to all members of the Council present.”

Iowa's open meetings law states, “The public may use cameras or recording devices at any open session.” It goes on to say that a governmental body can enforce rules to assure its meetings are orderly and free from interference.

Nothing in state law, however, would allow a ban on recordings altogether, said Kathleen Richardson, executive secretary of the Iowa Freedom of Information Council. She also said, if the rule is enacted, West Branch shouldn't be able to stop someone from recording once the person gives notice.

Even a revised rule could be subject to a legal challenge and a judge would have to decide if it is reasonable, she said.

“They (city officials) have to be careful this isn't punitive or has a chilling effect on people who would like to record,” Richardson said.

West Branch is a town of about 2,300 residents located 10 miles east of Iowa City.

The recording item is one of 58 mostly routine procedural rules the West Branch City Council is supposed to vote on at a meeting that starts at 6:30 p.m. Tuesday. (One includes a dress code for council members; Muckler said an Iowa City radio station was inaccurately reporting that the dress code would apply to the public at council meetings.)

The rules would replace Robert's Rules of Order, a book that is widely used by governmental bodies to provide guidance to their conduct. With the book stretching to more than 700 pages, Muckler said the new procedural rules were intended to simplify things.

He noted that the first rule calls for fair and open deliberations and the fourth rule says they would conform to state law.

So, he said, even though the recording rule says permission must be granted, the other rules would not allow recording to be banned.

Muckler said the rule was intended to provide a protocol for notification of recording and to protect citizens and the city from a “gotcha mentality” of someone trying to provoke a conflict and then secretly recording it.

But City Council meetings are already recorded, and Richardson said there should be no expectation of privacy in open meetings.

When asked what would happen if a person arrived at a meeting after it started and wanted to record it but did not receive permission, Muckler said he hadn't considered that and it was another reason the rule should be reconsidered.

David Johnson, who left the West Branch City Council last month after serving one term, said he believes the recording rule is a response to a Dec. 19 meeting that included a debate that at times got heated over a proposed state grant to build sidewalks and a pedestrian bridge in town .

The meeting included one council member, Mark Worrell, using a curse word, telling Johnson to “shut up” and raising his voice at someone in the audience. (See the video below.)

“I think these rules are kind of a knee-jerk reaction to what happened at the last meeting,” said Johnson, who is running for the Iowa House Representatives. “They're embarrassed by what happened, and I think they're trying to make it look like they're going to try to rectify this type of situation.”

Muckler said the recording rule did not result from any particular meeting. He acknowledged City Council meetings have at times been uncivil.

Johnson, who said some council meetings have a reality TV-like feel, got a copy of the Dec. 19 meeting recording and posted it on YouTube. He said the city has not been broadcasting council meetings recently.

Mayor Don Kessler said that is true but the reason is because of technical problems with the city website. The council has been accused of not always being open in its actions, but that is not the case, he said.

“If there's a controversy, record,” Kessler said. “I don't care.”

Johnson said if the rule is enacted, he will file a complaint with the state. He also said that while he will be participating in the presidential caucuses Tuesday night, his wife, Jennie Embree, will be at the West Branch City Council meeting.

She plans to record it, he said.

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Here is the video from the Dec. 19 meeting. The cursing occurs at the 13:00 mark.