                     IN THE COURT OF APPEALS OF IOWA

                                  No. 14-0751
                             Filed March 25, 2015

JAMES W. OLINGER and LARRY
C. MEYER,
     Plaintiffs-Appellants,

vs.

ROBERT SMITH, WALTER UTMAN
and GAYLORD PITT, HARRISON
COUNTY, IOWA and UTMAN
DRAINAGE DISTRICT,
     Defendants-Appellees.
________________________________________________________________

      Appeal from the Iowa District Court for Harrison County, James M.

Richardson, Judge.



      Appellants appeal the district court’s orders concerning claims that

appellees violated Iowa’s Open Meetings Act.        VACATED IN PART AND

REMANDED.



      Jessica A. Zupp of Zupp & Zupp Law Firm, P.C. and Allen K. Nepper of

Nepper Law Firm, Denison, for appellants.

      Sasha L. Monthei of Sheldrup Blades, Cedar Rapids, for appellees.



      Heard by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
                                         2



MULLINS, J.

       James Olinger and Larry Meyer claim the Utman Drainage District

Trustees violated Iowa’s Open Meetings Act (IOMA). Olinger and Meyer have

appealed from a ruling by the district court claiming the court erred in ordering

damages before ascertaining whether the Utman Drainage District’s Trustees’

violation on November 7, 2013, was made knowingly, erred in suspending those

damages, and erred in failing to award Olinger and Meyer attorney fees or costs.

Olinger and Meyer further contend the district court erred in failing to find an

IOMA violation on November 14, 2013, arguing Iowa Code section 21.5(1)(c)

(2013) cannot be invoked unless counsel is present. We vacate in part and

remand.

I.     Background Facts and Proceedings

       Robert Smith, Walter Utman, and Gaylord Pitt comprised the Harrison

County Board of Supervisors in November 2013. Acting in their capacity as

trustees for the Utman Drainage District (trustees), they went into closed

sessions on November 7 and November 14, 2013, allegedly to discuss matters

relating to pending litigation. In pleadings, the trustees admitted counsel for the

district was not present at either meeting.

       On November 25, 2013, James Olinger and Larry Meyer filed a petition

alleging that both closed sessions were held in violation of IOMA. Olinger and

Meyer filed a motion seeking an in camera inspection of the recording of the

closed sessions.    The trustees answered by asserting litigation was in fact

pending or imminent.     The court approved an order presented jointly by the
                                          3



parties that stipulated to the district court’s in camera inspection of the recordings

of the meetings for the purposes of “determin[ing] whether prejudice to the public

will result from disclosure of any portion of the recordings or, in the alternative,

whether the probative value of the recordings outweighs any prejudice to the

public which might result from such disclosure.” See Iowa Code § 21.5(4).

       After the inspection, the district court filed an order on March 4, 2014,

which held Olinger and Meyer were entitled to access the November 7, 2013

recording as it merely evidenced a discussion of whether to pay the costs of

subpoenas from a previous lawsuit, the release of which would not prejudice the

trustees in future proceedings.       The court found the November 14, 2013

recording should not be released, however, as the trustees discussed litigation

strategy involving imminent litigation, the release of which would prejudice the

trustees. Upon finding the recording from the November 7, 2013 meeting must

be disclosed, the court invoked Iowa Code section 21.6(3)(a) and ordered each

participating trustee to pay a $100 fine.      The court, apparently sua sponte,

supplemented its order on March 11, 2014, by suspending this fine and providing

that “[i]n lieu of the fine” the trustees purchase an “Open Meetings, Open

Records” handbook from the Iowa Freedom of Information Council for two

dollars.

       On March 13, 2014, the trustees filed an Iowa Rule Civil Procedure

1.904(2) motion to amend both orders as they were not afforded an opportunity

to establish their compliance with IOMA or present defenses pursuant to section

21.6(3)(a). On March 21, 2014, Olinger and Meyer also filed a rule 1.904(2)
                                         4



motion asserting their in camera motion was limited to the question of prejudice

and disclosure, not the assessment of penalties pursuant to IOMA, that the

district court erred in not allowing the trustees to present section 21.6(3)(a)

defenses, erred in finding only one IOMA violation, and erred in suspending the

trustees’ fines. The trustees withdrew their motion on March 24, 2014.

       The court held a telephone hearing on Olinger and Meyer’s rule 1.904(2)

motion to reconsider on April 11, 2014, at which time the motion was summarily

overruled and denied. Olinger and Meyer appeal the court’s orders.

II.    Damages, Fees and Costs and the November 7 Meeting

       Our review is for correction of errors at law. Iowa R. App. P. 6.907.

       Iowa Code section 21.3 requires meetings of governmental bodies to be

held in open session unless closed sessions are expressly permitted by law.

Section 21.5(1) provides, in part,

       A governmental body may hold a closed session only to the extent a
       closed session is necessary for any of the following reasons:
              ....
              c. 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.

       Pursuant to section 21.6(2), the burden is on plaintiff to prove a

governmental body went into closed session. Once the plaintiff so demonstrates,

the burden shifts to the defendants to demonstrate compliance with chapter 21.

See Iowa Code § 21.6(2). If a court finds the defendants violated chapter 21, it

       [s]hall assess each member of the governmental body who
       participated in its violation damages in the amount of not more than
       five hundred dollars and not less than one hundred dollars.
       However, if a member of a governmental body knowingly
                                         5



       participated in such a violation, damages shall be in the amount of
       not more than two thousand five hundred dollars and not less than
       one thousand dollars.

See id. § 21.6(3)(a) (emphasis added).

       Pursuant to section 21.6(3)(a), a defendant member can avoid the

imposition of these damages and defend against the IOMA violation claim by

establishing the member:

              (1) Voted against the closed session.
              (2) Had good reason to believe and in good faith believed
       facts which, if true, would have indicated compliance with all the
       requirements of this chapter.
              (3) Reasonably relied upon a decision of a court, a formal
       opinion of the Iowa public information board, the attorney general,
       or the attorney for the governmental body, given in writing, or as
       memorialized in the minutes of the meeting at which a formal oral
       opinion was given, or an advisory opinion of the Iowa public
       information board, the attorney general, or the attorney for the
       governmental body, given in writing.

       If successful, a defendant member not only avoids personal sanctions, but

also avoids personal responsibility for the costs and attorney fees pursuant to

section 21.6(3)(b), which states the court:

       shall order the payment of all costs and reasonable attorney fees in
       the trial and appellate courts to any party successfully establishing
       a violation of this chapter. The costs and fees shall be paid by
       those members of the governmental body who are assessed
       damages under paragraph “a”. If no such members exist because
       they have a lawful defense under that paragraph to the imposition
       of such damages, the costs and fees shall be paid to the successful
       party from the budget of the offending governmental body or its
       parent.

       In its order approving the in camera inspection, the court stated its

purpose for listening to such recordings was to determine “whether the Plaintiffs

be given access to all or portions of the recordings for the purpose of reviewing,
                                         6



copying and using them for trial preparation and trial.” The court order did not

indicate—nor had the parties requested—that this determination would resolve

the issue of whether an IOMA violation occurred, or the potential damages or

relevant defenses. On March 4, 2014, the district court ordered each member of

the Harrison County Board of Supervisors that participated in the November 7,

2013 meeting to pay $100 “fine” for holding a closed session on that date.

       Both parties find errors in the district court’s order. With respect to the

ruling on the November 7 meeting, Olinger and Meyer contend the court erred in

imposing final damages before ascertaining whether the trustees knowingly

participated in the violations as outlined in section 21.6(3)(a), erred in suspending

those damages, and erred in failing to award them attorney fees and costs for the

trustees’ IOMA violation according to section 21.6(3)(b).

       The trustees concede the district court erred in imposing damages before

making a finding they violated IOMA1 and erred in failing to grant them an

opportunity to be heard and present defenses pursuant to section 21.6(3)(a)(1)–

(3).

       A.     Knowingly or unknowingly

       The district court’s March 4, 2014 order made no express finding that the

trustees violated IOMA, but implicitly did so when it assessed damages pursuant

to section 21.6(3)(a). The order also made no finding regarding whether the

trustees knowingly violated IOMA at the November 7 meeting. The court’s order


1
  A court determination under section 21.5(4) that minutes or recording of a closed
meeting must be disclosed to a party seeking enforcement of IOMA is not a
determination that a violation of IOMA has occurred. Compare Iowa Code § 21.5(4) with
§ 21.6.
                                          7



assessing damages was premature and constitutes error as it assessed

damages without giving the plaintiffs an opportunity to present evidence

necessary for the court to determine whether each member “knowingly

participated in such a violation” pursuant to section 21.6(3)(a).

       B.     Damages

       Section 21.6(3)(a) states the district court “shall” assess damages upon a

determination a violation has occurred, and provides damage amounts to be

assessed.     Chapter 21 makes no provision for suspending or waiving an

assessment. If the court finds a violation of IOMA has occurred, and the court

finds that a member has not proved any of the defenses under section

21.6(3)(a)(1), (2) or (3), an assessment of damages is mandatory and the district

court is not permitted to suspend such assessment or reduce it below the

statutory mandate. The district court erred when it suspended the “fine.”

       C.     Defenses

       The    court committed error when its March 4, 2014 order assessed

damages without allowing the trustees the opportunity to present any defense

per section 21.6(3)(a)(1), (2) or (3).2

       D.     Attorney Fees

       Section 21.6(3)(b) mandates the award of attorney fees to a party

successfully establishing a violation of IOMA. The March 4, 2014 order fails to

address attorney fees. On remand, if the court finds the trustees have proved a


2
  Although the trustees did not cross-appeal, the plaintiffs specifically requested a
remand “for a ‘knowingly’ hearing so both sides can present evidence on that issue” and
requested a hearing to determine whether the trustees acted in good faith. The trustees
also assert personal immunity pursuant to chapter 28H.
                                           8



valid defense, the obligation to pay the plaintiffs’ attorney fees shifts to the

governmental body or its parent pursuant to section 21.6(3)(b).

       With regard to the November 7, 2013 meeting, the district court order that

requires the trustees to disclose the recording stands as entered; no party

appealed from that portion of the ruling. The damages provision and any other

ordered provisions concerning that meeting are vacated. We remand for further

proceedings consistent with this ruling.

III.   Presence of Counsel and the November 14 Meeting

       On appeal, Olinger and Meyer argue the court erred in finding only one

violation of IOMA, and that it should have found a violation regarding the

November 14, 2013. They argue that counsel must have been present to legally

invoke the closed meeting exception found in section 21.5(1)(c), and that the

trustees violated IOMA when they proceeded into closed session on November

14, 2013, without an attorney present. They have framed the issue as seeking

reversal of the district court’s finding that no violation occurred on November 14,

and arguing they were not allowed to address the issues of damages and

attorney fees. In their pleadings, the trustees admitted that an attorney was not

present, but they argue on appeal that a closed meeting is permissible under

section 21.5(1)(c) regardless of an attorney’s presence.

       In our discussion of the November 7 meeting, we noted the district court

did not explicitly find the trustees violated IOMA, but that it implicitly made such a

determination when it proceeded to award damages pursuant to section

21.6(3)(a).   Similarly, the district court did not make any explicit finding the
                                          9



trustees did not violate IOMA concerning the November 14 meeting. The only

explicit finding the court made concerning the November 14 meeting was that the

plaintiffs were not entitled to the recording of the meeting. But in examining the

entire order and considering the court’s intended finality of the proceedings, it is

clear the court implicitly determined no violation of IOMA occurred. The only

reasonable interpretation of the court’s order of March 4, 2014, and its nunc pro

tunc order of March 11, 2014, is that it had concluded the trustees had not

violated IOMA as to the November 14, 2013 meeting.               Upon denial of the

plaintiffs’ rule 1.904(2) motion, the court obviously considered the case

concluded. Both parties have proceeded in this appeal on the assumption the

court found no violation of IOMA concerning that meeting.            All parties have

agreed the issue is preserved. Based on our view of the court’s final ruling on

the issue and the manner in which the parties have briefed the case, we will

address the issue as though the court explicitly found the trustees did not violate

IOMA on November 14.

       Although Olinger and Meyer appealed all adverse rulings and orders, they

did not brief or argue that the court erred when it denied their request to access

the recording of the November 14 meeting.          Thus, that portion of the ruling

stands. See State v. Short, 851 N.W.2d 474, 479 (Iowa 2014) (noting that an

issue will be waived if the parties fail to advance it on appeal).

       The court’s determination that the recording need not be disclosed was a

preliminary issue—limited by the plaintiffs’ motion for in camera inspection, by

the stipulated order approved by the court, and by Iowa Code section 21.5(4)—
                                        10



and should not have been considered dispositive of the entire case. The extent

to which the court’s March 4 order was a determination that the trustees had not

violated IOMA with regard to the November 14 meeting, such a ruling was

premature and must be vacated, as that ultimate issue was not before the court

at that time. The parties are entitled to develop the record necessary for the

court to determine whether a violation of IOMA occurred; and, if so, to determine

damages, consider defenses, and award attorney fees and costs as directed

above in our discussion of the November 7 meeting.

      On remand we expect one of the fighting issues to be whether counsel

must be present in order to satisfy section 21.5(1)(c). As the matter has been

fully briefed on this appeal, “we will address that question now to provide

guidance upon remand.” Downs v. Bd. of Trs. of Police Ret. Sys. of City of Sioux

City, 312 N.W.2d 563, 567 (Iowa 1981).             Section 21.5(1)(c) allows a

governmental body to hold a closed session “[t]o 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.” Iowa Code § 21.5(1)(c).

      “In determining what the legislature intended . . . we are constrained to

follow the express terms of the statute.” State v. Byers, 456 N.W.2d 917, 919

(Iowa 1990). “When a statute is plain and its meaning clear, courts are not

permitted to search for meaning beyond its express terms.” State v. Chang, 587

N.W.2d 459, 461 (Iowa 1998). If we find the statute is unambiguous, we may not

utilize additional canons of statutory construction to further develop its meaning.
                                         11



See State v. Messer, 822 N.W.2d 116, 119 (Iowa 2012). We do not find section

21.5(1)(c)’s language to be ambiguous. Our supreme court has explained:

               We have consistently stated that the purpose of statutory
        interpretation is to determine legislative intent. See, e.g., In re
        Estate of Bockwoldt, 814 N.W.2d 215, 223 (Iowa 2012).
               “We give words their ordinary and common meaning
               by considering the context within which they are used,
               absent a statutory definition or an established
               meaning in the law. We also consider the legislative
               history of a statute, including prior enactments, when
               ascertaining legislative intent. When we interpret a
               statute, we assess the statute in its entirety, not just
               isolated words or phrases.”
        Id. (quoting Doe v. Iowa Dep’t of Human Servs., 786 N.W.2d 853,
        858 (Iowa 2010)) (citations omitted).
               In ascertaining legislative intent, we consider “the statute’s
        subject matter, the object to be accomplished, the purpose to be
        served, underlying policies, remedies provided, and the
        consequences of the various interpretations.” State v. Dohlman,
        725 N.W.2d 428, 431 (Iowa 2006) (citation and internal quotation
        marks omitted). We also consider the legislative history of a statute
        when determining legislative intent. Id. at 431–32.

State v. Lindell, 828 N.W.2d 1, 5 (Iowa 2013) cert. denied, 134 S. Ct. 249 (2013).

        The trustees contend that the placement of “or” in section 21.5(1)(c)—

“presently in litigation or where litigation is imminent”—makes the presence of

counsel optional. They assert for the session to be closed counsel needs to be

present to discuss matters presently in litigation, but not to discuss imminent

litigation.

        As the phrase “discuss strategy with counsel” is placed at the beginning of

the sentence, we find it modifies both the “presently in litigation” and “where

litigation is imminent” clauses. Both clauses are dependent, and thus, both made

whole and constrained by the “to discuss strategy with counsel” clause

introducing the exception. As explained below, legislative intent—derived from
                                        12



related statutes and legislative history—supports our grammatical interpretation

that “discuss strategy with counsel” applies to both clauses.

       The source of Iowa’s litigation exception can be traced to House File

2074. See 1978 Iowa Acts, ch. 1037, § 6. The exception, along with other

provisions of the Act, was introduced on January 19, 1978. See H. Journal, 67th

G.A., 2nd Sess., at 143 (Iowa 1978). As introduced, the litigation exception was

the same as the exception before the court today. Throughout its time in both

the House and Senate, H.F. 2074 was drafted narrowly. See, e.g., H. Journal,

67th G.A., 2nd Sess., at 197–98 (H-5114, amendment attempting to change

“imminent” to “possible” lost).

       The bill passed the House and when it was received back from the Senate

on April 5, 1978, it included an amendment to strike the words “with counsel”

from the exception. See H. Journal, 67th G.A., 2nd Sess., at 1372 (H-5914,

Senate amendment to House amended H.F. 2074, striking p. 4 line 1 words “with

counsel”). Certainly, such an amendment would have permitted closed sessions

to discuss litigation regardless of attorney presence.

       For our purposes, however, it is most significant that H-5914 was

introduced and considered, but failed to pass. On April 27, 1978, the House

heard a conference committee report from a joint House-Senate committee

appointed to reconcile the differences between House and Senate versions of

the H.F. 2074. See H. Journal, 67th G.A., 2nd Sess., at 1967. The committee

recommended the Senate recede from its H-5914 amendment entirely; it further

recommended a series of mutual amendments for which “with counsel” would
                                        13



remain in the bill.   See H. Journal, 67th G.A., 2nd Sess., at 1968.         The

conference committee report was adopted by the House. See H. Journal, 67th

G.A., 2nd Sess., at 1970.     The bill passed the House with the committee’s

recommended changes on April 27, 1998. See H. Journal, 67th G.A., 2nd Sess.,

at 1970–971. On May 2, 1978, the Senate informed the House that it likewise

adopted the committee report and passed H.F. 2074 with the committee’s

amendments. See H. Journal 67th G.A., 2nd Sess., at 2106. Certainly, Iowa’s

legislature intended closed sessions to be held “with counsel”.

      This is consistent with the way in which our sister states have interpreted

similar provisions. See Page v. MiraCosta Cmty. Coll. Dist., 102 Cal. Rptr. 3d

902, 924, 927–28 (Cal. Ct. App. 2009) (stating the statute which allowed for

closed sessions to “confer with, or receive advice from, its legal counsel” only

applied to meetings between board and their own legal counsel, not to a meeting

with opposing parties and their counsel); Tobacco Use Prevention & Control

Found. Bd. of Trs. v. Boyce, 925 N.E.2d 641, 658–59 (Ohio Ct. App. 2009), aff’d,

941 N.E.2d 745 (Ohio 2010) (noting litigation exception which allowed for closed

sessions to conduct “conferences with an attorney” did not apply when board’s

attorney was not present at meeting and attorneys that were present were not

acting in their capacity as attorneys for the board); see also Manning v. City of

East Tawas, 593 N.W.2d 649, 653 (Mich. Ct. App. 1999) (holding litigation

exception—providing for closed sessions so that a board may “consult with its

attorney”—is invoked whenever the public body meets with an attorney,

regardless of whether it is its own attorney), overruled on other grounds by
                                            14



Speicher v. Columbia Twp. Bd. of Trs., ___ N.W.2d ___, ___, 2014 WL 7270359

(Mich. 2014).

        Some states have interpreted the litigation exception so narrowly as to not

apply in some situations even if counsel is present. See Brainerd Daily Dispatch

v. Dehen, 693 N.W.2d 435, 437, 442 (Minn. Ct. App. 2005) (stating the attorney-

client privilege exception is narrowly construed to require openness in situations

in which an attorney is present giving legal advice but discussing other city

business); Edinger v. Governing Auth. of Stutsman Cnty. Corr. Ctr. & Law

Enforcement Ctr., 695 N.W.2d 447, 450, 451 (N.D. 2005) (stating “mere

presence or participation of an attorney” at a meeting is not enough to invoke a

litigation   exception   which    provides       for   closed   sessions   for   “attorney

consultation”).3

        Further evidence of our legislature’s intent that we should interpret IOMA

“in favor of openness” is found in Iowa Code section 21.1: “Ambiguity in the

construction or application of this chapter should be resolved in favor of

openness.” See also Hall v. Broadlawns Med. Ctr., 811 N.W.2d 478, 485, 487

(noting the “presumption in favor of disclosure under [Iowa’s] freedom of

information statutes” and declining to “create through interpretation” of section


3
  Some states have litigation exceptions that do not include “with counsel.” See State v.
Yzaguirre, 163 P.3d 1183, 1189 (Idaho 2007) (discussing the attorney presence
requirement of Idaho’s then-litigation exception—providing for closed sessions to
“consider and advise its legal representatives in pending litigation”—but declining to rule
on it; notably, Idaho has amended its litigation exception to state that “the mere
presence of legal counsel at an executive session does not satisfy this requirement”);
Mayer & Aldermen of Vicksburg v. Vicksburg Printing & Pub. Co., 434 So. 2d 1333,
1338–339 (Miss. 1983) (holding that the plain meaning of Mississippi’s litigation
exception—permitting closed sessions for “[s]trategy sessions or negotiations with
respect to prospective litigation”—does not require attorney presence).
                                         15



21.5(1) a “virtually limitless exception to our public records law” as “the specific

exemptions contained in freedom of information statutes are to be construed

narrowly”).

       Giving the words of section 21.5(1)(c) their ordinary and common meaning

in the context of the statute, and upon consideration of the legislative intent

derived from our review of legislative history and the express terms of section

21.1, together with our consideration of case law from other jurisdictions, we

conclude that a closed session under Iowa Code section 21.5(1)(c) requires the

presence4 of counsel at the meeting in order to satisfy the requirement “to

discuss strategy with counsel.”

       That portion of the March 4 order denying the plaintiffs’ request to access

the recording of the November 14 meeting stands as entered. To the extent the

order is interpreted as a determination IOMA was not violated when the trustees

went into closed session on November 14, such determination is vacated. We

remand to permit the parties to develop the record and obtain a determination as

to whether there was an IOMA violation on November 14, 2013, and if so, for

other proceedings consistent with this opinion.




4
  On the record before us we offer no opinion as to the breadth and scope of the term
“presence.”
                                        16



IV.    Conclusion

       The decision of the district court requiring disclosure of the recording from

the November 7, 2013 meeting stands as entered. All other ordered provisions

relating to that meeting are vacated and the parties shall have an opportunity to

develop a record as set forth above.      The order of the court with regard to

disclosure of the recording from the November 14, 2013 meeting stands as

entered. To the extent the order is interpreted as a determination IOMA was not

violated when the trustees went into closed session on November 14, such

determination is vacated.       This case is remanded for further proceedings

consistent with this opinion.

       VACATED IN PART AND REMANDED.
