(The following story by James Quirk Jr. appeared on the Hawk Eye website on March 25.)
BURLINGTON, Iowa — The manner in which the Burlington City Council decided to sue the Burlington Northern Santa Fe Railway was illegal, state officials say.
In fact, the city has apparently been taking action to file lawsuits illegally for years.
The council met in a Jan. 26 executive session to discuss possible litigation against BNSF because of the railroad’s decision to move local shops jobs to Topeka, Kan.
A 146–year–old agreement the city has with BNSF stipulates the railroad can use riverfront property for its operations as long as it maintains the principal shops in the city.
On March 5, city officials held a press conference to announce the city had just filed suit against BNSF without formally taking a public vote on the issue.
That action, according to Ruth Cooperider, legal counsel in the state ombudsman’s office, is illegal because Iowa code states “final action by any governmental body on any matter shall be taken in an open session unless some other provision of the code expressly permits such actions to be taken in closed session.”
“They are required to return to open session to take the final action, unless they can cite some other prevailing statute that says they don’t have to do that,” Cooperider said.
According to Kathleen Richardson, executive director of the Iowa Freedom of Information Council, final action in regard to litigation must be taken in open session.
Although the code states “that a final action by a governmental body may be taken in a closed session if expressly permitted by some other provision of the code … a reading of the code yielded no such provisions,” she said.
City attorney Scott Power disagrees with Cooperider’s and Richardson’s opinions.
Power said he doesn’t see how a city is any different from any other client.
“I guess we’ve taken a lot of illegal actions over the years,” he said, adding that he can’t remember a single time when the council voted to file a lawsuit during an open session.
“It’s a matter between a client and an attorney,” he said.
City Manager Bruce Slagle said it wouldn’t make sense to hold a public vote on pending litigation.
“Why would you do that?” Slagle said. “You went to closed session for a specific purpose, to identify your strategy. Why would you turn around and come out and do that? That doesn’t make sense to me.”
Slagle said “we’ve never done that.”
The ombudsman’s office could launch an investigation into the matter, but someone would first have to file a complaint with that office, Cooperider said.