The Honorable Donald V. Doyle

*1 We have received your opinion request regarding Iowa Code sections 331.221(2) and 331.504(1). The facts, as set forth in your request letter, concern whether a board of supervisors can deny a county auditor's deputy access to a board's executive session to take minutes and tape record the session, in the absence of the county auditor. Subsequent to your request letter, you indicated the request concerned a “closed session” of the Board of Supervisors.

*1 Iowa Code section 21.5(4) requires that a governmental body, such as the Board of Supervisors, keep detailed minutes of all action occurring at a closed session and that the session shall be tape recorded. Thus, the central issue we address is whether a deputy auditor is authorized to take the minutes of a closed meeting of a county board of supervisors.

*1 Iowa Code section 331.504(1) (1991) requires that:

*1 Iowa Code section 4.1(36)(a) indicates that:

*1 Thus, Iowa Code section 331.504(1) imposes a duty on a county auditor to act as clerk and to record the proceedings of the board of supervisors. The Code does not expressly mention that an auditor serve as clerk only at meetings open to the public. It must be inferred from the language in the statute that the legislature intended an auditor to record the proceedings of both closed and open sessions of the board of supervisors. Intent of the legislature is the polestar in construing statutes. Hartman v. Merged Area VI Community College, 270 N.W.2d 822 (Iowa 1978). Legislative intent is expressed by omission as well as by inclusion. Crees v. Chiles, 437 N.W.2d 249 (Iowa 1988).

*1 Iowa Code section 331.503(2) indicates that:

*2 Iowa Code section 331.903(1) states that the:

*2 Further, Iowa Code section 331.903(4) goes on to state that:

*2 Subject to Iowa Code sections 331.503(2) and 331.903(1), the auditor has the power to appoint and remove a deputy auditor. Iowa Code section 331.903(4) indicates that once appointed, a deputy auditor has a duty to fill in for and carry out the duties assigned to the auditor. One of the duties assigned to the auditor is to act as a clerk and record the proceedings of the board of supervisors in both closed and open sessions.

*2 As indicated, section 331.503(2) grants the power only to the auditor to remove a deputy, clerk or assistant. The board of supervisors has no power to revoke the appointment of a deputy county official after such official has accepted appointment and entered on their duties. 1928 Op.Att'y Gen. 246. Iowa Code section 331.211(3) indicates the only way a board of supervisors may appoint their own clerk to record board proceedings is “in the absence of the auditor, a deputy auditor, or an employee designated by the auditor.” No such scenario was presented in your request letter.

*2 We note that this opinion is not an iron-clad rule for all situations. Hypothetically, it may be possible for a potential conflict to exist between the auditor's duty to record closed sessions and the board's need to hold a closed session (i.e., a board holding a closed session to discuss potential litigation against an auditor). These types of potential conflict-of-interest situations need to be addressed on a case- by-case basis by the county attorney's office.

*2 In summary, it is our opinion that Iowa law requires a deputy auditor, in the absence of an auditor, to act as clerk and record the proceedings of both the open and closed meetings of a board of supervisors. If a board prevents a deputy auditor from recording the proceedings of an “executive session” or a closed meeting, the board impedes the deputy auditor from carrying out the deputy's statutorily assigned duty.