Date:
10/04/2013
Subject:
Miller / Linn County Board of Supervisors - Chapter 21 - meetings by email, no violation
Opinion:
4 October 2013
Joel Miller
Linn County Auditor
935 2nd Street SW
Cedar Rapids, IA 52406
RE: Formal complaint concerning the Linn County Board of Supervisors and open meetings (IPIB case number 13FC:0008)
Dear Mr. Miller:
The Iowa Public Information Board met on October 3, 2013, and reviewed your complaint. Upon review and discussion of the attached memorandum, the Board voted to
adopt the recommendations made and dismiss this complaint.
Sincerely,
Margaret E. Johnson
Deputy Director
Cc: IPIB
By email only; no hard copy to follow.
September 23, 2013
Memo to the Iowa Public Information Board (IPIB)
RE: Formal complaint from the Linn County Auditor (Joel Miller) concerning the Linn County Board of Supervisors, in particular Supervisor Linda Langston
This formal complaint was filed by email from Auditor Joel Miller on September 13, 2013, as the culmination of a series of emails sent by Mr. Miller to Keith Luchtel. His
tenth email was the actual complaint submission. The complaint alleges a violation of Chapter 21 (open meetings) became apparent on August 20, 2013, at 10:02 a.m.,
when Supervisor Langston sent an email to the County Engineer, copied to the remaining four supervisors, which states, in part, “I have reviewed the Landa subdivision
with my fellow board members. Here is what we want you to do.” His complaint is that Langston convened an informal meeting for the purpose of making a decision
which resulted in a direction being given on behalf of the Board to the County Engineer, in violation of Iowa Code Section 21.3. He requests that the IPIB conduct a formal
investigation to determine if any laws were violated. He further requests that the results of an IPIB investigation, if not actionable by the IPIB, be forwarded to the appropriate
agency for prosecution.
Following receipt of the initial series of emails, this office has also received and reviewed:
1. Copies of all emails to and from Supervisor Langston with the word “Landa” in it (87 pages);
2. Published agendas for August 20, 2013; August 27, 2013; September 10, 2013 and September 18, 2013;
3. Published minutes for supervisor meetings on August 20, 2013; August 27, 2013 and September 10, 2013;
4. Landa subdivision resolution, adopted at open meeting on September 18, 2013;
5. Case history of two legal actions concerning Mr. Miller and the Board of Supervisors;
6. Emails subsequent to September 13, 2013, between Mr. Miller and Supervisor Brent Oleson;
7. Audio recording of the September 18, 2013, Board of Supervisors Meeting (26 minutes).
My findings are as follows:
1. An email from Langston was sent to County Engineer Gannon on 8/20/13, copied to all supervisors, as stated in the complaint and recited, above.
2. The Landa property issue was not on the August 20, 2013, Agenda and was not mentioned in the meeting minutes. The meeting began at 9 a.m. and ended at
9:37 a.m.
3. The Landa issue was not on the August 27, 2013, Agenda, but was noted in the minutes as part of a discussion during the report from the Planning and Development
Department, which was on the Agenda. Supervisor Langston reported on her correspondence with the Landas and the Engineer.
4. The County Engineer, Steve Gannon, was on the Agenda for the September 10, 2013, meeting and discussed the Landa issue. Supervisor Langston was not at the
meeting. Supervisor Harris was tasked with coordinating communications in her absence.
5. A Resolution concerning the Landa subdivision was on the September 18, 2013, Agenda. According to the recording reviewed, this Resolution was discussed and
voted upon at this meeting. The Resolution was approved.
6. Supervisor Langston appeared at the September 18, 2013, meeting by telephone. At that meeting, she stated “for the record” that she did not discuss the Landa
project by email or otherwise with a majority of the Board (three of five members) at any time. She stated that her conversations with Board members are always
“one-on-one” and that she misused the word “we” in her email. Supervisor Oleson stated that her involvement with overseeing the Landa project was “constituent work”.
Auditor Miller was not present at this meeting.
7. The Auditor has two lawsuits against the Board of Supervisors. Mr. Miller is appealing the decisions entered in both cases by District Court.
DISCUSSION:
The Iowa Public Information Board (IPIB) is tasked with the oversight and enforcement of violations of Chapters 21 and 22 of the Iowa Code, concerning open meetings and
public records. The IPIB jurisdiction is specifically limited to questions and concerns under these statutes. While a valid issue might be raised under the conduct of county
supervisors imposed by another law or rule, it would not fall within the limited jurisdiction of the IPIB. IPIB jurisdiction does not usually extend to the substance of a meeting.
The alleged violation reported by Linn County Auditor Joel Miller does fall under the jurisdiction of the IPIB as it relates to the provisions of Iowa Code Section 21.3 (“Meetings of governmental bodies shall be preceded by public notice as provided in section 21.4 and shall be held in open session unless closed sessions are expressly permitted by law.”) The Linn County Board of Supervisors is a governmental body subject to the requirements of Chapter 21. If the email of August 20, 2013, memorializes a meeting of the Board, then such meeting was illegally held, as there is not a corresponding Agenda or Minutes.
The definition of “meeting” has been the subject of numerous Iowa Attorney General Opinions and Iowa court decisions. Subsection 21.2(2) defines a meeting as “a gathering in person or by electronic means, informal or formal, of a majority of the members of a governmental body where there is deliberation or action upon any matter within the scope of the governmental body’s policy-making duties. Meetings shall not include a gathering of members of a governmental body for pure ministerial or social purposes when there is no discussion of policy or no intent to avoid the purposes of this chapter.”
As noted in Iowa Attorney General Opinion of May 25, 1982, a meeting consists of four elements: “1) a formal or informal gathering, 2) of a majority of the members of a governmental body, 3) for the purpose of deliberation or action, and 4) on a matter that is within the scope of the governmental body’s policy-making duties.” (1982 Iowa Op. Atty. Gen. 423) An email sent to a county employee by one supervisor, copied to the other members of the Board, does not constitute a meeting under the definition in the Iowa Code. There is no evidence in this situation that any other Supervisor participated in the complained of communication.
At the most this email could be viewed as evidence of a “walking quorum”, which under current Iowa law is not a violation. (See Iowa Court of Appeals unpublished decision Dooley v. Johnson County Board of Supervisors, No. 08-0195, Dec. 17, 2008.)
While the noted email does not in and of itself constitute or evidence a meeting, it implies that a meeting may have taken place, and that Supervisor Langston was tasked by the Board to communicate with the County Engineer. From my review of the statements made at the September 18, 2013 meeting, and the review of all of Supervisor Langston’s emails, it is my conclusion that such an illegal meeting did not occur. However, Supervisor Langston, by an unfortunate choice of language, created an impression that a group decision had been reached. There is, however, no other evidence supporting a conclusion that an illegal meeting was held.
RECOMMENDATION:
Iowa Code Section 23.8 provides two options for action by the IPIB upon receipt of a complaint, the second of which reads:
“Determine that, on its face, the complaint is outside its jurisdiction, is legally insufficient, is frivolous, is without merit, involves harmless error, or relates to a specific incident that has previously been finally disposed of on its merits by the board or a court. In such a case the board shall decline to accept the complaint. If the board refuses to accept a complaint, the board shall provide the complainant with a written order explaining its reasons for the action.”
For the reasons set forth above, I recommend that the IPIB dismiss this complaint on the grounds that violations of Chapter 21 did not occur. Therefore, the complaint appears legally insufficient and without merit. I would further recommend that the Linn County Board of Supervisors receive a copy of this Memorandum as an illustration of the need to avoid communications by email or otherwise that could imply formal or informal Board action when such has not occurred.
Margaret E. Johnson
Deputy Director