Date:
01/02/2014
Subject:
Edwin Jones / Osceola County Board of Supervisors - Chapter 21 - Open Meetings
Opinion:
2 January 2014 BY EMAIL ONLY
Edwin Jones
2138 Verdin Avenue
Ocheyedan, IA 51354
RE: Complaint 13FC:0042 - concerning a complaint Osceola County (Iowa) Board of Supervisors
Dear Mr. Jones:
The Iowa Public Information Board (IPIB) received your complaint of December 16, 2013. In that complaint you alleged that the Osceola County Board of Supervisors met in an illegal session on November 5, 2013, when they met with counsel in closed session.
Pursuant to Iowa Administrative Code Rule 497-2.1(3), the IPIB may delegate acceptance or dismissal of a complaint to the Executive Director. The decision of the Executive Director is subject to review by the Board.
Iowa Code Section 21.5 recites the specific reasons that allow a governmental body to hold a closed session. One section allows a closed session 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." (Subsection 21.5(1)(c))
The agenda for the November 5, 2013, meeting of the Osceola County Board of Supervisors provded appropriate notice that the Board would be going into a closed session under Subsection 21.5(1)(c). The minutes from that meeting noted that the Board properly voted to go into a closed session. No votes were taken by the Board following the closed session that would appear to relate to the discussion during the closed session.
The Osceola County Attorney was contacted concerning your complaint, as the minutes did not indicate that he was physically present to meet with the Board in closed session. The County Attorney, Bob Hansen, stated that the Board met telephonically with a privately retained counsel, Douglas Phillips. Mr. Phillips was retained by the insurance company that insures Osceola County for the Berkenpas litigation you mention in your complaint. He was present by telephone during the closed session. This is sufficient to meet the statutory requirements of 'with counsel.'
Mr. Klass submitted a written response to the request for additional information. That response is attached. In the response, Mr. Klass indicates that no vote was taken to accept a settlement or to withdraw a counterclaim. He notes that the counterclaim referenced was filed by the attorney for a co-defendant, Kurt Grau. The Board of Supervisors did not have authority to accept a settlement on behalf of Mr. Grau or on behalf of the insurance company for the County.
Iowa Code Section 23.8 provides two options for action by the IPIB upon receipt of a complaint, the second of which states:
"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 case the board shall decline to accept the complaint. If the board refuses to accept a complaint, the board shall provide the compainant with a written order explaining its reason for the action."
For the reasons set forth above, it is threfore ordered that the complaint is dismissed on the grounds that the alleged violations of Chapter 21 are legally insufficient and without merit.
A copy of this Order is being forwarded tothe Iowa Public Information Board for review at its next scheduled meeting on January 16, 2014.
Sincerely,
Keith Luchtel
Executive Director
cc: Osceola County Board of Supervisors
Bob Hansen, Osceola County Attorney
Douglas L. Phillips
IPIB