Date:
11/14/2013
Subject:
Wallace D. Parrish / Cedar Falls Iowa City Council - Chapter 21 and Chapter 22 - Email meeting alleged
Opinion:
October 7, 2013
Mr. Wallace D. Parrish, JD
1246 Clark Avenue
Cedar Falls, Iowa 50613
RE: Order Dismissing Complaint 13FC:0007 filed with the Iowa Public Information Board
Dear Mr. Parrish:
The Iowa Public Information Board (IPIB) received the above referenced complaint dated September 6, 2013 and supplemental material submitted under cover of September 25, including exhibits 1 through 4.
Your complaint alleges a series of electronic meetings illegally held without public notice as required by Iowa Code chapter 21 as well other allegations of wrongdoing arising from those acts alleged to have been committed by the Mayor and Council of the City of Cedar Falls as well as City department heads. You allege that the many emails offered as Exhibits 1 through 3 between various parties concerning issues relating to an area of Cedar Falls known as “College Hill” constitute a series of illegal electronic meetings.
Exhibits 1 and 2 are copies of an email dated July 9, 2013, and a forward of that email to Mr. Parrish. The email from Christopher Martin is directed to City of Cedar Falls officials and employees. It questions the allowance of an “inadvertent driveway widening” serving adjoining properties owned by Mr. Parrish during a street reconstruction.
Exhibit 3 contains a series of emails beginning on April 17, 2013, and concluding on July 15, 2013, including the email in Exhibits 1 and 2.
Exhibit 4 is a newspaper article concerning College Hill.
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.
A review of the submitted emails reveals that most of these emails are an electronic exchange of information, suggestions and ideas between members of the city staff and a citizens group known as “College Hill Partnership,” apparently a loose-knit organization of property owners in the College Hill neighborhood. The general subject of the communications concerns street reconstruction, city planning and zoning and the specific planning, future development and improvement of the College Hill
neighborhood. Most of these emails indicate copies are being simultaneously provided to the Mayor and Council Members of the City of Cedar Falls.
Complainant learned of these communications as a result of being supplied a “leaked” copy (Exhibit 2) of one of the emails dated July 9, 2013, (Exhibit 1) on or about July 9, 2013. Mr. Parrish believes the copy was supplied to him as an owner of two adjoining rental properties in the College Hill neighborhood and because they contain a discussion of the large “curb cut” providing access to these properties.
Mr. Parrish specifically alleges that Christopher Martin, head of the College Hill Partnership “had access to an electronic assembly consisting of the Mayor of Cedar Falls, several City department heads and the entire Cedar Falls City Council communicating with them on a regular basis . . . about matters involving the exercise of the discretion and judgment . . . “ of those officials.
It is my conclusion that the complaint is within the jurisdiction of the IPIB. That jurisdiction is limited to matters within the purview of Code Chapters 21 and 22. Therefore, issues outside that jurisdictional limit that are raised in your complaint and supplemental materials are not discussed.
A review of the submissions made in support of the complaint reveals that the only evidence of an “assemblage” is the fact that elected officials were copied on the reviewed email communications. In one instance an at-large council member actively participated in an exchange with an employee. Other than that, the elected officials were passive recipients of copies of the emails, the subjects of which were general issues concerning zoning and development issues, the neighborhood and, on occasion, specific discussions concerning the Parrish properties joint curb cut.
While the exhibits clearly indicate communications to the officials and staff of the City of Iowa Falls occurred, it appears that the communications were one-way as to the involved governmental body (Cedar Falls City Council) regulated by Iowa Code chapter 21.
Iowa Code section 21.2, paragraph 2, defines the term “meeting” as used in the Open Meeting Law as follows:
2. “Meeting” means a gathering in person or by electronic means, formal or informal, 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 purely ministerial or social purposes when there is no discussion of policy or no intent to avoid the purposes of this chapter. (Emphasis supplied.)
For there to be a finding of an illegal meeting under the circumstances alleged in the complaint, there must first be a finding that “a gathering . . . by electronic means” occurred. The facts alleged in the complaint and supporting documentation make the complaint dependent upon an interpretation of the statute that a “gathering” can be caused to occur by someone other than the participants. The members of the governmental body did not initiate the emails submitted. The IPIB cannot conclude that a “gathering” can be forced by the mere act of inclusion of public officials as copy recipients of a series of emails. Not only would that be an unreasonable conclusion, it would appear to infringe upon the right of petition as guaranteed by the First Amendment to the United States Constitution. The fact that the communication is by email instead of postal mail is insignificant in this situation. It is a common and acceptable practice to provide written communications expressing an opinion on public policy issues to public officials who constitute the entire membership of a governmental body.
There is no evidence that the persons merely copied on the emails actively participated in any way as a group constituting a majority of the members of the governmental body, another criterion for the finding of a meeting subject to the law. And there is no evidence of deliberation or action in any respect that occurred which was within their scope of policy-making duties, additional requirements for establishment of a “meeting.” Neither deliberation nor action can be inferred from mere passiveness. There is no evidence indicating that a majority of the council even read their email copies.
For further discussion of these elements, see the Attorney General Opinion of May 25, 1982, addressing the components of a meeting.
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 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, it is therefore ordered that the complaint is dismissed on the grounds that violations of Chapter 21 did not occur, making the complaint legally insufficient and without merit.
A copy of this Order is being forwarded to the Iowa Public Information Board for review at its next scheduled meeting on November 21.
Sincerely,
Keith Luchtel
Executive Director
cc: City of Cedar Falls