Date:
11/14/2013
Subject:
Jerry Niichel / Sanborn City Council - Chapter 21 - Improper Posting of Minutes
Opinion:
28 October 2013
Jerry Niichel
205 Franklin Street
Sanborn, IA 51248
RE: Complaint 13FC:0028, citing at Chapter 21 violation involving the Sanborn (Iowa) City Council
Dear Mr. Niichel:
The Iowa Public Information Board (IPIB) received and reviewed your complaint dated October 24, 2013, concerning the Sanborn (Iowa) city council. In that complaint you alleged that on October 16, 2013, the Sanborn City Council met in an illegal meeting in violation of the Open Meetings laws, Iowa Code Chapter 21. Specifically, you allege that the Council conducted a meeting without posting notice in “an accessible and normal spot 24 hours prior to the meeting” as required by law.
In addition to your complaint, we received your photos of the location of the posting. According to your description, the City maintains a designated board in the lobby of City Hall for posting agendas and notices of meetings. The board is accessible to the general public during business hours, 8 a.m. to 5 p.m. In this incident you cite, the agenda for the meeting was posted on October 15, 2013, at 3 p.m., more than 24 hours prior to the meeting at 5 p.m. the next day, but was not accessible to the public during the time that City Hall was closed.
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.
The city government of Sanborn was contacted concerning your complaint and referred this matter to the city attorney, Daniel DeKoter. Mr. DeKoter provided information about the posting of notices for city meetings. There is a glass enclosed bulletin board for the notices. This is the normal posting location, according to the City. A second notice is posted on a glass door, visible outside the building, for the Monday meetings, as City Hall is closed all weekend. That practice has been in effect for about two years, according to Mr. DeKoter.
The proper posting of a tentative agenda is governed by Iowa Code Section 21.4. Subsection 21.4(1) describes proper notice as including the “time, date, and place of each meeting” and the tentative agenda in a manner “reasonably calculated to apprise the public of that information.” This includes “posting the notice on a bulletin board or other prominent place which is easily accessible to the public and clearly designated for that purpose at the principal office of the body holding the meeting, or if no such office exists, at the building in which the meeting is to be held.”
There appears to be no question, based upon the information and photos you provided, that the City has met the requirements of this subsection.
Your secondary questions concerns the provision in Section 21.4(2) which provides proper notice “shall be given at least twenty-four hours prior to the commencement of any meeting of a governmental body” under normal circumstances. Your complaint notes that the bulletin board is not viewable from outside City Hall, and is therefore not accessible to the public during the hours that City Hall is closed. You request that the IPIB determine that the twenty-four hour notice requires continuous access, or that the aggregate hours of accessibility total twenty-four hours.
Most, if not all, Iowa governmental bodies post meeting notice in the manner followed by the Sanborn City Council. Subsection 21.4(2) requires “at least twenty-four hours” notice, not twenty-four ‘business’ hours or twenty-four hour ‘continuously available’ notice. To require twenty-four hour continuously available notice would be a major change beyond the scope of authority of the IPIB. A modification of this magnitude should only be made by the Iowa Legislature.
The Iowa Supreme Court touched briefly on this issue in 2013 in the decision City of Postville v. Upper Explorerland Regional Planning Commission, 834 N.W. 2d 1. The Supreme Court ordered a case remanded to district court, setting aside a summary judgment order. In that situation, the regular notice was posted on a board away from the main areas of the Commission’s Postville office in a hallway to the restroom and some private offices. While not determining that reasonable notice requires a certain location, the Court returned the issue to the district court for further hearings or trial on the issue of reasonableness. The Court did not address the undisputed fact that the notice was only accessible from 8 a.m. to 4:30 p.m. while the building was open to the public.
Although not required by state law, the City of Sanborn also offers email notice to anyone who requests that. You may contact City Hall to be included in that service.
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.
A copy of this Order is being forwarded to the Iowa Public Information Board for review at its next scheduled meeting on November 14.
Keith Luchtel
Executive Director
cc: Daniel DeKoter
Ruth Cooperrider