Date:
01/10/2014
Subject:
Edwin Jones / Osceola County Economic Development Commission - Chapter 21 - Open Meetings
Opinion:
January 10, 2013
Edwin Jones
2138 Verdin Ave.
Ocheyedan, IA 51354
RE: Formal Complaint 13FC:0043, concerning the Osceola County Economic Development Commission and open meetings (Chapter 21)
Dear Mr. Jones:
On December 16, 2013, you filed a formal complaint with this office alleging that the Osceola County Economic Development Commission (OCEDC) improperly held closed sessions between the time frames of August 28, 2012 and October 24, 2013 (14 meetings total). Due to the jurisdictional limitation of the Iowa Public Information Board (IPIB) of 60 days, only the October 24, 2013, meeting can be considered by the IPIB.
Upon receipt of your complaint (along with complaint 13FC:0042 concerning the Osceola County Board of Supervisors) a copy was provided to Daniel DeKoter, counsel for the OCEDC. Due to the holidays, Mr. DeKoter did not receive the correspondence until the end of December 2013. He provided a response on January 6, 2014. Your complaint (in italics), along with his response, is as follows:
1. Under section 21.5(3), the final action on the Berkenpas settlement should have been taken in open session. In fact, the count BOS voted on 11-5-13 to enter into a settlement with the Berkenpas. That same morning, without any OCEDC meeting being held, Dan DeKoter, attorney for OCEDC, submitted a withdrawal of counter-claim at 9:45 a.m.
The OCEDC has insurance for claims such as the Berkenpas lawsuit. By coincidence, the carrier of the applicable policy is one that I have represented for many years. Under the terms of the policy, the carrier has the right to direct and control defense of claims. The carrier retained me as counsel for the insured and the carrier. The decision about settlement belonged to the carrier alone and did not require board action by the OCEDC.
Thus, the insurance carrier directed and controlled the actions taken to settle the case. Of course, I also fulfilled my professional responsibilities to the Commission and Mr. Grau, who was named personally. I had Mr. Grau’s personal authorization for dismissal of his counterclaim without prejudice. The counterclaim for the Commission was in the control of the carrier, but I also had concurrence of the Commission’s Chair to dismiss it, without prejudice. The settlement basically was that the Berkenpas’s would abandon their lawsuit in exchange for dismissals, without prejudice, of the abuse of process claims and claims for court sanctions against them and their attorney. The tacit understanding is that the counterclaims would be re-asserted if some other form of legal action were pursued by these claimants.
2. From December 2012-July 2013 the board entered into closed session under Iowa Code 12.5.(A typo maybe?)
Yes, the reference in the minutes to “12.5” appears to have been an inadvertent typographical error. It has been corrected. The cited dates are outside of the complaint period that is within the IPIB’s jurisdiction in any event.
3. Board entered into closed session under section 21.5 and 22.7, but no specific exemption was ever noted in the minutes. The board met in closed session under this section of the code for over year and no final action was ever taken in open session.
The Commission did fail to cite the specific exemptions in some instances. We are working with the Commission’s secretary to correct the problem, and I have asked that she refer all agendas to me for review before meetings. I have also confirmed with the Board’s chairperson that no votes took place during the previous closed sessions and no action in open session was necessary, for the reasons I have explained above. I have attached a copy of the November agenda from this year which will likely be typical of agendas moving forward.
4. Failure to note under Iowa Code 21.5(2) the “specific exemption” that they are going into closed session for.
This is repetitive. See the discussion above.
5. Failure to take final action under Iowa Code 21.5(3) before submitting a Memorandum of Understanding concerning Northland Buildings to the County BOS. There is no mention in the minutes of preparation or approval of this Memorandum that was submitted by OCEDC to the county.
This is one of those instances where the Commission is merely facilitating a development project. The Memorandum of Understanding is a legal document to which the OCEDC is not a party. The Memorandum was prepared at the request of the OCEDC Director, who was working with members of the County Board of Supervisors. The Memorandum was submitted to the County for action, since the County is a party to it, and the Commission is not. I worked on this personally along with the county attorney and the county’s bond counsel. I am pleased to say that my involvement saved taxpayers significant legal expenses which would otherwise have been incurred with bond counsel. This work is within the authority of the Director and did not require specific board action.
6. No action was taken to request financial assistance for the OCEDC office from the county Board of Supervisors. However, such a request was submitted to the BOS and action was taken at the BOS meeting on 11-26-13.
The “financial assistance” in question is money for a part-time person to handle Kirk Grau’s duties in his absence. At the time of Mr. Jones’ complaint, Kirk was in hospice care in Sioux Falls, South Dakota. He passed away recently after fighting esophageal cancer for three years.
I do not know why Mr. Jones thinks it was necessary for the Commission to vote on this first, before the county discussed and agreed to provide funding. Had the county voted “no”, the Commission would not have had the resources to hire anyone. The funding issue was considered first by the Board of Supervisors at a public meeting with proper notice. The public had an opportunity to comment when it mattered most, i.e. when money was being authorized.
Based upon the information provided with the complaint and upon the information provided by Mr. DeKoter, there is no evidence of a violation of Chapter 21 occurring at the October 24, 2013, meeting. If no action was decided as a result of discussion during a closed meeting, then there is no need to hold a formal vote upon return to open session. Any corrective action (number 3, above) has already been initiated by counsel for the OCEDC. There is no evidence that the paragraph three of the complaint occurred within the IPIB 60-day jurisdictional limitation.
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 the alleged violations of Chapter 21 are 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 January 16, 2014.
Sincerely,
Keith Luchtel
Executive Director
cc. Osceola County Economic Development Commission
Daniel DeKoter
IPIB