15FC:0010 10/15/2015 Margaret Stoldorf / Red Oak Community School Board

Date:
10/15/2015

Subject:
Margaret Stoldorf / Red Oak Community School Board

Opinion:

Iowa Public Information Board

In re the Matter of: Margaret Stoldorf, complainant And concerning: Red Oak Community School Board

Case Number: 15FC:0010                                                PROBABLE CAUSE REPORT

 

RE:  Formal Complaint 15FC:0010, filed by Margaret Stoldorf and concerning the Red Oak Community School Board (Board).  Recommend dismissal

On February 13, 2015, Margaret Stoldorf filed a formal complaint against the Red Oak School Board (Board) alleging violations of the open meetings laws of Iowa Code chapter 21.  On June 18, 2015, the Iowa Public Information Board (IPIB) accepted two parts of her complaint:

1. Whether the Board violated Chapter 21 for failing to provide an agenda for a Subcommittee for Facilities and Operations meeting, and
2. Whether the Board violated Chapter 21 for failing to provide timely media notice for a School Improvement Advisory Committee meeting.

The remaining complaint issues were dismissed.

Pursuant to Iowa Code section 23.9, upon acceptance of a complaint, IPIB staff shall work with the parties to reach an informal resolution.  Attempts to resolve the complaint informally were not successful.

Iowa Code section 23.10 directs IPIB staff to conduct a formal investigation and present a probable cause report to the IPIB.  For ease of review, the two remaining issues will be addressed separately.

ISSUE ONE: Facilities and Operations Subcommittee

Further investigation of the nature and purpose of this committee confirms that this subcommittee does not meet the definition of a governmental body as provided by Iowa Code section 21.2(1).  This subcommittee was not created by statute or executive order; was not a political sub-division; and was not “formally and directly” created by “one or more boards, councils, commissions, or other governing bodies” (see Iowa Code subsections 21.2(1)(a), (b), and (c)).

The subcommittee members were selected by the school superintendent for a one-time gathering on January 30, 2015, to interview three candidates for construction management services.  There were ten members, of which two were sitting school board members (out of five Board members).  Members utilized a questionnaire and rating sheet to conduct the interviews.  The report from the subcommittee was provided to the facilities committee to include in that committee’s report to the Board for the actual selection and awarding of the contract.

The January 30th meeting was open to the public and notice of the meeting was posted at the District Administration Center on January 29, 2015.  There was not a quorum of Board members present at the meeting.

Recommend dismissal of Issue One for lack of probable cause to believe a violation occurred.

ISSUE TWO:  School Improvement Advisory Committee (SIAC)

On December 31, 2014, notice of the January 5, 2015, meeting of the SIAC was appropriately posted at the school.  The meeting was scheduled for 6:30 p.m. on January 5th,  a Monday.  The school was closed on January 1st, January 3rd and January 4th.  On the morning of January 5th, notice was emailed to media contacts at 9:19 a.m.

The complaint does not question the validity of the posted notice.  The alleged violation was failure to provide at least 24 hours’ notice to the media.  There is no claim that any media representatives were unable to attend the meeting with only nine hours’ notice.

Iowa Code section 21.4 outlines the requirements for adequate notice:

“(1)….Reasonable notice shall include advising the news media who have filed a request for notice with the governmental body…. (2)(a)  Notice conforming with all the requirements of subsection 1 of this section shall be given at least twenty-four hours prior to the commencement of any meeting of a governmental body unless for good cause such notice is impossible or impractical, in which case as much notice as is reasonably possible shall be given…..”

There is no evidence that any news media filed a request for notice with the SIAC.  Both parties believed that news media had filed a request with the Board, although documentation of that filing was not presented.

The SIAC has otherwise complied with the requirements of Chapter 21 and has held open meetings.  Counsel for the Board argues that the SIAC does not meet the definition of a governmental body, but has chosen to provide notice and access as though it was a governmental body.

Iowa Code section 21.2(1) defines ‘governmental body’ to include:

1. A board, council, commission, or other governing body expressly created by the statutes of this state or by executive order.
2.  A board, council, commission, or other governing body of a political subdivision or tax-supported district in this state.
3. A multimembered body formally and directly created by one or more boards, councils, commissions, or other governing bodies subject to paragraphs “a” and “b” of this subsection.
4.  Those multimembered bodies to which the state board of regents or a president of a university has delegated the responsibility for the management and control of the intercollegiate athletic programs at the state universities.
5.  An advisory board, advisory commission, or task force created by the governor or the general assembly to develop and make recommendations on public policy issues.
6. A nonprofit corporation other than a fair conducting a fair event as provided in chapter 174, whose facilities or indebtedness are supported in whole or in part with property tax revenue and which is licensed to conduct pari-mutuel wagering pursuant to chapter 99D or a nonprofit corporation which is a successor to the nonprofit corporation which built the facility.
7. A nonprofit corporation licensed to conduct gambling games pursuant to chapter 99F.
8.  An advisory board, advisory commission, advisory committee, task force, or other body created by statute or executive order of this state or created by an executive order of a political subdivision of this state to develop and make recommendations on public policy issues.
9. The governing body of a drainage or levee district as provided in chapter 468, including a board as defined in section 468.3, regardless of how the district is organized.
10.  An advisory board, advisory commission, advisory committee, task force, or other body created by an entity organized under chapter 28E, or by the administrator or joint board specified in a chapter 28E agreement, to develop and make recommendations on public policy issues.

Arguably, the SIAC could meet the definition of more than one of the above-listed definition subsections.  The SIAC is established by Iowa Code section 280.12, so it could be a “…governing body expressly created by the statutes of this state…” as defined in subsection 21.2(1)(a).

With the responsibilities outlined by Iowa Code section 280.12, the SIAC could possibly meet the definition of governmental body in subsection 21.2(1)(e), as an advisory board created by the general assembly “to develop and make recommendations on public policy issues.”

The best description of the SIAC is most likely subsection 21.2(1)(h):  “An advisory board, advisory commission, advisory committee, task force, or other body created by statute or executive order of this state or created by an executive order of a political subdivision of this state to develop and make recommendations on public policy issues.”

Counsel for the Board argues that whether the SIAC is a governmental body as defined in Chapter 21 is immaterial, as the ‘gathering’ on January 5, 2015, did not meet the definition of ‘meeting’ pursuant to Iowa Code section 21.2(2):

1. “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.

Counsel relies upon certain language in Mason v. Vision Iowa Board, 700 N.W.2d 349 (Iowa 2005).  In Mason, the Supreme Court stated that policy-making is “more than recommending or advising what should be done.  Policy-making is deciding with authority a course of action.”  Therefore, since the SIAC only makes recommendations and does not have authority to make a decision, there was no meeting by definition.

However, the Mason decision also states:  “Notwithstanding the tension in the statute, we think it is clear the legislature intended to make the delineated advisory groups subject to the open meetings requirement.  Otherwise, the legislature’s act of including these entities in the definition of “governmental body” would be a nullity because none of the restrictions and requirements imposed on “meetings” of a governmental body would apply.”

In addition to establishing the SIAC, Iowa Code section 280.12 outlines the preferred membership of the committee.  The Board has a policy (Code No. 208.2) that requires any committee appointed by the Board to give advance notice of all meetings, hold open meetings, keep minutes of the meetings and designate an official custodian of the minutes.  In other words, Board policy requires compliance with Chapter 21 of the Iowa Code.  Board policy, Code No. 208.1, requires that a committee “will be subject to the open meetings law if the committee is established by statute….”

The Iowa Association of School Board until recently had an Open Meetings Manual available online.  In that Manual, Chapter II, concerning Open Meetings Law, schools were advised:

“Advisory committees established by statute are subject to the open meetings law whether or not they make recommendations on public policy issues.  An example of an advisory committee established by statute and therefore subject to the open meetings law is the IOWA CODE (section) 280.12 committee which develops and reviews the goals and plans of the school district.”

IPIB action

The IPIB has several options upon receipt of a probable cause report.  According to Iowa Administrative Rule 497 - 2.2(4):

“Board action. Upon receipt and review of the staff investigative report and any recommendations, the board may:

a. Redirect the matter for further investigation;

b. Dismiss the matter for lack of probable cause to believe a violation has occurred;

c. Make a determination that probable cause exists to believe a violation has occurred, but, as an exercise of administrative discretion, dismiss the matter; or

d. Make a determination that probable cause exists to believe a violation has occurred, designate a prosecutor and direct the issuance of a statement of charges to initiate a contested case proceeding”.

If the SIAC is considered a governmental body pursuant to Iowa Code, then the responsibility for complying with the statute falls upon the members and leadership of the SIAC, not upon the Board.  Therefore, there would be no probable cause to find that the Board committed a violation of Chapter 21 pursuant to Iowa Code 23.10.  The appropriate IPIB action would be to dismiss the complaint for lack of probable cause.

In order to successfully prosecute a violation of Chapter 21 against the SIAC as an independent governmental body, it would be necessary to prove that a request for notice had been filed with the SIAC.  It would also be necessary to prove that the SIAC is a governmental body and that the ambiguities within the definitions of “governmental body” and “meeting” can be overcome.  Even if the IPIB is not supportive of a dismissal for lack of probable cause, IAR 497-2.2(4)(c) allows for dismissal of this complaint.

The energies of the IPIB may be better served pursuing the legislative proposals that could resolve the ambiguities in the definitions.

Respectfully Submitted this 25th day of September, 2015.

 

Margaret E. Johnson, JD
Deputy Director

 

CC:       IPIB
            Margaret Stoldorf
            Rick Engel, counsel
            Gregory Barnsten, counsel