15FC:0061 12/17/2015 William Grunder / Princeton City Council - Probable Cause Report and Order

Date:
12/17/2015

Subject:
William Grunder / Princeton City Council - Probable Cause Report and Order

Opinion:

Before the Iowa Public Information Board

SUMMARY:  Formal complaint filed by William Grunder against the Princeton City Council (Council) alleging email discussions between Council members resulted in an electronic meeting and further alleging that Council members did not have a record retention policy for emails.  Recommend a finding of no probable cause to file a contested case proceeding pursuant to Iowa Code section 23.10.  Recommend dismissal of the complaint.

BACKGROUND

On July 14, 2015, William Grunder filed a formal complaint with the Iowa Public Information Board (IPIB) alleging that the City of Princeton City Council (Council) violated Iowa Code Chapters 21 and 22.  Specifically, he alleged that the Council violated Iowa Code section 21.8 by sending emails to each other discussing a policy matter before the Council without following the requirements for an electronic meeting.

Additionally, he alleged that he requested copies of emails from all the council members and the mayor on June 17, 2015.  As of July 14, 2015, only two council members responded to the request for public records.

The emails he received from two of the council members include a string of email communications initiated on May 14, 2015, at 8:19 a.m., by the City Clerk A.J. Grunder and sent to all council members and the mayor.  A “reply to all” was sent by a council member at 9:43 a.m. on May 15, 2015.   In this email, he stated his opinion about the issue and suggested alternative action.  Three days later (May 18th at 6:32 p.m.), another council person sent an email with her opinion.  Additional email discussion was sent on May 20th at 7:02 a.m.  At 1:14 p.m. on that date, an email was sent that began “Ok here is how the light thing will be going” with a resolution to the issue presented.

Another email circulated at 1:54 p.m. that same day with a supportive opinion noted.  The entire email communication on the issue occurred over a period of 6 days.

DISCUSSION

While “walking quorums” are not specifically disallowed by Iowa law, a round-robin discussion by email can be different.  “Walking quorums”, by definition, do not include situations when all members are connected while the deliberation occurs.  Conference calls and email discussions can or do have members connected by electronic devises.  The ability to have a give and take conversation happens with electronic connections, but does not with a walking quorum.  Even when there may not be ‘temporal proximity’ with email communication, the ability to have an extended deliberation is the essence of email connections.

The City has been very cooperative and did not dispute the facts.  There is no clear-cut court ruling that would outlaw the behavior that occurred in this instance, although the City acknowledges the concern that such an activity could result in an electronic meeting occurring.

As to the secondary complaint concerning record release:  Mr. Grunder did receive emails from some council members and the Mayor.  Once council member stated she did not retain her emails.  Some of the emails were duplicates from two council members.  According to the form attached to the records released, the request was made on June 17, 2015, and records released on July 14, 2015.  The Council could have made more effort to collect and release the emails sooner.  It appears that Mr. Grunder received duplicate copies of the same email conversation from Council members.

The Iowa Public Information Board (IPIB) accepted this complaint on August 20, 2015.  Iowa Code section 23.9 requires the IPIB to “promptly work with the parties, through employees of the board, to reach an informal, expeditious resolution of the complaint.”  The following informal resolution was proposed by IPIB staff:

1. The City Council acknowledges that contemporaneous email communications among council members can be considered an electronic meeting, requiring compliance with Iowa Code 21.8.   The Council agrees to follow the guidance of the IPIB, as set forth on the IPIB website:  “Members of governmental bodies should be cautious about discussing public business among themselves extensively outside of public meetings.  Citizens become frustrated when they feel they are being shut out of the decision-making process by public officials they suspect are conducting government business and striking deals outside of the public eye.”
    
2. The IPIB will provide copies of the Iowa Open Meetings, Open Records Handbook to the City.
    
3. The City will consult with the Iowa League of Cities to consider appropriate policies concerning record release and email communications.
    
4. City council members, the mayor and city staff shall review the training PowerPoint on the IPIB website (www.ipib.iowa.gov).
    
5. When the remediation plan is formally adopted by the City, this document shall be included in the minutes of that meeting.

The above provisions shall be completed by November 30, 2015, and a report of completion will be filed with the IPIB staff on December 4, 2015. Upon successful completion of the remediation plan, the IPIB shall dismiss the complaint as resolved with no additional sanctions.

The Council agreed to the terms of the informal resolution and approved it on October 8, 2015.  The minutes of that meeting reflect this action.

The Complainant agreed to the terms only if additional terms requiring a specific record resolution policy were added:

As I stated earlier I would agree to a remediation plan in which the city implements a records retention policy.  I propose the following in addition to the five step plan that the city council unanimously voted to adopt but apparently not to adhere. 

Elected and appointed officials along with city staff will be assigned city owned email accounts.  The email provider will save all emails for an agreed upon amount of time.  The City Clerk will be the administrator of the program and will be responsible for monitoring the compliance of all stakeholders.  Stakeholders will agree to use only the city owned email accounts when communicating electronically about anything connected to the city including electronic communications with constituents.  Stakeholders will agree not to circumvent the records retention process by communicating city business via txt, twitter or other forms of electronic communication not covered by the records retention policy. 

Because chapter 22 of the Iowa Code does not require a specific record retention policy, this provision was not included in the proposed remediation plan.  Instead, term (3) requires the Council to consult with the League of Cities concerning record retention and email communications.  The League of Cities has sample policies to assist cities.  The Council agreed to seek assistance on these issues.

The Council has completed all terms of the proposed remediation plan.  Training was conducted by the City Attorney on November 12, 2015, with the Council members, mayor, city clerk, an incoming council member, and several Council committee chairs in attendance.  This meeting was also published in the official minutes.

RECOMMENDATION

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”.

Probable cause is not specifically defined in Chapters 21, 22 and 23.  A different section of the Iowa Code defines probable cause as “reasonable suspicion”; it is defined in legal dictionaries as the “apparent facts discovered through logical inquiry that would lead a reasonably intelligent and prudent person to believe that an accused person has committed a crime, thereby warranting his or her prosecution, or that a cause of action has accrued, justifying a civil lawsuit.”

There is insufficient evidence to establish probable cause for a violation of Iowa Code section 21.8.  While it is certainly best practices to avoid the use of “reply all” in email communications, the six day time period in this complaint probably does not meet the “gathering” requirement in the definition of a “meeting” under Iowa Code section 21.2(2)).  (See also Telegraph Herald v. City of Dubuque, 297 N.W.2d 529, 534 (Iowa 1980), for the comment on “the legislature's apparent intent that temporal proximity exist among members of the governmental body” for a gathering to occur.)

As noted earlier, there is not a requirement under Chapter 22 to establish a record retention policy nor is there a requirement for cities to use specific email accounts or communication methods.  Therefore, there is no probable cause to determine that a violation of Chapter 22 occurred.

Based upon investigation of the complaint, I recommend that the IPIB determine that probable cause does not exist to believe that the Princeton City Council violated Iowa Code Chapter 21 or 22 and dismiss this complaint.   Should the IPIB determine that probable cause does exist for a violation of Chapter 21, I would recommend dismissal as the Council successfully completed the terms of the proposed informal resolution.

The IPIB may also determine that further guidance should be provided to governmental bodies concerning email communications with the issuance of an administrative rule or formal opinion.

Respectfully submitted this 30th day of November, 2015.

Margaret E. Johnson, JD
Deputy Director

Cc:       IPIB
            William Grunder
            City of Princeton
            Mikkie Schiltz, city attorney