Date:
09/21/2017
Subject:
Kimberly Nelson/City of Emerson - Dismissal Order
Opinion:
The Iowa Public Information Board
|
In re the Matter of: Kimberly Nelson, Complainant And Concerning: City of Emerson, Respondent |
Case Number: 17FC:0055 DISMISSAL ORDER |
COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order.
Kimberly Nelson filed complaint 17FC:0055 on July 24, 2017, alleging that the Emerson City Council (City) had violated Iowa Code chapter 21. She alleged that she received a telephone call from a city council member reporting that three of the city council members (out of a membership of five) were in favor of granting an extension on a city utility bill.
Ms. Nelson stated that the city policy outlines the procedure for the granting of an extension. The policy gives the city clerk this authority, not a city councilmember. Ms. Nelson was the city clerk at this time.
Ms. Nelson prepared a document for the city council member to sign verifying her actions and instruction to grant an extension, in opposition to city policy. The city council member signed the document, but no other city official would. The document was not returned to Ms. Nelson.
The allegation is that the initial city council member separately contacted two other council members to seek approval for the waiver. There is no information that a quorum of the council gathered together at a meeting as defined by Iowa Code section 21.2(2). There is also no evidence that the initial city council member contacted other members individually on this issue.
A response was provided by the City through the city attorney. In that response, the city attorney noted that a meeting, as defined by Iowa Code section 21.2(2) is 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 government body’s policymaking duties….” In addition, he observed that there were no allegations that a majority of the members gathered either in person or electronically.
Whether the city council member violated the city policy governing utility bills is not an issue governed by Iowa Code chapter 21 or 22. Therefore, the IPIB does not have jurisdiction over this issue. (See Iowa Code section 23.1)
Ms. Nelson has subsequently been terminated from her position as city clerk. This, too, is not an issue within the jurisdiction of the IPIB.
Iowa Code section 23.8(1) requires that a complaint be within the IPIB’s jurisdiction, appear legally sufficient, and have merit before the IPIB accepts a complaint. This complaint is within the jurisdiction of the IPIB, but is legally insufficient.
IT IS SO ORDERED: Formal complaint 17FC:0055 is dismissed as legally insufficient pursuant to Iowa Code section 23.8(2) and Iowa Administrative Rule 497-2.1(2)(b).
Pursuant to Iowa Administrative Rule 497-2.1(3), the IPIB may “delegate acceptance or dismissal of a complaint to the executive director, subject to review by the board.” The IPIB will review this Order on September 21, 2017. Pursuant to IPIB rule 497-2.1(4), the parties will be notified in writing of the decision.
By the IPIB Executive Director
_______________________________
Margaret E. Johnson
Dated this 14th day of September, 2017.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the 14th day of September, 2017, to:
IPIB
Kimberly Nelson
Matt Woods, city attorney