18FC:0028 Brian Jacob/Woodward-Granger Board of Education - Third Probable Cause Report & Order

Date:
12/13/2018

Subject:
Brian Jacob/Woodward-Granger Board of Education - Third Probable Cause Report & Order

Opinion:

Before The Iowa Public Information Board

In re the Matter of: Brian Jacob,  Complainant And Concerning: Woodward-Granger Board of Education,  Respondent

Case Number: 18FC:0028                       Third Probable Cause Report

COMES NOW Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and submits this Third Probable Cause Report:

On April 6, 2018, Brian Jacob filed this formal complaint against the Woodward-Granger Board of Education (Board) alleging four violations of Iowa Code chapter 21 on October 2, 2017, February 12, 2018, February 19, 2018, and April 2, 2018.  He alleged that the Board violated Iowa Code sections 21.5 and 21.4(1)(a) by holding improper closed sessions.

At the February 12, 2018, meeting, the Board voted to go into exempt sessions pursuant to Iowa Code section 21.9.  The first session appears to be a proper exempt session. Chapter 21 does not apply to an exempt session. On its face, the second session did not appear to be a proper exempt session.  This could be a violation of Iowa Code section 21.5.

At the February 19, 2018, meeting, the Board went into an exempt session pursuant to Iowa Code section 21.9.  The agenda does not list an exempt session. The minutes indicate an exempt session, but no specific reason for the exempt session.

The IPIB accepted this complaint as to these two allegations on May 17, 2018.  Two other allegations were dismissed. The IPIB staff was directed to work with the parties to reach an informal resolution of the complaint pursuant to Iowa Code section 23.9.

Terms for an informal resolution were proposed by IPIB staff.  The Board indicated a willingness to complete training. Mr. Jacob declined a proposed informal resolution.

As part of the formal investigation process, IPIB reviewed the agendas and minutes of the two meetings. It continued to be unclear whether the February 12, 2018, meeting was a closed session or an exempt session.   The agenda lists the session as an exempt session under Iowa Code section 21.9, but did not provide any further description.

A Board member present at this session provided a signed statement to indicate that the two sessions were properly conducted exempt sessions (Exhibit A).  There is no evidence to indicate that her statement is inaccurate.
 

The Board agreed to a statement that required an acknowledgement that there was a violation of Chapter 21 when the Board did not include sufficient notice of the exempt sessions on its agenda.  However, Iowa Code section 21.9 specifically exempts such session from Chapter 21:

 

21.9 Employment conditions discussed.

A meeting of a governmental body to discuss strategy in matters relating to employment conditions of employees of the governmental body who are not covered by a collective bargaining agreement under chapter 20 is exempt from this chapter. For the purpose of this section, “employment conditions” mean areas included in the scope of negotiations listed in section 20.9.

The pivotal question then becomes whether Iowa Code section 20.9(1) and 21.9 were applicable to the discussions that occurred at the two questioned ‘exempt’ sessions.

Iowa Code section 21.9 refers to Iowa Code section 20.9 for the definition of “employment conditions.”  This is the term used to identify the proper subjects for an exempt session.

Section 21.9 defines the scope of negotiations to include  “wages, hours, vacations, insurance, holidays, leaves of absence, shift differentials, overtime compensation, supplemental pay, seniority, transfer procedures, job classifications, health and safety matters, evaluation procedures, procedures for staff reductions, in-service training, grievance procedures for resolving any questions arising under the agreement, and other matters mutually agreed upon.”

The statement from the Board member describes the February 12, 2018, session’s purpose to review “whether an investigation that the High School Principal had been assigned was being conducted in a timely fashion.”  The purpose of the February 19, 2018, session was to discuss “issues surrounding communication matters within the middle school and discussion relative to ways to make lines of communication within the middle school improve.”

The Board provided a copy of the information sheet provided by the Iowa Association of School Boards (IASB)  to assist schools in properly holding an exempt session (Exhibit B).  As noted by the district superintendent, the Board contacted the IASB to determine whether the Board’s actions were proper.

The broad term “employment conditions” referenced in Iowa Code section 21.9 would appear to include the topics discussed during the two questioned sessions.  The IASB information sheet provided to the Board at that time (Exhibit B) does not provide a definition of this term.

The IASB then issued an updated information sheet at the Board’s request (Exhibit C).  This updated version more accurately references “employment conditions” to be defined as outlined in Iowa Code section 20.9.  The Board may not have chosen to conduct exempt sessions with the guidance provided by the updated version.

The Board continues to follow the guidelines of Board counsel and IASB to ensure compliance with Iowa Code (Exhibit D).

The Board also agreed to a proposed remedial plan that included this statement:

 

Attorney Kirke Quinn (or his designee) shall provide and present a training to the School Board, any School Board staff that may contribute to the drafting of tentative agendas and minutes, and the Superintendent.  The IPIB will forward copies of training materials and copies of the Open Meetings, Open Records Handbook for the Attorney’s and School Board’s training use.

 

This statement was presented at the July 19, 2018, meeting and signed by all five members of the Board.  In addition, the minutes of this meeting list the statement and the unanimous approval of the acknowledgements and remedial plan.  

On September 11, 2018, Siobhan Schneider, Policy/Legal Services Director for the Iowa Association of School Boards (IASB) met with the Board and relevant staff to conduct a training on open meetings and public records.  The agenda and minutes of the open meeting and a letter received from Ms. Schneider confirm this.

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;

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; or

e. Direct administrative resolution of the matter under subrule 2.1(6) without making a determination as to whether a violation occurred.”

 

Subrule (e), above references subrule 2.1(6), which states:

“2.1(6) Administrative resolution. To assist with resolving complaints in an informal and expeditious manner, the board may, at any time during the complaint process, order administrative resolution of a matter by directing that a person take specified remedial action. A board order directing remedial action shall constitute final agency action for purposes of judicial review under Iowa Code chapter 17A.”

Recommendation

It is questionable whether there is probable cause to believe there was a violation of Iowa Code chapter 21.  This Board took appropriate steps to ensure compliance with the Code. This Board willingly cooperated with the IPIB to remedy any shortcomings.  The Board requested and received updated guidance from the IASB and legal counsel to avoid future compliance concerns. There is no further benefit to be reached by a finding of probable cause or the filing of a contested case.

I would recommend that the IPIB make a determination that there is no probable cause to believe a violation of Iowa Code chapter 21 has occurred and dismiss this complaint pursuant to Iowa Code section 23.10 and Iowa Administrative Rule 497 - 2.2(4)(b).  The Board has taken steps to ensure there are no future concerns with Chapter 21 compliance.

By the IPIB Executive Director

 

_________________________________

Margaret E. Johnson, J.D.

 

CERTIFICATE OF MAILING

    

This document was sent by electronic mail on the ___ day of December, 2018, to:

 

Brian Jacob

Woodward-Granger School Board, Kirke Quinn, counsel

 

 

The Iowa Public Information Board

In re the Matter of: Brian Jacob,  Complainant And Concerning: Woodward-Granger Board of Education,  Respondent

Case Number: 18FC:0028                           Probable Cause Order

 This matter comes before the Iowa Public Information Board (IPIB) this 13th day of December, 2018, to consider a Probable Cause Report.

The Probable Cause Report recommends that the IPIB determine that probable cause does exist to believe that the Woodward-Granger Board of Education violated Iowa Code chapter 21.
 

The Probable Cause Report also recommends that the IPIB dismiss this complaint as an exercise of administrative discretion as appropriate remedial actions have been taken by the Respondent.

 

The IPIB finds that there is probable cause to believe that the Woodward-Granger Board of Education violated Iowa Code chapter 21.  The IPIB further finds that remedial actions have been taken and that it is appropriate to exercise administrative discretion and dismiss this complaint.

 

Pursuant to Iowa Administrative Rule 497-2.2(4)(c) the IPIB adopts the findings and recommendations of the Probable Cause Report, enters a finding of probable cause, and dismisses this complaint.

 

So ordered this 13th day of December, 2018.

 

_____________________________________

IPIB Chair

CERTIFICATE OF MAILING

    

This document was sent by electronic mail on the ___ day of December, 2018, to:

 

Brian Jacob

Woodward-Granger School Board, Wendi Tolan, counsel