Date:
10/18/2018
Subject:
Mike Jensen/Delmar City Council - Dismissal Order
Opinion:
The Iowa Public Information Board
|
In re the Matter of: Mike Jensen, Complainant And Concerning: Delmar City Council, Respondent |
Case Number: 18FC:0076 Dismissal Order |
COMES NOW Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order.
Mike Jensen filed formal complaint 18FC:0076 on September 13, 2018, alleging that the Delmar City Council (Council) violated Iowa Code chapter 21 on August 8, 2018.
Mr. Jensen alleged that the Council voted to approve a building purchase with Mr. Jensen and his wife, Heather, at the August 8, 2018, meeting.
On August 29, 2018, the Jensens were informed through their attorney that the City of Delmar would not proceed any further with the purchase. At the next meeting on September 12, 2018, Ms. Jensen attended the meeting and was informed that the “council had discussed and then decided not to pursue the project after the August meeting via electronic and in person methods and that no public meeting to discuss the issues was ever held,” according to the complaint.
Mr. Jensen alleged that this informal discussion constituted a meeting pursuant to Iowa Code chapter 21 and should have been properly noticed pursuant to that chapter.
In response, the Council, through their attorney, advised that at the August meeting the Council directed the Mayor to investigate the possible purchase on behalf of the Council. The Mayor conducted her review and determined that the purchase should not be further pursued. This was shared with the city attorney who then advised the attorney for the Jensens of this decision.
At the September 12th meeting, when Ms. Jensen asked about the Mayor’s decision, the Council supported the Mayor’s decision on behalf of the city. The city attorney furthered advised that the Mayor had contacted each Council member individually telephone prior to the meeting to state her opinion, but no meeting occurred as defined by Iowa Code.
Iowa Code section 21.2(2) defines a meeting:
2. “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.
The IPIB has questioned the wisdom of contacting individual members of a governmental body to discuss government business outside a duly noticed open meeting. In an advisory opinion, IPIB AO 2018-0010, the use of “serial” submajority sessions was discussed:
The process … is not a per se violation of open meetings laws, but it does compromise the spirit of Chapter 21, as stated in Section 21.1, Intent – declaration of policy: ‘This chapter seeks to assure, through a requirement of open meetings of governmental bodies, that the basis and rationale of governmental decisions, as well as those decisions themselves, are easily accessible to the people. Ambiguity in the construction or application of this chapter should be resolved in favor of openness.’
The Iowa Supreme Court has also opined that the definition requires that ‘temporal proximity exist among members of the governmental body’ for there to be an actual gathering. (See Telegraph Herald, Inc., v. City of Dubuque, 297 N.W.2d 529, 534 (Iowa 1980))
While each proposed session does not include a majority of the seven member board, if the submajority group engages in deliberation on its policy-making duties, it would appear that the meetings are intentionally designed to avoid the policy of Chapter 21.
In 1981, the Iowa Attorney General issued two opinions on this issue. The first opinion cautioned that even when the members of a governmental body gather only to listen to the concerns of others, ‘deliberation’ includes ‘the discussion and evaluative processes’ of a government body ‘charged with a statutory duty of conducting investigations’ in arriving at an eventual decision or policy. (Artis Reis and the Iowa Civil Rights Commission, Op. Atty. Gen # 81-2-13, February 16, 1981)”
In the factual situation of this complaint, there was not a time when a majority of the five council members met with the Mayor. However, it could appear that the decision was intended to be reached outside the presence of the public.
Whether the Council can delegate the decision to a Mayor and not require the full Council to affirm the Mayor’s decision is an issue not addressed in Chapter 21. It would have been a more transparent practice for the Mayor to have placed the matter on the agenda of a Council meeting and allowed a public discussion and decision.
The Mayor is not a governmental body as defined by Iowa law. A meeting of the actual governmental body, the Council, did not occur. Therefore, there is not a violation of Iowa Code chapter 21.
Iowa Code section 23.8 requires that a complaint be within the IPIB’s jurisdiction, appear legally sufficient, and could have merit before the IPIB accepts a complaint. This complaint does not meet all of those requirements.
IT IS SO ORDERED: Formal complaint 18FC:0076 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 October 18, 2018. Pursuant to IPIB rule 497-2.1(4), the parties will be notified in writing of its decision.
By the IPIB Executive Director
_________________________________
Margaret E. Johnson, J.D.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of October, 2018, to:
Mike Jensen
Billy Coakley, city attorney