18FC:0103 Juanita Murphy/Monroe County Board of Supervisors - Probable Cause Report & Order

Date:
04/18/2019

Subject:
Juanita Murphy/Monroe County Board of Supervisors - Probable Cause Report & Order

Opinion:

Before The Iowa Public Information Board

In the Matter of: Juanita Murphy, Complainant. and Concerning: Monroe County Board of Supervisors,  Respondent

Case Number:           18FC:0103           Probable Cause Report

 

SUMMARY:  Upon further review and investigation, this complaint is legally insufficient.  Iowa Code Section 21.4 as interpreted by courts requires evidence of a deliberative and evaluative process in addition to a conversation about something within a Board’s powers and duties.  There is evidence of some type of conversation between the Monroe County Board of Supervisors Members Amoss and Hughes concerning Ms. Murphy’s employment actions outside of the posted meetings.  However, it is very difficult to prove the substance of the conversation.  There is not enough evidence to move forward with a contested case at this stage, but there exists some evidence of questionable conversations.

A.  Background Facts

Juanita Murphy filed a formal complaint, 18FC:0103 on October 29, 2018.  She alleged that the Monroe County Board of Supervisors violated Iowa Code Chapter 21, on or before August 30, 2018.  The Iowa Public Information Board accepted her complaint on December 13, 2018.

1.  Steps Taken in Investigation

The undersigned reviewed Ms. Murphy’s original complaint, legal counsel’s response, additional correspondence from Ms. Murphy and her counsel, numerous documents related to another case between Ms. Murphy and her former employer at the Iowa Civil Rights Commission; questioned both lawyers about facts; and reviewed viewed detailed email records.  The undersigned also reviewed affidavits from the Board of Supervisors through their counsel.

2.  Facts Revealed Through Investigation

Ms. Murphy alleged two of the three Board of Supervisors met in person, online, or electronically, and deliberated.  During that alleged meeting, Ms. Murphy alleged the two supervisors agreed to terminate her employment as Zoning Administrator.  Her actual employment as Zoning Administrator for Monroe County was terminated in a formal meeting with notice on September 4, 2018.  Ms. Murphy says she did not become aware of the alleged improper meeting until August 30, 2018. 

The Monroe County website verifies that: “The Monroe County, Iowa, Board of Supervisors consists of three members elected at large.  The Board of Supervisors is the legislative body of the county.” Therefore, two out of three Supervisors communicating constitutes a majority.

Ms. Murphy alleged Supervisor Dennis Amoss told her on August 30, 2018, he had spoken with Supervisor John Hughes concerning the agenda item involving her and he was “on board.”  Ms. Murphy interpreted that to constitute an admission that Mr. Amoss and Mr. Hughes conducted an illegal meeting discussing the merits of terminating her employment prior to the actual open meeting on September 4, 2018. 

Legal counsel for the Board of Supervisors Ann Smisek admitted that Mr. Amoss did say he agreed with Supervisor Hughes about “the issue.”  However, Ms. Smisek said that Mr. Amoss said he agreed with Mr. Hughes about going forward with a meeting on September 4, 2018, and about seeking advice from counsel, rather than the decision to terminate Ms. Murphy’s employment as zoning administrator.

Ms. Murphy stated that there was no deliberation at the board meeting on September 4, 2018.  She also said that that Mr. Hughes said it did not matter what was said on September 4, 2018, after she requested a continuance.  She said Mr. Hughes said, “It isn’t going to change the outcome.”  She questioned how Mr. Hughes knew the outcome of terminating her employment prior to the Board Members’ vote if he had not discussed it prior to the September 4, 2018, meeting with other board members.

Ms. Smisek said that Mr. Hughes interviewed another citizen and obtained a tape recording of the July 31, 2018, meeting where someone complained about Ms. Murphy’s performance.  Supervisor Dennis Amoss also listened to the tape recording of the July 31, 2018, meeting after Mr. Hughes obtained the tape recording. 

Mr. Hughes admits in paragraphs 18 and 19 of his affidavit that he received a copy of the recording of citizens complaining about Ms. Murphy from Dustin Dowdy.  Mr. Hughes said he provided the recording to the other Supervisors and that Mr. Amoss listened to it.  Some conversation concerning the subject of Ms. Murphy’s employment, at least the existence of a tape, occurred between July 31, 2018, and August 30, 2018.  There was no meeting noticed.

The undersigned reviewed email records of Mr. Hughes and Mr. Amoss for the past year provided by Ms. Smisek. There was no email record of Mr. Hughes and Mr. Amoss discussing Ms. Murphy’s continued employment.  The undersigned asked Ms. Murphy’s counsel if she had any further evidence of when, or how, an illegal meeting discussing her continued employment occurred, or the extent of it.  Nothing was provided.

Mr. Hughes also admitted in his Affidavit, paragraphs 4-13, that Ms. Murphy requested a meeting with himself and Mr. Amoss, which took place on August 17, 2018.  At the meeting, the Supervisors requested and/or commanded Ms. Murphy to make changes to zoning policy.  This could constitute a quorum or deliberation, but the undersigned asked both sides about whether this meeting was the one about which Ms. Murphy complained. 

Ms. Murphy did not mention an August 17, 2018, meeting in her complaint or the supporting documents provided before she retained Attorney Gayla Harrison to represent her.

The undersigned repeatedly sought clarification on this matter from Ms. Murphy’s attorney Gayla Harrison.  I asked Ms. Harrison for confirmation that Ms. Murphy was not complaining about the August 17, 2018 meeting, but she has not responded.

Something that happened more than sixty (60) days in the past is beyond the jurisdiction of IPIB under Iowa Code § 23.7 if a complaint is not filed within that time.

B.  Substantive Laws

Iowa Code § 21.2 (2) defines a “meeting” as 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 a governmental body’s policy making duties. Iowa Code § 21.4 requires a government body to give notice of the time, date, and place of each meeting at least twenty four hours in advance, by posting the notice in a prominent place easily accessible to the public.

However, not all conversations or gatherings between government body members constitute meetings within Chapter 21.  Iowa Courts have interpreted a meeting as a gathering in person or electronically when members of the government body begin deliberative discussions and evaluations of their policy making duties, whether or not a vote is taken.  Hutchison v. Shull, 878 N.W. 2d 221, 237 (Iowa 2016); Olinger v. Smith, 892 N.W. 2d 775, 780-781 (Iowa Court of Appeals 2016). 

C.  Legal Analysis

There is no direct evidence of the details contained in any conversations between Mr. Hughes and Mr. Amoss.  In order to find probable cause, there should exist evidence that ‘deliberation’ within the meaning of Iowa Code Section 21.2 (2) occurred during any conversations between Mr. Murphy and Mr. Amoss.  Hutchison v. Shull, 878 N.W. 2d 221, 237 (Iowa 2016); Olinger v. Smith, 892 N.W. 2d 775, 780-781 (Iowa Court of Appeals 2016).  Deliberation means formal evaluative processes within policy making duties of a government body.  Id.

D.  Conclusion

The undersigned has reviewed extensive emails spanning several months between Supervisors Hughes and Amoss.  The undersigned asked for evidence of an electronic “meeting” on social media and receiving nothing.  The undersigned reviewed documentation and Affidavits from the Board of Supervisors Members. 

The undersigned concludes that there was some limited conversation between Supervisors Hughes and Amoss about Ms. Murphy which was not noticed.  This is not to suggest that it is impossible that deliberation did occur, but there exists no evidence to prove anything but minimal conversation.

 

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:

1.  Redirect the matter for further investigation;
2. Dismiss the matter for lack of probable cause to believe a violation has occurred;
3. Make a determination that probable cause exists to believe a violation has occurred, but as an exercise of administrative discretion, dismiss the matter;
4. 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
5. Direct administrative resolution of the matter under sub rule 2.1(6) without making a determination as to whether a violation occurred.”

Sub rule (e) above references sub rule 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 a final agency action for purposes of judicial review under Iowa Code Chapter 17A.”

The Iowa Public Information Board website defines the agency’s meaning of probable cause.  http:///www.ipib.gov.  Probable cause is not specifically defined in Chapters 21, 22 and 23. Pearson v. DMPS, 14FC:0027. 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.”  Pearson v. DMPS, 14FC:0027.

 

Once probable cause is found by the IPIB, the IPIB can determine at a contested case proceeding that the complaint has merit and may issue “any appropriate order to ensure enforcement….” (section 23.10(3))  Court enforcement of Chapter 22 requires a finding of violation by a preponderance of the evidence, a higher burden of proof than probable cause.  Diercks v. Malin, 894 N.W. 2d 12 (2016). Pearson v. DMPS, 14FC:0027.  Practically speaking, the IPIB should review a case based upon the preponderance of the evidence standard, along with consideration of any defenses under section 23.11, such as harmless error, defenses in 22.7 (confidential records) or defenses in 22.9 (release of public records would result in a denial of federal funds).  Pearson v. DMPS, 14FC:0027.

 

Recommendation

The undersigned recommends that the IPIB either making a finding that there exists lack of Probable Cause to believe a violation occurred, or find probable cause a violation occurred, but as a matter of administrative discretion dismiss the matter.  Any successful prosecution would involve overcoming the challenges involved in not having access to details of conversations between Board of Supervisors Members.  Iowa Administrative Rule 497-2.2 (4)(b), 497-2.2 (4)(c).

Respectfully submitted this ­­­­­­­­­­­­­­___________day of April, 2019.

 

                                                                                                ______________________________

                                                                                                Amanda T. Adams

 

CERTIFICATE OF SERVICE

 

This document was sent via electronic or regular mail on this ______ day of April, 2019 to the following parties:

 

Gayla Harrison, Counsel for Complainant, email

Ann Smisek, Legal Counsel for Supervisors, email

 

The Iowa Public Information Board

 

In re the Matter of: Juanita Murphy, Complainant And Concerning: County of Monroe, Respondent

Case Number: 18FC:0103                         Probable Cause Order

 

This matter comes before the Iowa Public Information Board (IPIB) on this 18th day of April, 2019, to consider a Probable Cause report.

The probable cause report recommends that the IPIB determine that probable cause does exist to believe that the County violated Iowa Code Chapter 21.

The IPIB finds that there is Probable Cause to believe that the County violated Iowa Code Chapter 21. 

Pursuant to Iowa Administrative Rule 497-2.2 (4) (c), the IPIB enters a finding of probable cause and dismisses the complaint as an exercise of administrative discretion.

So ordered this 18th day of April, 2019.

 

____________________________

IPIB Chair

CERTIFICATE OF SERVICE

This document was sent by electronic mail on the _______day of April, 2019, to:

Gayla Harrison, Attorney for Complainant (email)
Ann Smisek, Counsel for Respondent (email)