18FC:0123, 18FC:0124, 19FC:0008, 19FC:0009, 19FC:0011, and 19FC:0013 Joni Butts, David Marsh, Marshall Harpole, Kepler Johnson, Kandi Beaman, and David Morford/Madison County Board of Adjustment - Consolidation and Dismissal Order

Date:
02/21/2019

Subject:
Joni Butts, David Marsh, Marshall Harpole, Kepler Johnson, Kandi Beaman, and David Morford/Madison County Board of Adjustment - Consolidation and Dismissal Order

Opinion:

The Iowa Public Information Board

In re the Matter of: Joni Butts, David Marsh, Marshall Harpole, Kepler Johnson, Kandi Beaman, and David Morford, Complainants And Concerning: Madison County Board of Adjustment, Respondent

Case Numbers: 18FC:0123, 18FC:0124,    19FC:0008, 19FC:0009, 19FC:0011, and 19FC:0013                Order for Consolidation and Dismissal

COMES NOW Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Order to Consolidate six complaints and Dismiss.

Joni Butts filed formal complaint 18FC:0123 on December 18, 2018, alleging that the Madison County Board of Adjustment (Board) violated Iowa Code chapter 21 at a meeting held on December 4, 2018.
 

David Marsh filed formal complaint 18FC:0124 on December 18, 2018, alleging that the Board violated Iowa Code chapter 21 at a meeting held on December 4, 2018.
 

Marshall Harpole filed formal complaint 19FC:0008 on January 14, 2019, alleging that the Board violated Iowa Code chapter 21 at a meeting held on December 4, 2018.
 

Kepler Johnson filed formal complaint 19FC:0009 on January 19, 2019, alleging that the Board violated Iowa Code chapter 21 at a meeting held on December 4, 2018.
 

Kandi Beaman filed formal complaint 19FC:0011 on January 29, 2019, alleging that the Board violated Iowa Code chapter 21 at a meeting held on December 4, 2018.
 

David Morford filed formal complaint 19FC:0013 on February 1, 2019, alleging that the Board violated Iowa Code chapter 21 at a meeting held on December 4, 2018.

All six complaints allege that three members of the five-member Board violated Iowa Code chapter 21 when they gathered together in the third floor conference room on December 4, 2018, without proper notice.  Because the six complaints all concern the same meeting and allege a violation of open meetings law, it is appropriate to consolidate these complaints.

DESCRIPTION OF VIOLATION

The Board scheduled a meeting for December 4, 2018, to review a remand order entered on November 6, 2018, in a district court case in which the Board was the Respondent (Case No. CVCV034821, Madison County District Court).  The remand order required the Board to adopt expanded finding of fact and legal principles to amend a special use permit and variance issued by the Board on July 3, 2018.

A notice of the Board meeting was published in the Winterset Madisonian on November 28, 2018.  The publication listed the date of the meeting as December 4, 2018, with no time noted. The location of the meeting was listed as “Madison County Courthouse, 3rd Floor Courtroom.”

On November 27, 2018, a notice was posted at the courthouse listing the time of the meeting as 7:00 p.m. and noted the same location.  The agenda was included with this notice. The fourth item on the agenda was “Findings of Fact Arbor Hill Wind Farm.”

The Madison County Courthouse has a district court courtroom on the second floor.  This is the room normally used for large gatherings as well as court hearings. The third floor has a conference room that this Board routinely uses for its meetings.  This room has been used as a secondary courtroom when the second floor courtroom is occupied.

Three members of the five member Board gathered in the posted location at the posted time and date.  Also present at this location were the zoning administrator, his administrative assistant, some members of the public, and one of the attorneys for MidAmerican Energy, proponent of the wind farm project.

The other two members, as well as the county attorney and numerous citizens, gathered in the second floor courtroom.  Shortly after 7:00 p.m., the administrative assistant came to the second floor to see if those at that location were planning to attend the Board meeting.

Because of the number of people wanting to attend this meeting, the county attorney suggested that the meeting be moved to the second floor.  The group gathered on the third floor relocated to the second floor and the meeting was then started. There is no allegation that anyone was unable to attend this meeting.

No deliberation or Board action occurred on the third floor according to the Board members.  What conversations that did occur while waiting to commence the Board meeting were in an open setting within the ear shot of those in attendance.  One of the MidAmerican Energy attorneys provided an affidavit stating he spoke only with an audience member who was also waiting on the third floor.

The county attorney provided the audio recording for the Board meeting.  The recording shows that the meeting was called to order at 7:08 p.m., with all five members present.  The first three agenda items (approval of agenda and two prior meeting minutes) were approved unanimously.  The Board then reviewed a draft expansion of the findings prepared by the county attorney and zoning administrator.  

During the Board’s review of the order for expanded findings and legal principles, one member moved to include a section of the county ordinance at issue to explain her reason for dissenting from the original Board approval.  After discussion, she withdrew the motion. A motion was then made to approve the proposed expansion of the findings. A roll call vote was taken and the expanded findings were approved by a three-to-two vote. The meeting adjourned at 7:43 p.m.  During the last few minutes of the recording, various audience members can be heard speaking.

All six complainants confirmed they were each present at the hearing and were able to observe the meeting.  There are no allegations that the action taken at the meeting was changed after the meeting adjourned.
 

The purpose of the meeting was to review the expanded findings and legal principles proposed by the county attorney.  The county attorney reported that he drafted his proposal after reviewing an audio recording of the July 3, 2018.

 

REMEDY REQUESTED

The complainants each requested that the IPIB provide certain remedies:

1. Ms. Butts asked the IPIB to remove the three Board members gathered on the third floor, and terminate the employment of the county attorney, zoning administrator, and the private MidAmerican Energy attorney.

2. Mr. Marsh asked the IPIB to terminate the appointments of the same three Board members and terminate the employment of the zoning administrator.  In addition, he asked the IPIB to request that the district court revoke the intervention of MidAmerican Energy in the district court case.

3. Mr. Harpole asked the IPIB to remove the three Board members who voted in favor of the wind farm project, remove the zoning administrator, and report the county attorney to the Iowa Supreme Court disciplinary board.

4. Mr. Johnson asked the IPIB to find that the three Board members violated Iowa Code chapter 21 and terminate their appointments.  He also encouraged the IPIB to publicly censure the zoning administrator and the county attorney.

5. Ms. Beaman asked the IPIB to send a copy of her complaint to the district court judge involved with the wind farm litigation and remove the MidAmerican Energy attorney from that litigation.  She also requested that the zoning administrator be fired and that the county attorney be “reprimanded...for his part in ‘writing’ the findings of fact” for the Board to review.

6. Mr. Morford asked that the IPIB reprimand the three Board members, the zoning administrator, and the MidAmerican Energy attorney, and that they “be held accountable to the fullest extent of the law.”

 

DISCUSSION

 

Iowa Code section 21.2(1) defines a governmental body.  According to this definition, the Board would be a governmental body required to follow the open meeting laws.  The zoning commissioner, the county attorney, and the attorney for MidAmerican Energy are not governmental bodies and, therefore, not subject to the open meetings laws.  These individuals should be excluded from the consolidated complaints.

 

The Board is properly included in the complaints.  In order for the complaints to have merit, the Board must have conducted a meeting as defined in Iowa Code section 21.2(2):

 

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.

 

There is insufficient evidence to determine that the three Board members who gathered on the third floor engaged in deliberation or took action on any of the agenda items.  It is apparent from the audio recording that all five Board members conducted an open meeting at the second floor location, starting at 7:08 p.m. During this open meeting, Board members officially took action on the four agenda items.

 

A proper notice and agenda was posted at the Madison County Courthouse.   The notice clearly states that the meeting was scheduled to be held in the “courtroom on the third floor”, the same location where the three Board members and the zoning administrator gathered.  While labeled a ‘conference room’ in courthouse signage, the room is also used as a Board meeting room and as a courtroom. The presence of the Board staff at that location gives credence to the position that this was the intended location of the meeting.  

 

Moving the meeting to accommodate the larger audience is not a violation of Iowa Code chapter 21.  There is no allegation that anyone remained on the third floor and missed the Board meeting. All six complainants stated that they were able to attend the meeting and observe the Board’s actions.

 

Iowa Code chapter 21 does not require that a governmental body publish notice of a meeting.  Therefore, the notice published in the newspaper, without a time listed, is not a violation of Chapter 21.  A couple of the complainants noted that when called, the zoning administrator provided the correct time for the meeting.

 

The complainants may want to pursue the remedies sought through the court litigation, or in the case of reporting alleged ethical violations, through other state agencies.  Iowa Code section 23.10(3)(c) specifically states that the IPIB does not have the authority to remove a person from public office.

 

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.  These complaints do not meet those requirements.

 

IT IS SO ORDERED:  Formal complaints 18FC:0123, 18FC:0124, 19FC:0008, 19FC:0009, 19FC:0011, and 19FC:0013 are consolidated and dismissed as legally insufficient and without merit 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 February 21, 2019. 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 February, 2019, to:

 

Joni Butts

David Marsh

Marshall Harpole

Kepler Johnson

Kandi Beaman

David Morford

Matt Schultz, county attorney