Date:
07/18/2019
Subject:
Heidi Breitsprecker/Delaware Township Fire District - Probable Cause Report & Order
Opinion:
The Iowa Public Information Board
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In the Matter of: Heidi Breitsprecker, Complainant. and Concerning: Delaware Township Fire District, Respondent |
Case Numbers: 19FC:0014
Probable Cause Order
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This matter comes before the Iowa Public Information Board (IPIB) on this 18th day of July, 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 Delaware Township Fire District (DTFD) violated Iowa Code Chapter 21, but as a matter of administrative discretion dismiss the matter.
The IPIB finds that there is Probable Cause to believe that the DTFD violated Iowa Code Chapter 21, but as a matter of Administrative Discretion under Iowa Administrative Rule 497-2.2 (4) (c) dismisses the matter.
Pursuant to Iowa Administrative Rule 497-2.2 (4) (c), the IPIB enters a finding of probable cause and dismisses the complaint.
So ordered this 18th day of July, 2019.
____________________________
IPIB Chair
CERTIFICATE OF SERVICE
This document was sent by electronic mail on the _______ day of July, 2019, to:
Heidi Brietsprecker (Complainant) email
Nicholas Bailey (Attorney for Respondent) email
Before The Iowa Public Information Board
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In the Matter of: Heidi Breitsprecker, Complainant. and Concerning: Delaware Township Fire District, Respondent. |
Case Numbers: 19FC:0014
Revised Probable Cause Report
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SUMMARY: Upon further review and investigation, the undersigned recommends that the Iowa Public Information Board find probable cause to believe Chapter 21 was violated and determine whether to file a contested case proceeding.
Background Facts
Heidi Breitsprecker filed a complaint on February 4, 2019, alleging that the Delaware Township Fire District (DTFD) violated Iowa Code Chapter 21 by failing to publicly post tentative agendas twenty-four (24) hours prior to meetings.
On February 15, 2019, Nicholas Bailey, the attorney for DTFD, responded. Mr. Bailey argued that the DTFD was exempt from the usual Open Meetings requirements of Iowa Code Chapter 21, because the township trustees are governed by Iowa Code § 359.17. Mr. Bailey said that the DTFD provided tentative agendas at the commencement of the actual meeting, but argued that the DTFD was exempted from providing them twenty-four (24) hours in advance.
Mr. Bailey also provided the agendas for the December 3, 2018, DTFD meeting, the January 14, 2019, DTFD Meeting, and the February 4, 2019, DTFD meeting.
The IPIB accepted the complaint on March 21, 2019. Pursuant to Iowa Code § 23.9, the parties tried to reach an informal resolution, but efforts did not succeed.
Investigation
The following were reviewed: the file of 19FC:0014, Ms. Breitsprecker’s complaint, Mr. Bailey’s response on behalf of DTFD, agendas of recent meetings, Iowa Code §§ 21.2 and 21.4, and Iowa Code § 359.17. In addition, I considered a recent Iowa Court of Appeals case involving DTFD and allegations of inadequate notice provided to Midwest Ambulance, the opposing party. Midwest Ambulance Services v. Delaware DTFD, 17-2074 (Iowa Court of Appeals 2019), March 6, 2019.
In addition, I reviewed DTFD resolutions passed at the DTFD’s May 6, 2019, Board of Trustees meeting and agendas for December 4, 2018, January 14, 2019, and February 4, 2019. All three agendas contained approval of budgets from previous meetings.
Statutory Provisions Involved
Iowa Code § 21.2 defines a meeting as a gathering in person or by electronic means, formal or informal, of a majority of members of a governmental body where there is deliberation or action on any matter within the scope of the governmental body’s policy making duties.
Iowa Code § 21.4(1) holds that:
“. . . A governmental body shall give notice of the time, date, and place of each meeting . . . and the tentative agenda of the meeting, in a manner reasonably calculated to apprise the public of that information.” (Emphasis Added).
Iowa Code § 21.4(2)(a) holds that:
“Except as otherwise provided in paragraph ‘c’, notice conforming with all of the requirements of subsection 1 shall be given at least twenty-four hours prior to the commencement of any meeting of a governmental body unless for good cause such notice is impossible or impractical.”
Iowa Code § 21.4(4) holds that:
“If another section of the code requires a manner of giving specific notice of a meeting, hearing, or an intent to take action by a governmental body, compliance with that section shall constitute compliance with the notice requirements of this section.”
Iowa Code § 359.17(2) requires the DTFD Trustees to provide notice of a meeting if the purpose of that meeting is to discuss, deliberate, or act upon a matter relating to the budget or tax levy. This section specifically states that the notice of the meeting must be posted twenty four (24) hours in advance and shall state the proposed agenda.
Iowa Code §§ 23.6(2)(3)(8) and (9) give the IPIB authority to interpret and enforce Chapter 21.
Analysis
Mr. Bailey admitted in his response on February 15, 2019, that the agendas are provided “at the beginning of each meeting.” He stated in an email on May 9, 2019, the DTFD would post tentative agendas in the future twenty-four (24) hours in advance.
However, Mr. Bailey denies the DTFD erred in failing to post an agenda twenty-four (24) hours in advance. The agenda for January 14, 2019, contains items discussing the DTFD’s budget, specifically approving the December of 2018, budget.
Under Iowa Code § 21.4(4) if another section of the Iowa Code requires a manner of giving specific notice of a meeting, compliance with that other section constitutes compliance with § 21.4. DTFD’s meeting notice is governed by Iowa Code § 359.17 and § 359.17(2). Those sections require the DTFD trustees to post notice of a meeting if the trustees plan discussion, deliberation, or action concerning the budget or tax levy. Iowa Code § 359.17(2) specifically states notice shall be posted by the county auditor in the courthouse public areas twenty-four (24) hours in advance with a proposed agenda. That requirement exists when the DTFD intends to act or deliberate regarding the DTFD’s budget.
Mr. Bailey argued before the Iowa Court of Appeals that the court should void a contract because the DTFD trustees failed to comply with notice requirements of Iowa Code § 359.17 and Iowa Code Chapter 21 in approving the contract several years earlier. Midwest Ambulance Services v. Delaware DTFD, 17-2074 (Iowa Court of Appeals 2019), March 6, 2019. This is of concern because Mr. Bailey argued before the Court of Appeals the DTFD should benefit by having a contract voided for failing to comply with notice requirements in open meetings laws under Iowa Code § 359.17 and Iowa Code Chapter 21.
The evidence shows that a tentative agenda was not posted twenty-four (24) hours in advance. That in itself would meet the standard under Iowa Code § 21.4(4) and § 359.17 for failing to provide proper notice of a meeting.
In this case, DTFD’s rules for notice are governed by Iowa Code § 359.17. Pursuant to Iowa Code Chapter 23 and Iowa Code § 21.4 (4), the IPIB has authority to interpret Iowa Code § 359.17 to determine whether appropriate Iowa Code § 21.4(4) notice was provided. A violation of Iowa Code § 359.17 notice becomes a violation of § 21.4 notice pursuant to § 21.4(4).
The trustees for DTFD passed a resolution during a meeting on March 6, 2019. The Resolution, #2019-05, requires the DTFD to give public notice of DTFD meetings twenty-four hours in advance as Iowa Code § 359.17 requires. The resolution also indicates all the DTFD trustees at DTFD took the online PowerPoint class in Open Meetings and Open Records. The resolution also requires the DTFD in the future to give notice of a proposed agenda per Iowa Code Chapter 21.
The DTFD minutes of May 6, 2019, confirms the trustees took the online Power Point Open Records/Meeting class on the IPIB website and should now know how to comply with notice requirements.
While there is probable cause to find a violation of Iowa Code Chapter 21, the DTFD has taken steps to demonstrate it will provide proper notice twenty four (24) hours in advance. Certainly, as DTFD Trustees, they should have been aware of Chapter 21’s notice requirements before those errors. Due to the recent May 6, 2019, resolutions of the DTFD, there is reason to believe the trustees will comply with the notice requirements of Iowa Code §§ 359.17 and 21.4(4) in the future.
Since the submission of this report on June 17, 2019, Mr. Bailey requested a continuance. I asked both sides in an email shortly after the June 20, 2019, meeting to submit any additional arguments or materials either side wanted me to consider on or before June 28, 2019. No one has filed any additional submissions or contacted me requesting an extension to do so.
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 sub rule 2.1(6) without making a determination as to whether a violation occurred.”
Conclusion/Recommendation
The IPIB has the option of deciding under Iowa Administrative Code § 497-2.2(4)(d) to make a determination that probable cause exists to find a violation of Chapter 21, designate a prosecutor and direct the issuance of charges to initiate a contested case proceeding. However, I recommend that the IPIB find that probable cause exists to believe a violation of Chapter 21 occurred, but as a matter of administrative discretion, dismiss the complaint pursuant to Iowa Administrative Code § 497-2.2(4)(c).
I make this recommendation for a number of reasons. It is clear that the DTFD Board of Trustees has taken a number of steps similar to those in an informal resolution. The steps the trustees have taken, listed herein, supra, demonstrate understanding of the requirement to post a tentative agenda twenty four (24) hours in advance of meetings involving budgetary discussions. It is also clear that in the future, the DTFD intends to comply with Iowa Code § 21.4(4).
Respectfully submitted this ________ day of ____________, 2019.
__________________________
Amanda T. Adams
CERTIFICATE OF SERVICE
This document was sent via electronic or regular mail on this _____ day of ____________, 2019, to the following parties:
Heidi Breitsprecker, Complainant
Nicholas Bailey, Attorney for Respondent