Date:
11/21/2019
Subject:
Marty Ryan/Iowa Board of Corrections - Revised Dismissal Order
Opinion:
The Iowa Public Information Board
|
In re the Matter of: Marty Ryan, Complainant And Concerning: Iowa Board of Corrections, Respondent |
Case Number: 19FC:0078 Revised Dismissal Order |
COMES NOW Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Revised Dismissal Order.
Marty Ryan filed formal complaint 19FC:0078 on July 1, 2019. He revised his complaint on July 2, 2019. He alleged that the Iowa Board of Corrections (Board) violated Iowa Code chapter 21.
He reported that Iowa Governor Reynolds appointed a director of the Iowa Department of Corrections on June 3, 2019. He alleged that according to Iowa Code section 904.104, the Board has to meet and recommend names to the Governor for this position. He could find no evidence (notice, agendas, minutes) that such a meeting was ever held.
The Board informed Mr. Ryan by email dated May 1, 2019, that the Board did not meet to select candidates for the director position. Instead, three members of the seven member Board prepared the candidate list for the Governor. The email does not state if the three members actually met, if the Board convened this group, or how or when they prepared this list.
The Board’s legal counsel responded to the complaint. The response stated that there was no meeting of the Board as defined by Iowa Code section 21.2(2).
Iowa Code section 21.2(2) defines a meeting as follows:
“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.
Mr. Ryan replied that the fact that three of seven Board members selected the list invalidates the director’s appointment and that this subunit of the Board should be considered a governmental body pursuant to Iowa Code chapter 21.2(1).
No evidence was presented to confirm that the subgroup ever gathered together, that the subgroup had been formally created by the Board and granted authority to make recommendations, or that any meeting occurred within the 60 days prior to the filing of the complaint. Pursuant to Iowa Code section 23.7(1), formal complaints must be filed within 60 days from the time the “alleged violation occurred or the complainant could have become aware of the violation with reasonable diligence.”
The IPIB tabled the original dismissal order at the September 19, 2019, board meeting. Staff was directed to determine the answers to four questions:
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How was it determined that three members of the Iowa Board of Corrections would be tasked with preparing the candidate list to be presented to the Governor? Did this happen at a meeting? Minutes?
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How did this group meet to review all applications submitted? When? Agenda? Minutes?
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Are there any records of the work that this group completed?
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Would it be possible for IPIB staff to make contact with these three individuals to learn more about how they proceeded? Or if you (counsel) would prefer to be present, we could set up a conference call.
The Board answered these questions on November 4, 2019 (see attachment A). Three members of the Board talked via a telephone conference call on April 26, 2019, at which time they discussed and selected the five nominees to the Governor’s staff. They were not formally tasked to do this by the Board. At no time did a majority of the Board meet at an open meeting to complete this statutory duty.
Mr. Ryan submitted a response to the correspondence from the Board on November 12, 2019 (see attachment B). In this response, he stated: “Whether a meeting took place as meeting is defined in Iowa Code Section 21.2(2) is irrelevant.... The fact that a majority of the members of the BOC was not in attendance does not and cannot become a technical loophole to the intent of the Chapter.”
The IPIB cannot ignore the definitions provided by Iowa Code section 21.2 and expand the provisions of Iowa Code chapter 21 beyond what the legislature clearly set as the applicability of the open meetings law. There is no ambiguity with the definition of “meeting” in this factual situation.
Based upon the additional investigation, there does not appear to be a violation of Iowa Code chapter 21.
According to Iowa Code section 23.1, IPIB jurisdiction is limited to matters arising under Iowa Code chapters 21 and 22. The validity of the appointment pursuant to Iowa Code section 904.104 is beyond IPIB jurisdiction.
Iowa Code section 23.8 requires that a complaint be within the IPIB’s jurisdiction, appear legally sufficient, and have merit before the IPIB accepts a complaint. This complaint does not fulfill those requirements.
IT IS SO ORDERED: Formal complaint 19FC:0078 is dismissed as legally insufficient pursuant to Iowa Code section 23.8(2) and Iowa Administrative Rule 497-2.1(2)(b). The IPIB does not have the authority to determine whether the appointment was proper.
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 November 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 November, 2019, to:
Marty Ryan
H. Lorain Wallace, AAG, counsel for the Iowa Board of Corrections