Date:
04/16/2020
Subject:
Peggy Staley, Jared Beymer, Beth Ann Vogt/Crawford Co. Firefighters Assn. - Probable Cause Report & Order
Opinion:
The Iowa Public Information Board
|
In re the Matter of: Peggy Staley, Jared Beymer, and Beth Ann Vogt, Complainants And Concerning: Crawford County Firefighters Association, Respondent |
Case Number: 19FC:0101 Probable Cause Order |
This matter comes before the Iowa Public Information Board (IPIB) this 16th day of April, 2020, to consider a Probable Cause Report.
The Probable Cause Report recommends a finding of probable cause and dismissal as the requested records have been released.
In lieu of a finding of probable cause, the IPIB dismisses this complaint as moot as the records have been released.
So ordered this 16th day of April, 2020.
_____________________________________
IPIB Chair
CERTIFICATE OF MAILING
A copy of this document was sent via email on the ________ day of April, 2020, to:
Peggy Staley
Jared Beymer
Beth Ann Vogt
Jessica Zupp, counsel for the Respondent
Before The Iowa Public Information Board
|
In re the Matter of: Peggy Staley, Jared Beymer, and Beth Ann Vogt, Complainants And Concerning: Crawford County Firefighters Association, Respondent |
Case Number: 19FC:0101 Probable Cause Report |
COMES NOW Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and submits this probable cause report.
The attached report recites the language of the Acceptance Order approved on December 19, 2019 (pages one and two). IPIB staff worked with the parties to reach an informal resolution. The parties were unable to reach an informal resolution. However, the Respondent did agree to release the records that were included in the original complaint to the extent that the records still existed. No fees were charged to the complainants.
The Respondent maintains the position that it is not a government body subject to the public records laws of Iowa Code chapter 22. With the release of the records, it is my recommendation that the IPIB make a determination that probable cause exists to believe that a violation has occurred and dismiss this complaint as an exercise of administrative discretion.
Respectful submitted this 16th day of April, 2020:
_________________________________
Margaret E. Johnson, J.D.
Executive Director
A copy of this document was sent via email on the ________ day of April, 2020, to:
Peggy Staley
Jared Beymer
Beth Ann Vogt
Jessica Zupp, counsel for the Respondent
Staley; Beymer; Vogt 19FC:0101 - Crawford Co. Firefighter Assn.
Iowa Public Information Board
April 8, 2020
Background
On August 14, 2019, the three named complainants jointly filed formal complaint 19FC:0101, alleging that the Crawford County Firefighters Association (CCFA) violated Iowa Code chapter 22. The specific complaints state:
- On July 28, 2019, Jared Beyer requested copies of financial records, minutes, and treasurer reports from the CCFA. He alleged that no one responded to his record request.
- In February of 2019, Beth Ann Vogt requested copies of all CCFA minutes for the last three years. Her request was denied on July 17, 2019.
- On August 9, 2019, Peggy Staley requested a copy of an insurance bill. On August 14, 2019, she requested CCFA’s lease agreement with the National Weather Service. Her record requests were denied on August 14, 2019.
On August 27, 2019, counsel for CCFA filed a response to this complaint. The response stated that CCFA does not meet the definition of a government body pursuant to Iowa Code section 22.1(1). He stated that CCFA is a non-profit organization that does not conduct pari-mutuel wagering. He agreed that the CCFA has partnered with a government body, the E-911 Board, to sponsor a grant to replace a communication tower owned by the CCFA, but stated that this partnership did not redefine CCFA as a government body subject to Iowa Code chapter 22.
According to legal counsel, CCFA owns a communication tower and land that CCFA leases to various government bodies to provide their communication systems. Additional information provided to the IPIB indicates that at least one county official serves as property manager for CCFA and that CCFA contracts with various local government bodies to provide government functions.
The Iowa Supreme Court in Gannon v. Board of Regents, 692 N.W.2d 31 (Iowa 2005) held that if a non-profit is created for the purpose of soliciting and providing funds, in this case for the benefit of Iowa State University, it is providing a government function due to the “symbiotic relationship” between the two organizations. In Gannon, the non-profit was considered a government body for the purpose of Chapter 22.
More recently, the Iowa Court of Appeals expanded upon Gannon in an unpublished decision issued July 3, 2019, Diercks v. City of Bettendorf and Kristine Stone, No.18-1068. In that decision, the City contracted with the Iowa Communities Assurance Pool (ICAP) for the defense of tort claims against the City.
The City denied the release of billing records requested by Dr. Diercks, asserting that the requested records were not public records belonging to the City but rather belonged to ICAP. The Court of Appeals applied the “of or belonging to” language of Iowa Code section 22.1(3)(a), as well as an analysis of what constitutes a government function, in determining that the records are public records subject to release.
On November 21, 2019, Duane Zenk, a representative of CCFA, attended the IPIB meeting and spoke on this complaint. Mr. Zenk serves as the property manager for the CCFA and is also the Assessor for Crawford County. He stated at the IPIB meeting that all of the requested records were available to the public. He continued to argue that the CCFA is not a government body, subject to Iowa Code chapter 22.
Of the records requested by the three co-complainants, only the minutes and the financial reports are not publicly available. Therefore, the only records that remain in contention are these records.
Further review of the organizational documents available for public access (such as minutes, leases, emails, correspondence, grants, and financial transactions) indicate that the CCFA currently or in the recent past provided or received service for or contracted with the E-911 Board, the Crawford County Board of Supervisors, the Crawford County Emergency Management Agency, the Crawford County Memorial Hospital, the Iowa Communities Assurance Pool, the Crawford County Land Mobile Radio Advisory Board, the Crawford County Secondary Roads department, various Crawford County fire departments, the Crawford County Assessor, and nine municipalities.
It appears that the CCFA functions in a de facto, informal manner that is similar to an Iowa Code chapter 28E government body, as codified in Iowa Code section 28E.4:
28E.4 Agreement with other agencies. Any public agency of this state may enter into an agreement with one or more public or private agencies for joint or cooperative action pursuant to the provisions of this chapter, including the creation of a separate entity to carry out the purpose of the agreement. Appropriate action by ordinance, resolution or otherwise pursuant to law of the governing bodies involved shall be necessary before any such agreement may enter into force.
The membership of the CCFA board includes three individuals who are employed by or associated with organizations affiliated with the CCFA, further strengthening the position that the CCFA is in fact a government body.
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 meets those requirements.
On December 19, 2019, the Iowa Public Information Board determined that formal complaint 19FC:0101 should be partially accepted as to those records that had not been released pursuant to Iowa Code section 23.8(1) and Iowa Administrative Rule 497-2.1(2)(a). Parties were directed to work with IPIB staff to reach an informal resolution as required by Iowa Code section 23.9. Pursuant to IPIB rule 497-2.1(4), the parties were notified in writing of its decision.
IPIB staff provided a draft resolution to the CCFA and to the complainants. The only term in the proposed informal resolution submitted by IPIB staff was:
The CCFA will release copies of the meeting minutes for 2017, 2018, and 2019, and financial reports for 2017, 2018, and 2019, within 30 days of this agreement’s approval by all parties.
On March 17, 2020, CCFA’s attorney released the records originally requested by the complainants. An informal resolution was not signed. The CCFA has provided appropriate documentation of the release of the records that were the subject of the original complaint.
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:
- Redirect the matter for further investigation;
- Dismiss the matter for lack of probable cause to believe a violation has occurred;
- Make a determination that probable cause exists to believe a violation has occurred, but, as an exercise of administrative discretion, dismiss the matter; or
- 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”.