Date:
12/17/2020
Subject:
Eric Henley/Gilbert Comm. School Dist. - Probable Cause Report & Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: Eric Henely, Complainant And Concerning: Gilbert Community School District, Respondent |
Case Numbers: 20FC:0070 and 20FC:0081
Probable Cause Order
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THIS MATTER comes before the Iowa Public Information Board (IPIB) to consider a Probable Cause Report.
The Probable Cause Report recommends that the IPIB determine that probable cause does not exist to believe that the Gilbert Community School District violated Iowa Code chapter 21 by failing to provide access to a school board meeting on July 1, 2020, as alleged in 20FC:0070.
The Probable Cause Report also recommends that the IPIB determine that probable cause does exist to believe that the Gilbert Community School District violated Iowa Code chapter 21 by failing to provide access to a school board meeting on August 12, 2020, as alleged in 20FC:0081.
The Probable Cause Report further recommends that the IPIB dismiss formal complaint 20FC:0070 for lack of probable cause and dismiss 20FC:0081 as an exercise of administrative discretion.
The IPIB finds that there is no probable cause to believe that the Gilbert Community School District violated Iowa Code chapter 21 by not providing access to an open meeting on July 1, 2020.
The IPIB finds that there is probable cause to believe that the Gilbert Community School District violated Iowa Code chapter 21 by not providing access to an open meeting on August 12, 2020.
Pursuant to Iowa Administrative rule 497-2.2(4) the IPIB adopts the findings and recommendations of the Probable Cause Report, enters a finding of no probable cause in 20FC:0070 and a finding of probable cause in 20FC:0081.
Formal complaint 20FC:0070 is hereby dismissed for lack of probable cause pursuant to Iowa Code section 23.10(2).
Formal complaint 20FC:0081 is hereby dismissed as an exercise of administrative discretion pursuant to Iowa Administrative rule 497-2.2(4)(c).
SO ORDERED this 17th day of December, 2020.
________________________________
IPIB Chair
CERTIFICATE OF MAILING
This document was sent by electronic mail on this _____ day of December, 2020, to:
Eric Henely, Complainant
Carrie Weber, legal counsel for the Gilbert Community School District
Before the Iowa Public Information Board
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In re the Matter of: Eric Henely, Complainant And Concerning: Gilbert Community School District, Respondent |
Case Numbers: 20FC:0070 and 20FC:0081
Probable Cause Report
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COMES NOW Zachary S. Goodrich, Legal Counsel for the Iowa Public Information Board (IPIB), and submits this Probable Cause Report.
Background
Eric Henely filed formal complaint 20FC:0070 on July 13, 2020. He alleged that the Gilbert Community School District (District) violated Iowa Code chapter 21 by limiting the number of people present in the room during a school board meeting on July 1, 2020.
Members of the public were allowed to present comments in person at the meeting. However, in order to have less than ten persons in the meeting room, speakers had to wait in an adjacent room until it was their turn to speak.[1] While in the waiting room, it was difficult to hear what was occurring during the meeting.
The IPIB accepted 20FC:0070 on August 20, 2020.
Mr. Henely subsequently filed formal complaint 20FC:0081 on August 23, 2020. He alleged that the District further violated Iowa Code chapter 21 by not providing access to an open meeting.
The August 10, 2020, school board meeting was rescheduled to August 12, 2020, and moved to a new location due to a derecho. On August 12, 2020, Mr. Henely was unable to access the meeting’s livestream on YouTube and arrived at the meeting location to find the doors locked.
The IPIB accepted 20FC:0081 on September 17, 2020. Negotiations already underway for 20FC:0070 were expanded to include 20FC:0081.
Pursuant to Iowa Code section 23.9, the parties negotiated, but were unable to reach an informal resolution. After initial negotiations broke down, a second attempt to informally resolve the matter was made. The District was willing to revise the terms to implement policies that directly addressed the issues in the complaints.
The proposed terms of the revised informal resolution included:
- The parties agree to the acceptance of both complaints based upon the factual situations as described in the Informal Resolution. The District will approve the Informal Resolution at an open meeting and include the terms of this Resolution in its minutes for that meeting.
- At any electronic meeting, the District will allow the public to access the meeting utilizing the same platform from which board members access the meeting. The information necessary for the public to join the electronic meeting (call-in number, meeting ID, etc.) will be included on the agenda for the meeting and posted with a minimum of 24 hours’ notice, as already required by Iowa Code section 21.4(2)(a). At meetings that include public comment, the electronic platform will allow for public comment remotely in accordance with board policy concerning the content and length of any public comment.
- At any in-person board meeting for which physical attendance is limited due to public health and safety measures, contemporaneous electronic access to the meeting for the public will be provided. At meetings that include public comment, the electronic platform will allow for public comment remotely by members of the public in accordance with board policy concerning the content and length of any public comment.
- At any in-person board meeting where members of the public are allowed to physically attend, the District shall designate an individual to confirm the physical board meeting space is accessible to the public. The designee will ensure that the building doors are unlocked no less than ten minutes prior to the start of, and for the duration of the meeting.
- At any meeting where the District is employing technology to provide public access as required by Iowa Code section 21.3 or any intervening emergency declarations, there will be an IT staff member present to ensure that the technology is successfully used as planned and to assist with any technological problems that arise. The IT staff member will conduct a test of the technology before the meeting to ensure it is operational.
If an IT staff member is unable to attend the meeting, they will prepare a detailed set of instructions to ensure an untrained person can successfully use the technology. The set of instructions will include a test of the technology before the meeting begins and troubleshooting tips to assist with problems that could foreseeably arise when using the technology.
- The District Board of Directors and Superintendent will hold a public work session on Iowa’s Open Meetings laws. The work session will be noticed as required by Chapter 21. The session will be conducted by an employee of the Iowa Association of School Boards. Due to the current public health emergency, the work session will take place electronically.
Mr. Henely responded to the revised informal resolution with a proposed new term that purportedly addresses an issue that he experienced at the November 19, 2020, school board meeting. The District did not agree to Mr. Henely’s proposal stating in part that, “The existing terms already address the issues in the Complaint[s].”
Investigation and Analysis
Formal complaint 20FC:0070 alleged two violations of Iowa Code chapter 21. An alleged violation of Iowa Code section 21.8(1)(c) was found, on its face, to be legally insufficient and was not accepted. [2]
The accepted alleged violation of Iowa Code chapter 21 regarded a capacity limitation imposed at the meeting. As a result of the limitation, speakers were socially distanced outside of the meeting room and were unable to participate in the meeting as they could “hear very little.” Due to the social distancing requirements, Mr. Henely alleged that he could not participate in the meeting in real time.
Upon further investigation by IPIB staff pursuant to Iowa Code section 23.10(1), Mr. Henely’s characterization of access to the July 1, 2020, school board meeting appears inaccurate. In his complaint, Mr. Henely stated:
“Iowa Code Chapter 21 gives citizens the right to hear the proceedings of a meeting in real time, not via recording. The essence of this complaint is that the school board required citizens who chose to speak at public forum to surrender their right to hear the meeting in real time under the provisions of Iowa Code Chapter 21.”
Mr. Henely alleged that the meeting was recorded then posted for the public on YouTube after the meeting had concluded, thus preventing contemporaneous participation for those not in the meeting room. However, the meeting was not recorded then posted — it was broadcast live on YouTube.[3] Contemporaneous participation was provided and the link for the livestream was on the agenda.
Formal complaint 20FC:0081 alleged a violation of Iowa Code chapter 21 due to insufficient access in the form of a broken livestream and locked doors. Mr. Henely was unable to watch the YouTube livestream of the August 12, 2020, school board meeting at the link provided in the agenda. He then went to the meeting site to participate in person; however, the building doors were locked. In the meantime, the District had started an alternative livestream on YouTube and had posted the working link on its Facebook page. After returning home from the meeting site, Mr. Henely watched the alternative livestream.
Legal counsel for the District provided detailed explanations for the issues experienced during the August 12, 2020, school board meeting. First, the settings for the doors had been changed from the typical school schedule to being locked full-time (unless overridden by an individual with a key fob) in April when the school closed due to the COVID-19 pandemic.
On the night of the meeting, the doors were unlocked with a key fob an hour before the meeting was scheduled to begin and were thought to have remained unlocked. However, the door settings had automatically reverted from being locked full-time to the typical school schedule. Because of the reversion, the doors locked at 6:00 PM, the time the meeting began. The door programming has been fixed and was characterized by legal counsel as “unforeseeable” and “unintentional.”
Second, the YouTube livestream unexpectedly began streaming from a link different from what was posted on the agenda. Roughly ten minutes into the meeting, the District’s IT staff became aware of the public’s inability to access the livestream through the link on the agenda. IT staff then posted the working link on the District’s Facebook page. Per legal counsel, “From 6:00-6:21, the meeting was streaming at this alternate YouTube link. From 6:21-6:25, the meeting was not being streamed at all while Mr. Holton [IT staff] tried to fix the problem and get the meeting back on the correct YouTube link. From 6:25 through the end of the meeting, the livestream was functioning correctly on the original link provided in the agenda.” A complete recording of the meeting, with the exception of 6:21-6:25 PM, was posted the morning of August 13, 2020.
The exact cause of the technical difficulties is unknown, but may be related to the widespread telecommunications issues experienced in central Iowa due to the August 10, 2020, derecho. In response to the public access issues, the school board postponed ratification of all business conducted at the August 12, 2020, meeting until their next meeting on September 14, 2020.
The District has confirmed that all but one of the provisions in the proposed informal resolution have been implemented, thereby directly addressing the issues which are the basis for formal complaints 20FC:0070 and 20FC:0081.[4]
Conclusion
Upon further investigation, there appears to be no violation of Iowa Code chapter 21 in formal complaint 20FC:0070. Contrary to what was alleged, there was contemporaneous access to the meeting for members of the public.
Upon further investigation, there appears to be a violation of Iowa Code chapter 21 in formal complaint 20FC:0081. However, the violation appears to stem from extraordinary circumstances caused by a pandemic and a derecho.
The issues in the complaints were directly addressed by the terms of the informal resolution. The District, despite no obligation to do so, has implemented every provision to ensure that these issues do not arise again.
IPIB Action
The IPIB has several options upon receipt of a probable cause report. According to Iowa Administrative Rule 497 - 2.2(4):
“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”.
Recommendation
For the aforementioned reasons, I recommend that the IPIB determine that no probable cause exists to believe the District violated Iowa Code chapter 21 as alleged in formal complaint 20FC:0070.
I also recommend that the IPIB determine that probable cause exists to believe that the District violated Iowa Code chapter 21 as alleged in formal complaint 20FC:0081.
I further recommend that formal complaint 20FC:0070 be dismissed for lack of probable cause pursuant to Iowa Code section 23.10(2).
Finally, I recommend that formal complaint 20FC:0081 be dismissed as an exercise of administrative discretion pursuant to Iowa Administrative Code rule 497-2.2(4)(c), as corrective measures have been implemented.
Respectfully submitted this 17th day of December, 2020.
/s/ Zachary S. Goodrich
Zachary S. Goodrich
Legal Counsel
CERTIFICATE OF MAILING
This document was sent by electronic mail on this _____ day of December, 2020, to:
Eric Henely, Complainant
Carrie Weber, legal counsel for the Gilbert Community School District
[1] The ten person limit was a public safety measure in response to the COVID-19 pandemic.
[2] Mr. Henely alleged that the District failed to include in the meeting minutes a statement regarding the reason for an electronic meeting. As noted in the IPIB Acceptance Order, the meeting at issue was not an electronic meeting so there was no need to indicate a reason for an electronic meeting.
[3] YouTube indicates whether a video was streamed live on the site or if the video was merely posted. When watching a video, directly underneath the title lies the number of views and either (1) a date indicating when a video was posted; or (2) the language “Streamed live on [date]” if a video was broadcast live. The video of the July 1, 2020, school board meeting indicates it was streamed live on July 1, 2020.
[4] Term number one (see page 2) has not been implemented because an agreement was not reached by both parties.