Date:
11/19/2020
Subject:
Cindy Anderson/Fairfax City Council - Dismissal Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: Cindy Anderson, Complainant And Concerning: Fairfax City Council, Respondent |
Case Number: 20FC:0107
Dismissal Order
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COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order.
On October 16, 2020, Cindy Anderson filed formal complaint 20FC:0107, alleging that the Fairfax City Council (Council) violated Iowa Code chapter 21 at a meeting on August 18, 2020.
The Council held the August 18, 2020, meeting electronically by telephone. On the agenda was a public hearing concerning rezoning issues. Copies of the agenda and minutes from the Council website indicate that the agenda item was properly noticed and then discussed at the meeting.
Ms. Anderson alleged that the meeting violated Iowa Code section 21.4(1)(b) in that it was not accessible to her and others. She stated that the weather event, a derecho, on August 10, 2020, impacted access to electricity and to internet access. She stated that ideally she would like the IPIB to order another hearing, but realized that may not be possible as a landowner had gone forward with a project in reliance of the action taken at the meeting. Therefore, she requested the imposition of a “significant fine.”
On October 27, 2020, Ms. Anderson added that the meeting included action on rezoning that violated Iowa Code section 414.6.
Legal counsel for the Council responded to the complaint on November 4, 2020, and filed a motion to dismiss the complaint. The response provided documentation that the meeting was conducted properly:
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Notice and the Agenda for the meeting was properly posted on August 4, 2020, at the city library, the post office, and at city hall. In addition, notice was published in the newspaper on August 5, 2020.
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Comments from the public were accepted prior to the meeting. Meeting packets were available at city hall, although none were requested in advance of the meeting.
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Council records show that 33 people participated by telephone at the meeting. This number was consistent with telephone participation in May, June, and July.
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There were no outages at city hall and no impact to access to the meeting due to the derecho the week earlier.
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The procedures allowed by the Governor’s Proclamation issued October 16, 2020, were properly followed.
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Ms. Anderson is incorrect in her analysis of the requirements of Iowa Code section 414.6.
Counsel also stated that the IPIB does not have statutory authority to determine if the city has properly followed the zoning requirements of Iowa Code chapter 414.
Iowa Code section 21.3 states that meetings shall be conducted in open session:
Meetings of governmental bodies shall be preceded by public notice as provided in section 21.4 and shall be held in open session unless closed sessions are expressly permitted by law. Except as provided in section 21.5, all actions and discussions at meetings of governmental bodies, whether formal or informal, shall be conducted and executed in open session.
Iowa Code section 21.4(1)(b) requires that meeting “be held at a place reasonably accessible to the public and at a time reasonably convenient to the public….”
Governor Kim Reynolds, by proclamation, has temporarily modified Chapter 21 to allow for electronic meetings pursuant to Iowa Code section 21.8 be held “provided that the governmental body provides a means for the public to participate by telephone or electronically as provided in this section.”
If a governmental body is using a conference call to conduct an open meeting, the governmental body must allow public access to the meeting. The agenda for this meeting properly provided for public access to the meeting. The agenda notes that anyone unable to call-in on the telephone number provided could text for assistance.
Iowa Code section 21.4(1)(b) requires that the place for a meeting be “reasonably accessible.” The week between the derecho and the meeting provided a reasonable period of time for citizens to arrange access to a telephone to attend the meeting.
Iowa Code section 23.1 provides the IPIB with the authority to review complaints concerning Iowa Code chapters 21 and 22. That jurisdiction does not extend to the enforcement of zoning requirements outlined in Iowa Code chapter 414.
There is insufficient evidence supporting the allegation of a violation of Iowa Code chapter 21, as modified by the Governor’s Proclamation.
Iowa Code section 23.8(1) 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 does not meet those requirements.
IT IS SO ORDERED: Formal complaint 20FC:0107 is dismissed as legally insufficient 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 November 19, 2020. Pursuant to IPIB rule 497-2.1(4), the parties will be notified in writing of its decision.
By the IPIB Executive Director
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Margaret E. Johnson, J.D.
1. Ms. Anderson said she agreed that the meeting was properly noticed.
2. See section 109 of the Governor’s Proclamation dated October 16, 2020.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of November, 2020, to:
Cindy Anderson
Brian Fagan, legal counsel for the Fairfax City Council