Date:
02/18/2021
Subject:
Mark Kuhn/Floyd County Bd. of Supervisors - Acceptance Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: Mark Kuhn, Complainant And Concerning: Floyd County Board of Supervisors, Respondent |
Case Number: 20FC:0128
Acceptance Order
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COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Acceptance Order:
On December 16, 2020, Mark Kuhn filed formal complaint 20FC:0128, alleging that the Floyd County Board of Supervisors (Board) violated Iowa Code chapter 21 on December 8, 2020.
Mr. Kuhn stated that on December 7, 2020, the Board held a work session with an agenda item entitled “Review/Action coronavirus (COVID-19) issues as applicable.” On December 8, 2020, the Board held an open meeting with this same agenda item. He alleged that this agenda item was legally insufficient as used on December 8, 2020.
During this meeting, the Board discussed whether to initiate a mask mandate as part of this agenda item. Mr. Kuhn alleged that the Board did not discuss the concerns Mr. Kuhn had raised the day before on this issue. He was not allowed to present his comments during the meeting. A motion was made to implement a mask mandate, but died for lack of a second.
The Board then proceeded to discuss and adopt two motions concerning the modification of signage displaying public safety measures in place concerning COVID-19. Mr. Kuhn stated that the Board announced that an assistant county attorney had been consulted and had opined that the agenda item allowed the Board to consider the signage issues, but was not sufficient to deliberate or take action on the mask mandate.
Mr. Kuhn provided documentation to substantiate his allegations:
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An FAQ published by the IPIB on the issue of proper drafting of an agenda.
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Seven months of prior agendas and minutes of meetings when the same agenda item was listed.
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The minutes of the December 7, 2020, meeting.
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The agenda and minutes of the December 8, 2020, meeting.
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The December 14, 2020, meeting minutes.
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Seven pages of emails between Floyd County officials, Mr. Kuhn, and others concerning the issue of the mask mandate and the insufficiency of the agenda wording at issue.
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The COVID-19 screening sign and checklist.
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The text from a newspaper article by Bob Steenson of the Charles City Press
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The agenda for the December 14, 2020, meeting.
The Board filed a response to the complaint through legal counsel. Legal counsel stated that the Board had reviewed this issue prior to the filing of this complaint and determined that the agenda item was sufficiently descriptive. Counsel quoted from an Iowa Supreme Court decision:
Thus, the issue to be resolved is not whether the notice given by the governmental body could have been improved, but whether the notice sufficiently apprised the public and gave full opportunity for public knowledge and participation. In determining whether the public was sufficiently apprised, we may consider the public's knowledge of an issue and actual participation in events in light of the history and background of that issue.
Although not noted in the Board’s response, in KCOB/KLVN, the Iowa Supreme Court then considered that the “sufficiency of the detail on the tentative agenda must be viewed in the context of surrounding events,” including the fact that the same agenda item had been on a previous agenda and previously discussed. (At 173). The Supreme Court then determined that an agenda item listed as “Industries Council - Mr. Jack Lipovac” was sufficiently detailed to encompass a discussion of the firing of the named individual.
In this matter, an agenda item entitled “Review/Action coronavirus (COVID-19) issues as applicable” had been used over the last seven months to deliberate and take action upon various issues. The agenda item became a ‘catch-all’ phrase to encompass anything that could be related to coronavirus protection.
If this was the first time this agenda item had appeared on an agenda, it might have been sufficient to address all aspects of coronavirus issues. However, in this instance, an assistant county attorney advised the Board that the agenda item had been consistently used to address signage at the courthouse and considering a mask mandate went beyond the scope of the agenda item. Additional description was needed to be compliant with Iowa Code chapter 21.
As used on the December 8, 2020, Board agenda, the agenda topic did not sufficiently advise the public that a mask mandate would be considered.
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 meets those requirements.
IT IS SO ORDERED: Formal complaint 20FC:0128 is accepted pursuant to Iowa Code section 23.8(1) and Iowa Administrative Rule 497-2.1(2)(a). Parties shall cooperate with IPIB staff to reach an informal resolution as provided in Iowa Code section 23.9.
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 February 18, 2021. 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. Cf. Keeler v. Iowa State Bd. of Pub. Instruction, 331 N.W.2d 110, 111 (Iowa 1983). Quoting from KCOB/KLVN, Inc. v. Jasper Cty. Bd. Of Sup’rs, 473 N.W.2d 171, 173 (Iowa 1991).
2. In March 2002, the Iowa Attorney General issued a ‘Sunshine Advisory’ recommending governmental bodies draft agendas with adequate detail: Officials and citizens alike should remember: Meeting agendas are the public's invitation to watch government in action. So, agendas should take care to describe the specific actions to be taken and matters to be discussed in public meetings.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of February, 2021, to:
Mark Kuhn
Dustin Zeschke, legal counsel for the Floyd County Board of Supervisors