Date:
05/20/2021
Subject:
Mark Kuhn/Floyd County Board of Supervisors - Informal Resolution Report & 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
Informal Resolution Order
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This matter comes before the Iowa Public Information Board (IPIB) this 20th day of May, 2021, to consider the Acceptance of an Informal Resolution.
The IPIB accepted the complaint against the Floyd County Board of Supervisors on February 18, 2021. Pursuant to Iowa Code section 23.9, the parties negotiated and reached a proposed Informal Resolution.
The Board has reviewed the informal resolution and approves it pursuant to Iowa Administrative Rule 497-2.4(3). The IPIB chair is directed to sign the Informal Resolution on behalf of the IPIB.
The parties have 60 days to complete the proposed terms from today’s date. If the terms of the Informal Resolution are completed, the IPIB will dismiss the complaint.
_______________________________
IPIB Chair
CERTIFICATE OF SERVICE
This document was sent by electronic mail on the _________ day of ___________, 2021, to:
Mark Kuhn
Dustin Zeschke, legal counsel for the Floyd County Board of Supervisors
Before 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
Informal Resolution Report
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COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and respectfully submits this Informal Resolution Report:
On December 16, 2020, Mark Kuhn filed formal complaint 20FC:0128, alleging that the Floyd County Board of Supervisors violated Iowa Code chapter 21.
The IPIB accepted the complaint on February 18, 2021, and directed IPIB staff to assist the parties in adopting an informal resolution. The parties have approved an informal resolution as described in the attached report by Brett Toresdahl, IPIB deputy director.
The terms of the informal resolution are to be completed within 60 days of acceptance by all parties. Upon showing proof of compliance, the IPIB shall dismiss this complaint as successfully resolved.
It is recommended that the IPIB approve the proposed informal resolution, direct the IPIB chair to sign the informal resolution, and set the matter for compliance review in accordance with the terms of the informal resolution.
Respectfully submitted,
Margaret E. Johnson, J.D.
Executive Director
CERTIFICATE OF SERVICE
This document was sent by electronic mail on the _________ day of ___________, 2021, to:
Mark Kuhn
Dustin Zeschke, legal counsel for the Floyd County Board of Supervisors
Mark Kuhn, Complainant
And
Floyd County Board of Supervisors, Respondent
Case Number: 20FC:0128
Informal Resolution Report
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:
- An FAQ published by the IPIB on the issue of proper drafting of an agenda.
- Seven months of prior agendas and minutes of meetings when the same agenda item was listed.
- The minutes of the December 7, 2020, meeting.
- The agenda and minutes of the December 8, 2020, meeting.
- The December 14, 2020, meeting minutes.
- 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.
- The COVID-19 screening sign and checklist.
- The text from a newspaper article by Bob Steenson of the Charles City Press
- 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.
The Iowa Public Information Board (IPIB) accepted the formal complaint on February 18, 2021, as to the violation of Iowa Code section 21 and specifically 21.4(1)(a), violation of the requirements to reasonably apprise the public of agenda items to be considered at an open meeting.
Pursuant to Iowa Code 23.9, the parties negotiated and reached an informal resolution.
The parties agree to the following terms:
- The Board will acknowledge during an open meeting that the requirements for posting an agenda that provides adequate notice was not met, and this acknowledgement be recorded in the minutes of said meeting. Specifically, making a motion on the mask mandate should have included a more specific agenda description, and been posted 24 hours in advance of the meeting.
- The Board will work with the Auditor to develop a procedure for drafting detailed agendas in compliance with Iowa law. A copy of the procedure will be provided to the IPIB.
- The Board shall conduct training during an open meeting for all Board members and, the Auditor on Iowa Code chapters 21 and 22 (Sunshine Laws). Other county officials are encouraged to attend the training. The Board may utilize the powerpoint training available on the IPIB website. The Board shall work with their attorney or the Iowa State Association of Counties to provide the training to the Board and any other county officials.
- ‘Catch-all’ agenda items, such as “Review/Action regarding coronavirus (COVID-19) issues as applicable”; “Review/Action regarding Law Enforcement Center/Courthouse contracts and change orders as applicable”; and, “Update/Review/Action regarding Law Enforcement Center/Courthouse project” need to comply with Iowa Code section 21.4(1)(a) to reasonably apprise the public of agenda items to be considered at an open meeting. To the extent the Board is aware of specific action items to be considered, such agenda items should be modified or a separate agenda item added to reasonably apprise the public of the issues to be discussed.
- The Board shall approve this resolution during an open meeting and include the full text in the minutes of said meeting, and publish said resolution according to Iowa law. Said minutes with the inclusion of the text of the resolution shall be provided to the IPIB.
The terms of this informal resolution will be completed within 60 days of acceptance by all parties. Upon showing proof of compliance, the IPIB shall dismiss this complaint as successfully resolved.
The Floyd County Board of Supervisors approved the informal resolution on April 13, 2021 at their meeting.
Mr. Kuhn approved the informal resolution on March 31, 2021.
The IPIB Deputy Director recommends that the IPIB approve the informal resolution and authorize the IPIB Chair to sign the informal resolution on behalf of the IPIB.
By the IPIB Deputy Director
_________________________________
Brett J. Toresdahl