Date:
04/15/2021
Subject:
Kay Bergren/Otho City Council - Dismissal Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: Kay Bergren, Complainant And Concerning: Otho City Council, Respondent |
Case Number: 21FC:0018
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 March 7, 2021, Kay Bergren filed formal complaint 21FC:0018, alleging that the Otho City Council (Council) violated Iowa Code chapter 21 on March 2, 2021.
Ms. Bergren alleged that on March 2, 2021, the Council held a meeting at the City Hall. Due to Covid-19 safety concerns, the Council has been holding electronic meetings, with public access to the meeting by telephone. On this date, Ms. Bergren alleged that the meeting ended at 6:43 p.m., at which time the telephone access ended. At this time, she drove to City Hall, where she observed that members of the Council remained inside City Hall. She waited until all members left at 7:38 p.m.
In addition, she alleged that a similar violation occurred on February 18, 2021. On that date, the meeting ended at 6:10 p.m. A friend told her that vehicles were still at City Hall at 7:12 p.m., so she called City Hall at 7:13 p.m. and left a message on the answering machine.
Legal counsel for the Council provided a response to the complaint. He stated that members did go into the shop following the meeting to look at “the progress that the maintenance worker had made and (look) at a new sign on the pop can bin.” He provided signed statements from all Council members and the Mayor affirming that no deliberations or actions took place and that the gathering was considered ministerial or social.
Counsel added that there was no Council meeting scheduled for February 18, 2021. There was a meeting scheduled on February 15, 2021, which lasted less than 12 minutes. Counsel provided links to recordings of both meetings. Neither recording provided any relevant information for this complaint.
Iowa Code section 21.2(2) provides the definition of a meeting:
2. “Meeting” means a gathering in person or by electronic means, formal or informal, of a majority of the members of a governmental body where there is deliberation or action upon any matter within the scope of the governmental body’s policy-making duties. Meetings shall not include a gathering of members of a governmental body for purely ministerial or social purposes when there is no discussion of policy or no intent to avoid the purposes of this chapter.
There is no evidence that the Council engaged in deliberation or took action following either properly conducted meeting. The conversations recorded at the March 2, 2021, meeting would support the statements that members viewed signage and maintenance progress following that meeting. This could properly be described as a ministerial act.
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 does not fulfill those requirements.
IT IS SO ORDERED: Formal complaint 21FC:0018 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 April 15, 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
1. Ms. Bergren provided photos that she took showing vehicles parked at a building between 7:27 p.m. and 7:37 p.m. on March 2, 2021.
2.She also stated that she has a copy of a recording of the March 2, 2021, meeting. She alleged that during this meeting, the Mayor engaged in rude and unprofessional comments, which she recorded. This is not a violation of Iowa Code chapter 21.
3. Counsel also stated that other comments made by Ms. Bergren do not describe any violations of chapter 21 (no public comment, no informational packet prepared, comments made by the Mayor). The City of Otho is the subject of an accepted complaint concerning a public record violation. As a term of informal resolution, the Council will participate in training on open meetings and public records laws.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of April, 2021, to:
Kay Bergren
Brian Yung, legal counsel for the Otho City Council