Date:
10/21/2021
Subject:
Stan Walk/Mitchell County Economic Development Commission - Dismissal Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: Stan Walk, Complainant And Concerning: Mitchell County Economic Development Commission, Respondent |
Case Number: 21FC:0061
Revised Dismissal Order
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COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Revised Dismissal Order:
On July 8, 2021, Stan Walk filed formal complaint 21FC:0061, alleging that the Mitchell County Economic Development Commission (MCEDC) violated Iowa Code chapters 21 and 22.
Mr. Walk alleged that the MCEDC violated Iowa Code chapter 21 on July 17 and July 18, 2021, when three members of the nine member Commission met to hire the MCEDC director. Mr. Walk was one of the applicants. He met with four individuals (including three MCEDC members) for an interview on June 7, 2021. On June 17, 2021, he heard a rumor that another candidate was hired. He stated this was confirmed by an email he received on June 29, 2021.1
He alleged that he was told on July 17 and 18, 2021, that a MCEDC member received a text on both days asking for support of the candidate who was eventually hired by the full MCEDC membership on August 23, 2021.
On July 18, 2021, Mr. Walk requested an explanation of why he was not selected. He also requested a copy of another candidate’s application. He alleged that he was denied a copy of the application and told that document was confidential. Mr. Walk alleged this is a violation of Iowa Code chapter 22.
Mr. Walk also alleged that he requested copies of all meeting agendas and minutes for the MCEDC as well as the search committee from February through June 2021. He alleged that he had not received those as of July 8, 2021.2
He alleged that on June 24, 2021, he received the agenda for the June 28, 2021, MCEDC meeting and that the agenda did not list the hiring of the director as an agenda item. Mr. Walk alleged that another person had information from the June 28, 2021, meeting to substantiate his complaint.3 He added that he was contacted by the MCEDC on June 29, 2021, and informed that another candidate had accepted the position. This person was introduced as the MCEDC director on July 6, 2021.
The Mitchell county attorney responded to the complaint on July 14, 2021. He stated that at no time did a majority of the nine-member MCDEC meet outside a properly noticed meeting. He stated that the requested minutes were provided to Mr. Walk, as well as the letter required by Iowa Code chapter 35C. The application requested was not released, as it is confidential pursuant to Iowa Code section 22.7(18).4
Legal counsel also provided a copy of the email with the copies of the minutes, as well as copies of emails with the agendas that were sent to Mr. Walk before each meeting of the MCEDC. There were no agendas or minutes for the interviews.
Iowa Code section 22.7(18) states that certain communications are confidential:
18. Communications not required by law, rule, procedure, or contract that are made to a government body or to any of its employees by identified persons outside of government, to the extent that the government body receiving those communications from such persons outside of government could reasonably believe that those persons would be discouraged from making them to that government body if they were available for general public examination. As used in this subsection, “persons outside of government” does not include persons or employees of persons who are communicating with respect to a consulting or contractual relationship with a government body or who are communicating with a government body with whom an arrangement for compensation exists.
As noted on the IPIB website:
The Iowa Supreme Court ruled in April 1988 that under a 1984 amendment to Chapter 22 public agencies can make job applications confidential.
In City of Sioux City v. Greater Sioux City Press Club, 421 N.W.2d 895 (Iowa 1988), a five-member panel of the Iowa Supreme Court ruled that such confidentiality is provided for in subsection 18 of 22.7.
The Court ruled that job applications might be made confidential if the person so requests or if the public agency “could reasonably believe that those persons would be discouraged” from applying if applications were available for public inspection.
While subsection 18 does not provide confidentiality for communications required by law, rule or procedure, the Court stated that job applications were not required as part of the hiring process since the job applicant is applying voluntarily.
In a June 1992 decision, Des Moines Register and Tribune Company v. State Board of Regents and Douglas Creamer, Polk County Judge Arthur Gamble ruled that a private firm that had conducted a presidential search for Iowa State University was wrong in keeping secret the names of candidates who had no objections to disclosure.5
Therefore, it was not a violation of Iowa Code chapter 22 for the resume and application to be withheld from release as a confidential document.
As noted, Mr. Walk has previously received the agendas and received the minutes promptly. The issue of the validity of the hiring of the MCEDC director is not within the jurisdiction of the IPIB.
Mr. Walk raised the issue of whether the group of three MCEDC members who reviewed applications and interviewed the candidates for director violated Iowa Code chapter 21 by failing to follow the requirements of Iowa Code chapter 21.
All governmental bodies are required to follow Iowa Code chapter 21. The MCEDC is required to comply with open meetings laws in this chapter. Certain subgroups of a governmental body can be considered a governmental body as well, such as advisory groups as defined in Iowa Code section 21.2(1)(j):
j. An advisory board, advisory commission, advisory committee, task force, or other body created by an entity organized under chapter 28E, or by the administrator or joint board specified in a chapter 28E agreement, to develop and make recommendations on public policy issues.
The question then becomes whether the group of three MCEDC members consist of a separate governmental body as defined by Iowa Code section 21.2(1)(j). The president of the MCEDC submitted a sworn affidavit outlining the course of events that led to this group being tasked with reviewing applications and interviewing candidates. (See Attachment A.)
In this affidavit, the president affirms that there was no formal action to create this group. Instead, it was discussed that three members could be on the hiring committee. At the August 23, 2021, MCEDC meeting, the motion was made, seconded, and approved to hire the candidate proposed by the interviewing group.6
Committees formed by a governmental body can be considered a governmental body if certain conditions exist. One such condition can be if the committee includes a majority of the parent body. That did not occur in this complaint.
Another condition to be reviewed is whether the committee was formally and directly created and given certain policy or decision-making authority. This has been reviewed in conjunction with the analysis of advisory committees more commonly formed pursuant to Iowa Code sections 21.2(1)(e) and (h).
In Mason v. Vision Iowa Board, 700 N.W.2d 349 (Iowa 2005), the Iowa Supreme Court said that policy-making “is more than recommending or advising what should be done. Policy-making is deciding with authority a course of action.”
The Iowa Attorney General states in a Sunshine Advisory:
The Open Meetings Law is designed to shine light on deliberation and discussion, not just on final decisions. When important steps in deliberation or discussion will take place before an advisory body that is not covered by the Open Meetings Law, advisory bodies should consider whether to follow the Open Meetings Law voluntarily and allow the public to attend and observe. (March 1, 2003)
It is clear that the named respondent, MCEDC, did not violate Iowa Code chapters 21 and 22. Less clear is whether the interview committee should be considered a governmental body, subject to Iowa Code chapter 21. If so, this group violated open meetings law by failing to notice and conduct public meetings. However, the group no longer exists, which would complicate the informal resolution process required by Iowa Code section 23.9.
The MCEDC is responsible for allowing three members to review applications, interview candidates, and hire the director without a formal appointment and without providing clear direction to this group.
Iowa Code section 21.10 requires the appointment authority for a governmental body to provide members with information about Iowa Code chapters 21 and 22. It appears that the MCDEC would benefit from additional training. The IPIB has a power point training available on the IPIB website.7
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.
IT IS SO ORDERED: Formal complaint 21FC:0051 is dismissed as harmless error and, in part, beyond the jurisdiction of the IPIB 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 October 21, 2021. Pursuant to IPIB rule 497-2.1(4), the parties will be notified in writing of its decision.
By the IPIB Executive Director
________________________________
Margaret E. Johnson
1. Mr. Walk included in his complaint that the MCEDC violated Iowa Code section 35C.3 by failing to provide an explanation to him as to why he was not selected. This issue is beyond the jurisdiction of the IPIB pursuant to Iowa Code section 23.1.
2. However, Mr. Walk included with his complaint copies of the MCEDC minutes for the February, March, April, and May meetings. The June meeting had not occurred as of the date of his record request. He also provided a copy of the letter he received on June 30, 2021, outlining the reasons why he was not selected.
3. This individual contacted the IPIB to indicate that she was at that meeting and was told that no one had been hired. She also stated that the MCEDC is a 28E organization and as such is required to follow Iowa Code chapters 21 and 22.
4. Both parties engaged in discussion as to whether the MCEDC is required to comply with Iowa Code chapters 21 and 22. The MCEDC is a non-profit corporation, however, it was formed pursuant to Iowa Code chapter 28E. Therefore, it is a governmental body pursuant to Iowa Code section 21.2(1)(j) and a government body as defined by Iowa Code section 22.1(1) as an “...other entity of this state, ....” Legal counsel for MCEDC argued that the 28E document was never properly filed with the State of Iowa, as required by Iowa Code chapter 28E. However, the MCEDC has continued to operate and hold itself out as a properly formed 28E organization. Therefore, the MCEDC will be held to the requirements imposed by Iowa Code chapters 21 and 22.
5. See this link: https://ipib.iowa.gov/faq/are-job-applications-public-records.
6. It should be noted that when the MCEDC met in August to approve the hiring of the new director, the appointment was made retroactive to June 30, 2021, with salary effective July 6, 2021, supporting the allegation that the three MCEDC members did believe they had the authority to select and hire the director.
7. The Iowa Sunshine Laws powerpoint is at: https://ipib.iowa.gov/documents/iowa-sunshine-law
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of October, 2021, to:
Stan Walk
Mark Walk, Mitchell County Attorney