Date:
10/21/2021
Subject:
William Byars/Adair City Council - Acceptance Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: William Byars, Complainant And Concerning: Adair City Council, Respondent |
Case Number: 21FC:0081
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:
William Byars filed formal complaint 21FC:0081 on August 22, 2021, alleging that the Adair City Council (Council) violated Iowa Code chapter 21 on June 30, 2021.
Mr. Byars alleged that on June 30, 2021, three members of the five member Council met with the Mayor, city attorney, and police chief to tour a new construction house site and to discuss if the construction met proper standards and whether the City of Adair should make the final payment to the construction company. He alleged that no notice, agenda, or minutes were posted or prepared.
In response to the formal complaint, the city attorney responded that the gathering did not meet the definition of a meeting pursuant to Iowa Code section 21.2(2), as the purpose of the meeting was ministerial. He also provided a copy of the May 26, 2021, Council minutes. The minutes for that meeting state:
“Council took a break and went to the Jensen & Sons home in the Crawford addition to complete a walk-through inspection. No action was taken.
“Council reconvened at City Hall at 7:40.
“Discussion and possible action if needed for the walk-through inspection at the Jensen & Sons home in Crawford Addition.”
At that time, the Council voted to have the home inspected professionally and provide a report to the counsel.
No official notice, agenda, or minutes were prepared for the June 30, 2021, gathering and walk-through.1
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.
The minutes from the May 26, 2021, Council meeting make clear that the issues surrounding the quality of construction on the city-owned property were significant and go beyond a purely ministerial duty. The Iowa Supreme Court and the Iowa Attorney General have provided guidance on the use of this provision of the Iowa Code, as summarized in a Frequently Asked Question on the IPIB website:
A gathering of a majority of members for purely ministerial purposes is excluded from the Act’s coverage because a ministerial matter by definition excludes exercising any discretion about policy matters. Clear examples are the members’ signing of letters or documents whose contents have been approved in a prior, formal open meeting, or school board members attending graduation ceremonies.
Questions about “ministerial” functions and information-gathering trips by governmental bodies have been addressed in Attorney General’s opinions, including Cook to Pellett and Crabb, 79-5-14, Stork to Reis, 81-2-13, and Stork to O’Kane, 81-7-4.
The last opinion notes, “… It appears that gathering for ‘purely ministerial purposes’ may include a situation in which members of a governmental body gather simply to receive information upon a matter within the scope of the body’s policy making duties. … We emphasize, however, that the nature of any such gathering may change if either ‘deliberation’ or ‘action’ … occurs. A ‘meeting’ may develop … if a majority of the members of a body engage in any discussion that focuses at all concretely on matters over which they may exercise judgment or discretion.”
In Dooley v. Johnson County Bd. of Sup'rs. (2008 WL 5234382), the Iowa Court of Appeals ruled that the board did not violate the open meetings law when members met privately with a consulting company to review a preliminary draft of a report, asked questions and elicited clarification. However, the Court noted, “Gathering for this purpose appears dangerously close to ‘deliberation.’ Even absent any intention to deliberate, such discussions could arise effortlessly. We believe the board's decision to review the draft in this fashion was a poor one.”
The law provides latitude by exempting “ministerial” and “social” functions from coverage by Chapter 21, but plainly the latitude must be drawn narrowly to be consistent with Chapter 21’s mandate for openness. (Emphasis added.)
In addition, the fact that more than one tour of the city-owned property was necessary and that there was at least one subsequent meeting (August 11, 2021) during which the Council met in closed session pursuant to Iowa Code section 21.5(1)(c) to discuss litigation strategy with counsel on the matter, also suggests that the June 30, 2021, gathering was actually a meeting as defined by Iowa Code and proper notice, agenda, and minutes were required.
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 meet those requirements.
IT IS SO ORDERED: Formal complaint 21FC:0081 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 appropriate informal resolution to resolve the complaint pursuant to 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 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
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Margaret E. Johnson
1. The city attorney also provided additional comments about other issues which are not relevant to the issues raised by this complaint.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of October, 2021, to:
William Byars
Clint Fichter, Adair city attorney