Date:
11/18/2021
Subject:
Robert Zagozda/City of Carter Lake - Acceptance Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: Robert Zagozda, Complainant And Concerning: City of Carter Lake, Respondent |
Case Number: 21FC:0090 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:
Robert Zagozda filed formal complaint 21FC:0090 on September 16, 2021, alleging that the City of Carter Lake (City) violated Iowa Code chapters 21 and 22.
Mr. Zagozda alleged that he hand-delivered a public records request to the City clerk on August 17, 2021, requesting copies of the minutes from all City council workshops from January 1, 2021, through August 16, 2021, as well as a copy of the minutes of the meeting or workshop when the mayor presented or discussed a request made by Landscapes, Inc. for a lease extension.
As of the date of the filing of his complaint, no records have been provided, and he has not received a response from the City.
The legal counsel for the City responded to this complaint on October 19, 2021. In the response, he noted that the City did not take minutes at meetings that are labeled âworkshopsâ until August 2021. He added that no formal action is taken at âworkshopsâ.
Workshops are noticed pursuant to Iowa Code chapter 21, and the public is allowed to attend. Legal counsel added that Mr. Zagozda knew that minutes were not kept for âworkshopsâ and that there would be no records responsive to his record request. He added that no one could recall there being any conversation at a regular meeting or at a workshop concerning the lease extension.
Mr. Zagozda replied that he was aware that minutes were not kept of âworkshopsâ, adding that he has attended these meetings and decisions are made during the âworkshopsâ. He stated that he was not informed by the City that there were no records responsive to his request. He alleged that there were several meetings with discussions of the lease since it was first discussed in early 2020.
Iowa Code section 21.2(2) defines a meeting of a governmental body:
2. âMeetingâ 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 bodyâs 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.
Iowa Code chapter 21 does not differentiate between a regular meeting, a workshop, a worksession, a special meeting, or any other word that could be used to describe a gathering of a majority of members to deliberate or take action. If a gathering meets the definition provided by Iowa Code section 21.2(2), then the requirements of Iowaâs open meetings laws must be followed.
Even if no official action is taken at a gathering labeled a âworkshopâ, if deliberation upon any matter within the scope of the Cityâs policy-making duties occurs, then it is a meeting and proper notice and the keeping of minutes is required.
The IPIB discussed the definition of a meeting at length in advisory opinion AO2018-0010, issued on May 17, 2018:
Iowa Code section 21.2(2) defines a meeting as requiring a ââŠgathering 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 bodyâs 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.â....
In 1981, the Iowa Attorney General issued two opinions on this issue. The first opinion cautioned that even when the members of a governmental body gather only to listen to the concerns of others, âdeliberationâ includes âthe discussion and evaluative processesâ of a government body âcharged with a statutory duty of conducting investigationsâ in arriving at an eventual decision or policy. (Artis Reis and the Iowa Civil Rights Commission, Op. Atty. Gen # 81-2-13, February 16, 1981)
Later that year, the Iowa Attorney General stated that a ministerial function could include a situation in which members gather to receive information within the scope of their duties.
âDuring the course of such a gathering, individual members may, by asking questions, elicit clarification about the information presented. We emphasize, however, that the nature of any such gathering may change if either âdeliberationâ or âactionâ, as defined above, occurs. A âmeetingâ may develop, for example, if a majority of the members of a body engage in any discussion that focuses at all concretely upon matters over which they may exercise judgment or discretion.â (James D. OâKane and the Sioux City Community School District, Op. Atty. Gen. # 81-7-4, July 6, 1981)
âŠ(O)nce the gathering has convened, the possibility for an inadvertent violation to occur is a risk your board does not want to take. As noted by the Iowa Court of Appeals in an unpublished decision, âEven absent any intention to deliberate, such discussions could arise effortlessly. We believe the boardâs decision to review the draft in this fashion was a poor one.â Dooley v. Johnson County Board of Supervisors, No. 08-0195, Dec. 17, 2008.
The Dooley decision quoted Hettinga v. Dallas County Board of Adjustment, 375 N.W.2d 293, 295 (Iowa 1985):
âA gathering for âpurely ministerialâ 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. During the course of such a gathering, individual members may, by asking questions, elicit clarification about the information presented. We emphasize, however, that the nature of any such gathering may change if either âdeliberationâ or âactionâ [as defined earlier in the opinion] occurs. A meeting may develop, for example, if a majority of the members of a body engage in any discussion that focuses at all concretely on matters over which they exercise judgment or discretion.â (Emphasis supplied)
Iowa Code section 21.3 requires the keeping of minutes:
Each governmental body shall keep minutes of all its meetings showing the date, time and place, the members present, and the action taken at each meeting. The minutes shall show the results of each vote taken and information sufficient to indicate the vote of each member present. The vote of each member present shall be made public at the open session. The minutes shall be public records open to public inspection.
Until recently, the City has not followed the requirements of Iowa Code chapter 21 for any âworkshopâ. The City would benefit from formal training as part of an informal resolution process.
Iowa Code section 23.8 requires that a complaint be within the IPIBâs 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:0090 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 âdelegate acceptance or dismissal of a complaint to the executive director, subject to review by the board.â The IPIB will review this Order on November 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
_______________________________
Margaret E. Johnson
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of November, 2021, to:
Robert Zagozda
Michael OâBradovich, legal counsel for the City of Carter Lake