21FC:0119, 22FC:0004, 22FC:0021 Ernie Abell/Arispe City Council - Final Order

Date:
05/19/2022

Subject:
Ernie Abell/Arispe City Council - Final Order

Opinion:

 

The Iowa Public Information Board

In re the Matter of:   Ernie Abell, Complainant   And Concerning:   Arispe City Council, Respondent

Case Numbers:                21FC:0119, 22FC:0004 and 22FC:0021                            Probable Cause Order

 

This matter came before the Iowa Public Information Board (IPIB) on May 19, 2022, to review the Probable Cause Report and enter an Order based upon such review.

The Probable Cause Report recommends that the IPIB determine that probable cause does exist to believe that the Arispe City Council (Council) violated Iowa Code chapter 21.  The Report also recommends that the IPIB dismiss the formal complaints as an exercise of administrative discretion.

Upon review and consideration of the Probable Cause Report, the IPIB enters the following findings and order pursuant to Iowa Administrative Rule 497-2.2(4)(a-d):

_______ Finds that there is insufficient evidence to enter an order and redirects the matters for further investigation.

_______ Finds that there is a lack of probable cause to believe a violation has occurred and dismisses the matters.

____XX___ Finds that probable cause exists to believe a violation has occurred, but, as an exercise of administrative discretion, dismisses the matters.

_______ Finds that probable cause exists to believe a violation has occurred, designates a prosecutor, and directs the issuance of a statement of charges to initiate a contested case proceeding.

 

So ordered this 19th day of May, 2022.

 

_____________________________________

IPIB Chair

 

CERTIFICATE OF MAILING

This document was sent by electronic mail on the ___ day of May, 2022, to:

Ernie Abell

Meggen Weeks, attorney for Arispe City Council

 

 

Before The Iowa Public Information Board

In re the Matter of: Ernie Abell, Complainant And Concerning: Arispe City Council,  Respondent

Case Numbers:           21FC:0119, 22FC:0004 and 22FC:0021             Probable Cause Report

COMES NOW Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and submits this probable cause report.

BACKGROUND

The attached report (Attachment 1) provides information from the formal investigation conducted by Brett Toresdahl, deputy director, concerning the allegations made of violations by the Arispe City Council (Council).  Mr. Toresdahl was able to review records provided by the Council concerning the allegations, interview witnesses, and review copies of minutes and agendas.

The Council participated in the negotiations for the resolution of this complaint through informal resolution pursuant to Iowa Code section 23.9 and signed a proposed informal resolution.  The complainant was unwilling to agree to an informal resolution.

Mr. Toresdahl oversaw the completion of the goals set by IPIB staff to remediate the violations.

CONCLUSION

It is clear from the results of the formal investigation that the alleged violations were committed by the Council.  However, since that time the Council has worked diligently, with the assistance of the IPIB and of the League of Cities, to develop policies and procedures to guard against future violations and to properly train the Council and staff.

IPIB ACTION

The IPIB has several options upon receipt of a probable cause report. According to Iowa Administrative Rule 497 - 2.2(4):

“Upon receipt and review of the staff investigative report and any recommendations, the board may: 

a.  Redirect the matter for further investigation;

b.  Dismiss the matter for lack of probable cause to believe a violation has occurred;

c.   Make a determination that probable cause exists to believe a violation has occurred, but, as an exercise of administrative discretion, dismiss the matter; or

d.  Make a determination that probable cause exists to believe a violation has occurred, designate a prosecutor and direct the issuance of a statement of charges to initiate a contested case proceeding”.

RECOMMENDATION

For the aforementioned reasons, I recommend the IPIB determine probable cause exists to believe the Arispe City Council violated Iowa Code chapter 21 as alleged in formal complaint 21FC:0119, 22FC:0004, and 22FC:0021 and as noted by the formal investigation of this complaint.

I further recommend that the IPIB, as an exercise of administrative discretion, dismiss these complaints pursuant to Iowa Administrative Rule 497 - 2.2(4)(c). 

Respectfully submitted this 19th day of May, 2022, by:

Margaret E. Johnson, J.D.

Executive Director

CERTIFICATE OF MAILING

 This document was sent by electronic mail on this _____ day of May, 2022, to:

  Ernie Abell

  Meggen Weeks, legal counsel for the Arispe City Council

 

May 5, 2022

Ernie Abell/Arispe City Council – 21FC:0119, 22FC:0004, 22FC:0021

Probable Cause Report

On February 17, 2022, the Iowa Public Information Board accepted complaint 21FC:0119.  IPIB staff attempted to negotiate an informal resolution with all parties.  Subsequent, to this complaint, Mr. Abell filed complaint 22FC:0004.  This complaint was accepted and consolidated by the IPIB on March 17, 2022.  Subsequent to these two complaints, Mr. Abell filed complaint 22FC:0021.  This complaint was accepted and consolidated by the IPIB on April 21, 2022.  All issues addressed in the complaints were included in the attempted negotiation of an informal resolution with all parties. The respondent, Arispe City Council, approved and signed the agreement on April 11, 2022.  The complainant, Mr. Abell rejected the draft informal resolution.  A formal investigation was commenced by IPIB staff which involved reviewing the complaint files and review of remedial actions taken by thecity.

Background:

• Ernie Abell filed formal complaint with the IPIB on December 14, 2021, alleging that the Arispe City Council (Council) violated Iowa Code chapter 21 by failing to provide proper notice of a meeting.
• Mr. Abell alleged that a meeting was held on Monday, December 13, 2021.  However, the notice for the meeting indicated that the meeting was to be held on Tuesday, December 13, 2021.  During that meeting, the Council interviewed candidates for the position of clerk during an open session.
• On January 31, 2022, Ernie Abell filed formal complaint 22FC:0004, alleging that the Arispe City Council violated Iowa Code chapter 22.
• Mr. Abell alleged that he did not receive public records that he requested in a timely manner after repeated requests.
• On March 15, 2022, Ernie Abell filed formal complaint 22FC:0021, alleging that the Arispe City Council violated Iowa Code chapter 21.
• Mr. Abell alleged the council wanted to amend the agenda so that they could go into closed session to discuss the resignation of the clerk which was not part of the posted agenda.
• In response to the complaint, the City Attorney stated that she has been newly appointed and that she is reviewing with the city their processes.
• The City of Arispe has had a transition in the position of city clerk.

Remedial Efforts on the part of the City

• The Council has acknowledged during an open meeting that the requirements for proper notice of the meeting on December 13, 2021, were not met when the council did not provide the correct day & date of the meeting. The Council also acknowledged that the city did not respond in a reasonable amount of time to a public record request made on January 11, 2022. (4/11/22)
• The Mayor, Council, and Clerk will establish a city phone number and city email address so that the public has the ability to communicate with its governmental body rather than using personal contact information of city staff.
• The Council has adopted, pursuant to Iowa Code section 21.7, reasonable rules for the conduct of its meetings to assure those meetings are orderly and free from interference or interruption by spectators. (4/11/22)
• The Council adopted a Public Records Response Policy pursuant to Iowa Code chapter 22. (4/11/22)
• The Council conducted a training during an open meeting for all council members and city officials on Iowa Code chapters 21 and 22 (Sunshine Laws).  The Council worked with the Iowa League of Cities to provide the training.  (5/9/22)
• The public records requested by Mr. Abell were provided to him on April 7, 2022 by the city attorney.
• The Council adopted a check list of the steps and procedures needed for a closed session as outlined in Iowa Code section 21. (4/11/22)

Conclusions

• The Council made an error in their December meeting notice by not listing the correct day of the week along with the date, potentially confusing the public.
• Public records requests were ignored or overlooked.
• City contact information currently goes to a personal cell phone and email address.  The City needs permanent contact information that is consistent for the public to be able to access.
• Changes to the agenda were made without proper notice.
• Based upon staff review of the complaint files, staff believes the information supports a finding of probable cause to believe the Arispe City Council violated Iowa Code chapter 21 & 22.
• Staff is satisfied that the remedial actions being taken by the Council are a good faith effort to make improvements in the city processes to avoid violations in the future.