Date:
05/19/2022
Subject:
Frances Mierzwa/Pottawattamie County Board of Supervisors - Dismissal Order
Opinion:
The Iowa Public Information Board
|
In re the Matter of: Frances Mierzwa, Complainant And Concerning: Pottawattamie County Board of Supervisors, Respondent |
Case Number: 22FC:0031
Dismissal Order
|
COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order.
Frances Mierzwa filed formal complaint 22FC:0031 on April 7, 2022, alleging that the Pottawattamie County Board of Supervisors (Board) violated Iowa Code chapters 21 and 22 on January 24, 2022.
Ms. Mierzwa alleged that the agenda for a meeting on December 29, 2021 was “grossly deficient.”1 She alleged that a meeting of the Board was held on that date with “no other notification to the public.” She added that the meeting minutes were inadequate and that the meeting was not video recorded.
In support of this complaint, she provided a copy of an agenda for a Board meeting held on December 30, 2021, with one agenda item listed:
- Discussion and/or decision to approve and authorize Board to sign Resolution No. 125-2021 entitled: RESOLUTION authorizing purchase of property and designating Board Chair as authorized representative to sign necessary document to effectuate said purchase.
Ms. Mierzwa also included a copy of the minutes of this meeting. The minutes included a full copy of the resolution and the results of the roll call vote of the Board. She alleged that the purchase in question was of such significance that there should have been more advance notice and attention provided to the property issue.
When advised that the IPIB is limited in jurisdiction to events that have occurred no more than 60 days prior to the filing of the complaint, Ms. Mierzwa added that she did not become aware of the alleged violation until just recently. She stated that she could not have become aware of the complaint “with reasonable diligence” because she is a “full-time caregiver to 6YO twins, remote learning facilitator during a local surge in a global pandemic….”2
Matt Wilber, the Pottawattamie County Attorney, filed a response to the complaint on April 19, 2022. Mr. Wilber stated that the land purchase was the culmination of Board action over a few years to expand a county park in Pottawattamie County. On October 21, 2021, the Board conducted a properly noticed meeting and went into closed session to discuss a property purchase. Since the purchase is now complete, a copy of the closed session minutes was provided. A video of the session is also posted on YouTube.
On December 21, 2021, another properly noticed closed session was held to review the same property purchase. Mr. Wilber was present during this meeting and presented two separate agreements for consideration, a purchase agreement and a lease back agreement. Mr. Wilber provided a copy of the session minutes and a link to the YouTube video of the closed session.
Following the closed session on December 21, 2021, the Board voted in open session to authorize the Board chair to sign the two agreements. A closing date was tentatively set for December 29, 2021, as the closing date had to be before the first of January pursuant to the terms of the purchase agreement.
On December 28, 2021, at 5:33 p.m., Mr. Wilber was advised by the seller’s legal counsel that the title company needed a written resolution authorizing the purchase and designating the authorized representative to sign documents at closing. In order to provide the required 24 hours posted notice, Mr. Wilber set a special Board meeting for 10 a.m. on December 30, 2021.
Mr. Wilber provided copies of all the documents posted and provided to the Board prior to and at this meeting.3 The agenda for the meeting noted that the Board would be adopting a resolution providing the authority previously granted by motion and vote. A copy of the final resolution was not attached to the agenda, as it had not been finalized.
Mr. Wilber stated that in his opinion as county attorney, he considered the actions of the Board on December 30, 2021, to be ministerial in nature, as the initial decision to purchase the property and designate the Board chair as the signing authority had already been approved on December 21, 2021.
All Board members were present at the December 30, 2021, meeting. The closing for the property purchase was completed later on that same day. The minutes for the December 30, 2021, meeting were approved by the Board at its regular meeting on January 3, 2022.
As to the issue of whether the complaint by Ms. Mierzwa was timely filed, Mr. Wilber provided a copy of the press release issued by the Pottawattamie County Conservation Department on January 4, 2022. He also provided copies of various media publications about the purchase, including from the Council Bluffs Daily Nonpareil, the Associated Press, and U.S.News and World Report. He stated that all three major television stations also reported on the purchase.
As noted, Iowa Code section 23.7(1) requires the filing of a complaint within 60 days of the alleged violation. Even using the date the minutes were approved on January 3, 2022, in an open meeting, the latest statutory filing date for a complaint about the December 30, 2021, meeting would be March 4, 2022. This complaint was not filed for another 34 days beyond that jurisdictional requirement.
While Iowa Code section 23.7(1) allows for a delay if the violation could not have been discovered with “reasonable diligence”, the announcement of the purchase and the amount of press coverage that generated certainly shows that this information was readily accessible in the county and beyond.
Even if the complaint had been timely filed, the records provided by the Board in the response to this complaint clearly indicate that there was no violation of Iowa Code chapter 21. Adequate notice was provided, the reason for the closed session was statutorily authorized, and the agenda and minutes were legally sufficient
Iowa Code section 23.8 requires that a complaint be within the IPIB’s jurisdiction, appear legally sufficient, and could have merit before the IPIB accepts a complaint. This complaint does not meet the necessary requirements for acceptance.
IT IS SO ORDERED: Formal complaint 22FC:0031 is dismissed as beyond the jurisdiction of the IPIB and without merit 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 May 19, 2022. 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, J.D.
1. While the complaint alleged the violation occurred on December 29, 2021, all other information supplied by Ms. Mierzwa shows the meeting date as December 30, 2021.
2. Iowa Code section 23.7(1) states: The board shall adopt rules pursuant to chapter 17A providing for the timing, form, content, and means by which any aggrieved person, any taxpayer to or citizen of this state, the attorney general, or any county attorney may file a complaint with the board alleging a violation of chapter 21 or 22. The complaint must be filed within sixty days from the time the alleged violation occurred or the complainant could have become aware of the violation with reasonable diligence. All complaints filed with the board shall be public records.
3. Mr. Wilber noted that this meeting was not posted to YouTube as no one present knew how to do this. The Board clerk was not available to be present, so Mr. Wilber served as Board clerk for this meeting. Iowa Code chapter 21 does not require videotaping of open meetings.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of May, 2022, to:
Frances Mierzwa
Matt Wilber, Pottawattamie County Attorney