Date:
03/16/2023
Subject:
Analicia Gomes/Bettendorf Community School District - Probable Cause Report & Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: ANALICIA GOMES, Complainant And Concerning: BETTENDORF COMMUNITY SCHOOL BOARD, Respondent |
Case No. 22FC:0058
Probable Cause Order |
This matter came before the Iowa Public Information Board (IPIB) on March 3, 2023, 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 not exist to believe that the Bettendorf Community School Board violated Iowa Code Chapter 21. The Report also recommends that the IPIB dismiss the matter.
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 matter for further investigation.
___X___ Finds that there is a lack of probable cause to believe a violation has occurred and dismisses the matter.
_______ Finds that probable cause exists to believe a violation has occurred, but, as an exercise of administrative discretion, dismisses the matter.
_______ 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 on March 3, 2023.
_____________________________________
IPIB Chair
CERTIFICATE OF MAILING
This document was sent by electronic mail on March 6, 2023, to:
Analicia Gomes
Wendy Meyer, Attorney for Respondent
Before The Iowa Public Information Board
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In re the Matter of: ANALICIA GOMES, Complainant And Concerning: BETTENDORF COMMUNITY SCHOOL BOARD, Respondent |
Case No. 22FC:0058
Probable Cause Report |
COMES NOW Daniel M. Strawhun, Legal Counsel for the Iowa Public Information Board (IPIB), and respectfully submits this probable cause report for formal complaint 22FC:0058.
Background
Analicia Gomes filed formal complaint 22FC:0058 on June 2, 2022, alleging that the Bettendorf Community School Board (Board) violated Iowa Code chapter 21 on May 25, 2022.
Ms. Gomes alleged that a majority of Board members (six of the seven Board members) attended a meeting on May 25, 2022, described as a “parents working group to discuss the problems at Bettendorf Middle School.” She alleged that the Board did not videotape the event and would not allow parents to videotape the event. She also alleged that the Board prevented members of the Press from entering the event for reporting purposes.
Legal counsel for the Board responded to the complaint on June 10, 2022. Counsel argued that the May 25 gathering was not a meeting of the Board and was not subject to chapter 21. She explained that the superintendent of the Bettendorf Community School District arranged the meeting as a workshop for parents and community members to discuss concerns about ongoing problems at Bettendorf Middle School. There were approximately 300 people in attendance at the workshop. Attendees were divided into about 40 small groups of about six to eight people each.
On September 15, 2022, IPIB ordered that the complaint be accepted. Efforts to resolve the complaint informally were unsuccessful. Therefore, IPIB staff initiated a formal investigation pursuant to Iowa Code section 23.10. As part of the formal investigation, IPIB staff requested that all Board members execute sworn affidavits responding to the following questions regarding their action and involvement in the workshop:
- Background (affiant’s name, residency, affirmation of position on Board).
- Did you attend the “BMS Parent & Staff Work Session” that was held on Wednesday, May 25, 2022, at the Waterfront Convention Center, 2021 State Street, Bettendorf, IA 52722?
- For what purpose did you attend the workshop?
- Please describe in detail the extent of your involvement in the workshop. I.e., what actions did you take while in attendance?
- Did you at any point assume a role that deviated in any way from that of the other participants in the workshop?
- Were you aware there were other Board members in attendance?
- Did you speak to any of the Board members in attendance? If so, describe in detail the context and content of each interaction.
- Did you observe any other Board members gathering with and/or speaking to each other? If so, please state their names and describe the interaction you observed (i.e., who was involved, where did the interaction take place, at what point during the meeting did it occur, etc.).
The Board members’ responsive affidavits are attached as exhibits 1 through 7. IPIB staff also informed Ms. Gomes that she was welcome to provide sworn statements made by herself or others that would be relevant to determining whether probable cause exists. Ms. Gomes did not submit any such statements.
Based on the affidavits submitted, IPIB staff makes the following factual findings:
The Board is composed of seven members: Paul Castro, Andrew Champion, Joanna Doerder, Rebecca Eastman, Richard Lynch, Michael Pyevich, and Linda Smithson. All Board members except Eastman attended the May 25 workshop.
The Board members sat at separate tables. Each table constituted a separate small group of participants. Thus, no small group contained more than one Board member, and given that there were around 40 small groups and only six Board members in attendance, the vast majority of the small groups contained no Board member at all.
Superintendent Dr. Morse led the workshop. No Board member assumed a role of leadership in the workshop. No Board member assumed a role that in any way deviated from the role of other 300 participants in the workshop.
The small groups were invited to discuss as a group the strengths, weaknesses, obstacles, and opportunities that affect student behavior at BMS and the public perception of the school (this is known as a “SWOT” analysis). The small groups were instructed to record the topics they discussed on a poster. Once the small group discussion ended, all participants were encouraged to walk around individually, view the topics that were discussed by the other groups, and place a sticker next to topics of particular importance.
Interaction between Board members, to the extent there was any, was limited to individual exchange of greetings between one Board member to another. At no point during the workshop did Board members communicate to each other as a group or otherwise congregate as a group.
Reports from the workshop were collected by the superintendent and presented to the Board at its meeting on May 26, 2022. The powerpoint presentation that the superintendent used in conducting the workshop has been made available to the public.
Legal Analysis
The requirements set forth in chapter 21 of the Iowa Code apply to meetings of governmental bodies. The sine qua non of a chapter 21 violation is that a meeting occurred. A meeting is defined as
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.
Iowa Code § 21.2(2). Thus, a meeting subject to chapter 21 consists of four elements:
- A formal or informal gathering of members of a governmental body;
- In such a number so as to constitute a majority;
- During which deliberation or action occurs; and
- Such deliberation or action is within the scope of the governmental body’s “policy-making duties.”
See 1981 Iowa Op. Att'y Gen. 162 (1981).
- Did a gathering occur?
Here, a “gathering” of Board members did not occur. While it is true that the six Board members were all present in the same building during the May 25 workshop, that building was a large convention center. Approximately 300 other participants were also present at the workshop. None of the Board members sat together. The Board members did not communicate with each other during the workshop, aside from exchanging social greetings in passing. At no point during the workshop did Board members congregate together.
A gathering of a governmental body in the chapter 21 context seems to require more than mere physical presence in the same building. Indeed, the fact that a gathering may take place “in person or by electronic means” means that physical presence is not determinative of whether a gathering occurred. For a gathering to occur, there must be a level of situational order and intimacy that allows for the relevant individuals to deliberate or act as a group. As noted above, at no point during the workshop did the Board members convene in such a way. They were dispersed throughout a large convention center, did not communicate with each other except to say hello in passing, did not congregate with each other, and participated in the workshop as individual participants.
If no gathering occurred, it is unnecessary to continue the analysis of the remaining elements. Thus, the remaining elements will be analyzed assuming, for the sake of argument, that the Board members' presence in the convention center constituted a gathering—although it did not.
- Did the gathering constitute a majority?
There is no dispute as to the number of Board members that were physically present in the convention center: six members of a seven-member Board, which constitutes a majority. However, as noted above, the Board members did not gather as a majority inside the convention center, as would be required to find that a meeting under chapter 21 occurred. They remained dispersed throughout the building. No “gathering of a majority” ever occurred, although it is true a majority of the Board members were physically present in the same building.
- Did the Board members deliberate or act?
No deliberation or action occurred. The Iowa Supreme Court has stated that deliberation occurs “if the members of a governmental body engage in any discussion that focuses at all concretely on matters over which they exercise judgment or discretion.” Hutchison v. Shull, 878 N.W.2d 221, 231 fn. 1 (Iowa 2016). Deliberation therefore requires discussion between Board members. No discussion between Board members took place during the meeting. Board members did not communicate with each other except to say hello in passing.
Because no deliberation or action occurred, it is not necessary to analyze the fourth element, whether the deliberation or action was within the scope of the governmental body’s policy making duties.
- What about the “Stork to Reis” Opinion?
The facts underlying this complaint are distinguishable from the facts underlying the “Stork to Reis” Attorney General Opinion. No. 81-2-13(L), 1981 WL 671610 (Iowa A.G. Feb. 16, 1981). There, the Iowa Civil Rights Commission was required by statute to investigate and study the existence, causes, and extent of discrimination in public institutions. As a step in the process of carrying out this statutory duty, the Commissioners planned to meet as a group at the Iowa State Penitentiary to interview inmates and discuss their civil rights concerns. In other words, the commission planned to gather and act as a group to carry out one of their statutory duties.
In contrast, the Board members did not gather and act as a group to carry out a statutory duty. Rather, they attended a workshop as individuals. The workshop was open to concerned parents and community members, and there were approximately 300 people in attendance. The Board members did not gather together inside the convention center to listen to and discuss the concerns of the workshop participants at any point during the workshop. Instead, they remained dispersed throughout the convention center as participants themselves, and at no time did their role deviate from that of an atomized, individual participant.
Had the Board members gathered together in the convention center to hear and consider the workshop participants' concerns about BMS, then according to the “Stork to Reis” AG opinion, a meeting likely would have occurred. However, that is not what happened at the workshop. The Board members remained individual participants themselves, did not gather, and did not deliberate or act as a group constituting a majority. It was not until the following day, at the properly noticed May 26 public meeting of the Board, that the Board gathered to hear and deliberate the concerns that were raised during the workshop. Therefore, no meeting as defined by chapter 21 occurred at the May 25 workshop. Because no meeting occurred, it follows that no chapter 21 violation occurred.
IPIB Action
IPIB has several options upon receipt of a probable cause report. According to Iowa Administrative Rule 497 - 2.2(4):
“Board action. 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
Based upon investigation of the complaint, I recommend that IPIB dismiss the matter for lack of probable cause to believe a violation occurred. The mere physical presence of the individual Board members in the convention center was not a gathering under the chapter 21 definition of a meeting. A gathering is not dependent upon physical presence; rather, it requires individuals to convene in such a way that allows for group deliberation and action. The Board members never convened in this manner while they were inside the convention center. Instead, they remained dispersed throughout the center as individual participants themselves. Further, the Board members never deliberated or acted upon any matter. They discussed nothing with each other and took no concerted actions as a group.
Respectfully submitted March 3, 2023.
Daniel M. Strawhun
Attorney
Iowa Public Information Board
CERTIFICATE OF MAILING
This document was sent by electronic mail on February 22, 2023, to:
Analicia Gomes
Wendy Meyer, counsel for the Bettendorf Community School District