Date:
10/19/2023
Subject:
Concerned Citizen/O’Brien County Conservation Board - Dismissal Order
Opinion:
The Iowa Public Information Board
Concerned Citizen, Complainant And Concerning: O’Brien County Conservation Board, Respondent |
Case Number: 23FC:0088 Dismissal Order
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COMES NOW, Erika Eckley, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order:
On August 28, 2023, Concerned Citizen filed formal complaint 23FC:0088, alleging that O’Brien County Conservation Board (“OCCB”) violated Iowa Code chapter 21.
Facts
Concerned Citizen filed this complaint alleging that after adjournment of the meeting, while still at the table, board members had a long discussion with staff. The information discussed was not included in the minutes of the meeting. He also alleged that the board members attended the Bison Burger Picnic, a county-sponsored event without posting an agenda or notice that they would all be attending. He alleges that these two issues were both discussed, less than a month prior, at their training for previous violations of open meetings laws.
In response, OCCB stated that there was an error in the distribution of a draft agenda for the meeting and a discussion item was skipped inadvertently during the meeting. Immediately following adjournment there was a brief discussion on when the next meeting was to be held and the process for setting up an interview with applicants for the open Director position. This discussion was held with all meeting attendees still around the table. The publicly posted minutes of the August 9, 2023 OCCB meeting were unofficial, but were corrected to include the missing discussion item and approved at the next OCCB meeting on September 13, 2023. In addition, after the meeting three board members spent a few minutes praising staff for a job well done on presenting during the meeting and on the improvements to the park in which the meeting was held. This discussion was held as meeting attendees were dispersing or having other conversations.
In regards to the attendance at the picnic, OCCB stated that the event was not a meeting as defined under Iowa Code § 21.2, so no notice or agenda was required.[1] OCCB further clarified that the Bison Burger Picnic is a social and fundraising event sponsored by the Little Sioux Valley Conservation Association. OCCB supports and hosts the event at OCCB's Prairie Heritage Center as a partner. The board members attended as volunteers either for different services provided or as attendees to the event. An estimated 400 people attended the event.
Applicable Law
“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.” Iowa Code § 21.3.
“‘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.” Iowa Code § 21.2
The Iowa Attorney General provided an analysis of this code section (previously codified as section 28A.2(2)) in the Stork to O’Kane opinion, 1981 WL 178383 (July 6, 1981). The Attorney General opinion stated that for a meeting to occur, four elements must be found:
- A gathering of members of the governmental body, formal or informal, occurs;
- A majority of the members of the governmental body are present;
- Deliberation or action occurs; and
- And such deliberation or action is within the scope of governmental body’s “policy-making duties.”
The opinion provides additional guidance to define deliberation or action, stating that deliberation is intended “to have broad application and to include general discussion and/or consideration of matters preliminary to final decision making.” “Ministerial” gatherings only include those gatherings when the purpose of the gathering is “without regard to or the exercise of … judgment.”
Analysis
The first portion of this complaint is that an agenda item was missed during the meeting, but addressed after the meeting had been adjourned and that the discussion did not appear in the posted, unofficial minutes. Iowa Code chapter 21 is silent as to whether an inadvertently missed agenda item can be addressed immediately following adjournment, but while all members are still present at the table. Iowa Code § 21.4(3)(a), however, allows for the continuation of a meeting without an additional 24-hours’ notice for a “meeting reconvened within four hours of the start of its recess, where an announcement of the time, date, and place of the reconvened meeting is made at the original meeting in open session and recorded in the minutes of the meeting and there is no change in the agenda.” In this case, the discussion occurred immediately following adjournment in the same place and roughly the same date and time as the adjourned session. The discussion included an agenda item that was on the noticed agenda, but had been skipped. The discussion item was included in the official minutes. If there was any error in addressing the missed agenda item immediately following adjournment, it was harmless error and resolved quickly while everyone was still present.
In regards to three board members involved in providing positive feedback to staff following their presentation and their work at the end of the meeting, there is no a violation of Iowa Code chapter 21 because this is not a discussion involving deliberation of the Board.[2]
Likewise, the Board’s attendance at the Bison Burgers Picnic was merely ministerial and did not constitute a meeting in violation of Iowa Code Chapter 21. In reviewing the requirements to establish a meeting occurred, specific elements are absent in this scenario. In reviewing the facts, it is established that a majority of the Board did gather at least informally at the picnic, but there is no evidence that the Board undertook any deliberation or action while they attended or volunteered at the event. Without deliberation or action taken, the gathering was ministerial or social in nature, and a meeting did not occur. Without a meeting, there was no notice required and no violation.
Conclusion
Iowa Code § 23.8 requires that a complaint be within the IPIB’s jurisdiction, appear legally sufficient, and have merit before the IPIB accepts a complaint. Following a review of the allegations on their face, it is found that this complaint does not meet those requirements.
Neither the discussion regarding a missed agenda item immediately following the adjournment of the meeting that was handled in the open and included in the official minutes of the meeting; three Board members involved in providing positive feedback to staff at the conclusion of the meeting; nor attendance of the Board at a social event were violations of Iowa Code Chapter 21.
IT IS SO ORDERED: Formal complaint 23FC:0088 is dismissed as it is legally insufficient pursuant to Iowa Code § 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 October 19, 2023. 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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Erika Eckley, J.D
[1] During the training conducted by Erika Eckley on behalf of IPIB there was considerable discussion about best practices and a recommendation to provide notice that the board members would attend the Bison Burger Picnic but that no business would be conducted. This was to ensure transparency and openness in the process by the Board. There was also discussion about ensuring that there was no discussion among board members during the event to ensure there were no violations or perceived violations of chapter 21. It is disappointing that after the discussion of this specific incident, OCCB chose not to provide the notice resulting in at least a portion of this Complaint being filed.
[2] Previously, a complaint against OCCB was accepted when three board members were deliberating over specific issues expressly within their policy-making duties. See 23FC:0035 at https://ipib.iowa.gov/23fc0035-concerned-citizenobrien-county-conservation-board-acceptance-order. This situation, however, is more akin to discussion at the end of a Board meeting that is not directly related to deliberation and policy-making. See 23FC:0068 https://ipib.iowa.gov/23fc0068-nolan-mcgowanosceola-county-board-supervisors-dismissal-order (finding no violation for sharing gossip not related to the Board’s policy-making duties).