23FC:0098 Joseph Foran/City of Audubon - Dismissal Order

Subject:
Joseph Foran/City of Audubon -  Dismissal Order

Opinion:

The Iowa Public Information Board

COMES NOW, Erika Eckley, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order: 

On October 10, 2023, Joseph Foran filed formal complaint 23FC:0098, alleging that City of Audubon violated Iowa Code chapter 21.

Facts

Mr. Foran alleges the City Council is conducting meetings via email to decide on contractors and committee members outside of public meetings and with the complete exclusion of one council member. He alleges he has been told of some of these decisions and at a meeting members for a board were placed on a future resolution without advertising to the public the opportunity or trying to make it gender-balanced.

In response, the City states that the email communications may have included a majority of the City Council, but the communications involved only ministerial or social issues rather than deliberative matters within the scope of the City’s policy-making duties.

Applicable Law

The requirements set forth in chapter 21 of the Iowa Code apply to meetings of governmental bodies. 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:

1. A formal or informal gathering of members of a governmental body;
2. In such a number so as to constitute a majority;
3. During which deliberation or action occurs; and
4. 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).

“The distinction between ministerial gatherings and policy-making gatherings is subtle. A gathering for ‘purely ministerial’ 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 “deliberation” or “action” [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.” Dooley v. Johnson Cnty. Bd. of Supervisors, 2008 WL 5234382, *4 (Iowa App. Dec. 17, 2008). The topic of the conversations and the intent behind the gathering are important … “[p]ersons serving on governmental bodies should be constantly aware that their activities are subject to public scrutiny and should avoid even the appearance of engaging in unauthorized closed sessions.” Id. (citations omitted).

Analysis

IPIB staff reviewed the emails provided in support of the Complaint. The emails provided were sent to five council members, the mayor, and the city clerk. 

The emails provided included the following:

• An email sharing some success of another city and raising the question of whether the city is applying for grants. There were two replies to the full Council. One was from the city clerk and one was from a council member. A majority of the Council did not participate in this discussion.
• An email is sent making a recommendation regarding a specific wage adjustment percentage rate to be discussed at the special meeting on the 26th. No replies to this email were included. A majority of the Council did not participate in this discussion.
• An email provided is a quote for completion of a comprehensive plan forwarded by the city clerk. The email reply to the entire Council states the item is not on the agenda for the meeting, but that the quote seems too high for a document they rarely use. No other responses were provided. A majority of the Council did not participate in this discussion.
• Another email includes concerns about the sale of a property, including the tax consequences based on its eventual use and the need to print the notice of the sale in the paper. A reply suggests involving the city attorney to draft a notice. A majority of the Council did not participate in this discussion.
• An email includes follow up with an individual to get a quote for a mural with a request to get a key to allow measurements for the quote. There is one reply acknowledging it. A majority of the Council did not participate in this discussion.

In reviewing the emails, the issues are whether inclusion of the entire Council on the email chain constitutes a majority of the members in a gathering and whether the email discussion amounted to “deliberation.”

Was There Deliberation?

In Dooley, the court found that the when a contractor sought feedback, opinions, and input from the council members on its draft, the decision to meet as a majority on a project to be voted on in a public meeting was “dangerously close to ‘deliberation.’” Id. at * 5. The court warned that “absent any intention to deliberate, such discussions could arise effortlessly. We believe that the board's decision to review the draft in this fashion was a poor one.” Id. (citations omitted).

“Gathering for ‘purely ministerial’ 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 policymaking 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 ‘deliberation’ or ‘action’, as defined above, 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 upon matters over which they may exercise judgment or discretion.” 1981 Iowa Op. Atty. Gen. 162 (Iowa A.G.), 1981 WL 178383.

The topics of some of the emails included subjects within the scope of the Council’s policy-making duties. There were emails about applying for grants for the City, recommendations on the sale of property, the costs of comprehensive plans, and raises for city staff. Some of the email chains began with an email sharing information, but the replies included questions and comments regarding the matters.

The email chains likely amounted to deliberation by the Council.

Was there a majority?

The formation of a meeting under Chapter 21, requires that a majority of the government body participate in the gathering of members. The entire Council was copied on the emails, but at no time did a majority of the members participate in the discussion. In fact, most of the replies were from the same council member.

In a previous Complaint before the IPIB, it was determined that when government officials were merely copied on an email, but did not actively participate as a group in deliberation in such numbers constituting a majority of the members that the formation of a meeting could not be inferred from passively being copied on the email chain. 13FC:0007 - 11/14/2013 - Wallace D. Parrish / Cedar Falls Iowa City Council.

In these email chains, because no majority ever actively participated, a meeting under Chapter 21 was never formed. A majority of the members of the Council is a necessary element for the formation of a meeting.

While these email chains did not constitute a meeting in violation of Chapter 21 requirements, the City is cautioned with the following advice the IPIB has previously provided:

• “It is prudent for governmental bodies to advise members to avoid engaging in deliberation through electronic means such as text or email without following the requirements of an electronic meeting set forth in Iowa Code section 21.8.” 21FC:0110 Ellen Heather/Mitchellville Library Board - Dismissal Order
• “[T]he City is cautioned to avoid sending mass communications to all council members and to avoid using the ‘reply all’ feature to emails. Utilizing the ‘bcc’ feature for addressing emails to all council members is considered the best practice.” 17FC:0086 Anthony Schrad/City of Eldora - Dismissal Order

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.

The City Council was copied on email chains that included “deliberation”, but the entire Council’s inclusion in the email chain constituted only passive activity and a majority of members did not participate, so the emails never constituted a meeting subject to Chapter 21.

IT IS SO ORDERED:  Formal complaint 23FC:0098 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 January 18, 2024.  Pursuant to IPIB rule 497-2.1(4), the parties will be notified in writing of its decision.

By the IPIB Executive Director

_________________________

Erika Eckley, J.D.