23FC:0114, 23FC:0115, 23FC:0122, 23FC:0123: John Bandstra, Bert Bandstra, Jack Rempe, Drew Mcgee/South Central Regional Airport Agency - Probable Cause Report and Order

Date:
08/15/2024

Subject:
John Bandstra, Bert Bandstra, Jack Rempe, Drew Mcgee/South Central Regional Airport Agency - Probable Cause Report and Order

Opinion:

The Iowa Public Information Board

COMES NOW, Erika Eckley, Executive Director for the Iowa Public Information Board (IPIB), and enters this Probable Cause Report.

On November 6, 2023, John Bandstra filed formal complaint 23FC:0114, alleging that the South Central Regional Airport Agency (“SCRAA”) violated Iowa Code chapter 21. On November 10, 2023, Bert Bandstra filed formal complaint 23FC:0115 alleging the same. On November 17, 2023, Jack Rempe and Drew Mcgee filed formal complaints 23FC:0122 and 23FC:0123, respectively, alleging the same. Because these four complaints relate to the same events and contain substantially similar allegations, they should be consolidated. 

Background

The SCRAA was established in 2012 pursuant to a joint powers agreement authorized by Iowa Code chapter 28E. Chapter 28E allows state agencies (including local units of government) “to provide joint services and facilities with other agencies and to cooperate in other ways of mutual advantage.” Iowa Code § 28E.1. The stated purpose of the 28E agreement is to provide for the “joint acquisition, construction, equipping, use and operation” of a new regional airport.

The original parties to the 28E agreement were the cities of Oskaloosa and Pella, along with Mahaska County. In 2022, the Iowa Supreme Court held that Article XI of the agreement, which prohibited Mahaska County from amending or terminating the agreement without the unanimous consent of the cities, was unconstitutional. Landowners v. South Central Regional Airport Agency, 977 N.W.2d 486, 501 (Iowa 2022). The Court therefore severed Article XI from the remaining agreement, and Mahaska County subsequently withdrew. The current parties to the agreement are Oskaloosa and Pella. 

The SCRAA is governed by a five-member board of directors. Three members are appointed by Pella, and two members are appointed by Oskaloosa. The board members at the time of the complaint were Pamela Blomgren, Kevin Gaul, Doug Klahsen, David Corbin, and Jim Hansen. 

Article V, section 1 of the 28E agreement created an Executive Committee “for the purpose of general oversight and administration of the Airport Facility within the policy perimeters [sic] established by the Board.” The 28E agreement states that the executive committee consists of the Board Chair and Vice Chair. The current Executive Committee consists of Jim Hansen (Board Chair) and Kevin Gaul (Vice Chair).

The SCRAA owns four parcels of land, which it has been leasing to private individuals for farming. On September 13 and November 21, 2023, the SCRAA Executive Committee again held private meetings concerning, among other things, the farm leases. 

The Complainants allege that the SCRAA violated chapter 21 by conducting its business in private. In support of this allegation, the Complainants point to the Executive Committee’s handling of the farm leases.

Analysis

Based on the allegations and the response, as well as the SCRAA Board agendas and meeting minutes posted on the SCRAA website, there is no indication that the Board violated chapter 21. Therefore, the analysis below is focused solely on whether the Executive Committee violated Chapter 21. 

Is the executive committee a governmental body?

Chapter 21 applies to meetings of governmental bodies. “An advisory board, advisory commission, advisory committee, task force, or other body created by an entity organized under chapter 28E, or by the administrator or joint board specified in a chapter 28E agreement, to develop and make recommendations on public policy issues" is a governmental body subject to chapter 21. Iowa Code § 21.2(1)(j). The first issue to address is whether the Executive Committee is a governmental body under this definition.

In its additional response, SCRAA argued that the Executive Committee is not a governmental body under section 21.2(1)(j) because the Committee does not “develop and make recommendations on public policy issues” to the Board. However, the SCRAA Executive Committee makes recommendations regarding the leases and leaseholders to be approved by the Board.

The SCRAA also argues that the Executive Committee’s recommendations do not concern “public policy issues.” This argument fails for a number of reasons. First, if it were true that the Committee’s recommendations do not concern issues of public policy, there would be no reason for the Committee to submit these recommendations to the Board for deliberation and action in open session. Second, the Committee’s recommendations clearly do concern issues of public policy—they concern, for example, the leasing of publicly owned land to private individuals. 

The Committee was created by the SCRAA, a 28E entity, and the Committee develops and makes recommendations on public policy issues to the SCRAA Board. Therefore, it is a governmental body under Iowa Code section 21.2(1)(j).

Did a meeting of the SCRAA Executive Committee occur?

Chapter 21 defines a “meeting” 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. 

Iowa Code § 21.2(2) (emphasis added). As the italicized portion of the statute highlights, in order for a chapter 21 meeting to occur, the governmental body in question must deliberate or act upon a matter within its policy making duties. However, the legislature has, over the years, added certain purely advisory groups to the statutory definition of “governmental body.” See, e.g., Iowa Code §§  21.2(1)(e), (h), (j). “These groups by definition ‘make recommendations on public policy issues’ as opposed to making policy.” Mason v. Vision Iowa Bd., 700 N.W.2d 349, 355 (Iowa 2005). Thus, the definition of a meeting under chapter 21 seemingly excludes meetings of such advisory groups, as they do not possess “policy-making duties” upon which to deliberate or act.

In Mason v. Vision Iowa Board, the Iowa Supreme Court dealt with this conflict between the legislature's definition of “meeting” and its subsequent inclusion of certain advisory groups in the definition of “governmental body.” The Court stated:

Notwithstanding the tension in the statute, we think it is clear the legislature intended to make the delineated advisory groups subject to the open meetings requirement. Otherwise, the legislature's act of including these entities in the definition of “governmental body” would be a nullity because none of the restrictions and requirements imposed on “meetings” of a governmental body would apply. Thus, the specified advisory groups would be subject to the open-meetings requirement when they deliberate or act within the scope of their duty to develop and make recommendations on public policy issues. 

Mason v. Vision Iowa Bd., 700 N.W.2d 349, 355 (Iowa 2005) (citations omitted). Thus, under the Court’s holding in Mason, if an advisory group is specifically included in the definition of a governmental body under section 21.2(1), then it is subject to the open meetings requirements when it a majority of its members gather to deliberate or act within the scope of its duty to develop and make recommendations on public policy issues.[1]

Here, the SCRAA Executive Committee is a governmental body under Iowa Code § 21.2(1)(j). Thus, it is subject to the chapter 21 requirements when a majority of its members gather to deliberate or act within the scope of its duty to develop and make recommendations on public policy issues.

The Executive Committee consisted of two members: Jim Hansen and Kevin Gaul. The SCRAA admits that both members of the Committee met on September 13 and November 21, 2023. The agendas of these meetings indicate that the Committee “deliberated or acted within the scope of its duty to develop and make recommendations on public policy issues.”[2]

On February 15, 2024, IPIB accepted the complaint regarding the Executive Committee’s meetings being subject to Iowa Code chapter 21. 

Attempts to Resolve the Complaints and Board Actions
Following the Board’s Acceptance of the complaints, IPIB provided terms for an informal resolution, no agreement between the parties was reached.

The SCRAA accepted the terms and approved the Informal Resolution at its meeting on July 3, 2024. The terms of the Informal Resolution required the following:

1. SCRAA acknowledges that the executive committee as stated in the 28E agreement in operation on January 18, 2024, is a governmental body under 21.2(1)(j).

2. SCRAA acknowledges that, as a governmental body, any time a majority of the members of the executive committee met to deliberate or act within the scope of its duty to develop and make recommendations on public policy issues, that meeting is subject to the requirements of chapter 21.

3. SCRAA acknowledges that the executive committee meetings of September 13 and November 21, 2023, were subject to the requirements of chapter 21. 

4. SCRAA will ensure that any committees or governing bodies created within the 28E agreement or any revised 28E agreement will comply with chapter 21 requirements going forward.

5. SCRAA will contact the Iowa League of Cities and schedule a training session that covers Iowa Code chapters 21 and 22 on July 3, 2024.

6. The current SCRAA Board members, attorney, and others involved in SCRAA's compliance with chapters 21 or 22 shall attend and complete the entire training session.

7. SCRAA will provide the minutes from the training session to confirm attendance of the relevant individuals.

8. SCRAA will approve this agreement at an open meeting and provide a copy of this Informal Resolution in full with its meeting minutes.

IPIB was provided confirmation regarded the training session on July 3, 2024 as well as a copy of the minutes. 

Recommendation

Based on the investigation of the complaints, I recommend that the Board determine probable cause exists to believe the Executive Committee of SCRAA violated Iowa Code chapter 21 when it held meetings on September 13 and November 21 that were not in compliance with chapter 21, but the complaints be dismissed as a matter of administrative discretion. Since the acceptance of the complaints, the SCRAA has acknowledged the error and worked to ensure no further violations will occur. The SCRAA has adopted the terms of the Informal Resolution as outlined by IPIB staff to resolve and remediate the complaints raised. 

By the IPIB Executive Director

_________________________

Erika Eckley, J.D.

[1] On the other hand, any advisory group that is not specifically defined as a governmental body is not subject to the chapter 21 requirements when it meets.

[2] For example, the September meeting agenda included Item 3, “Discussion and approval of farm leases.” The November meeting again included a discussion of the leases. The SCRAA Board then approved the Executive Committee’s recommendations regarding the leases at its meeting on November 29, 2023.