The Iowa Public Information Board
In re the Matter of: Steve St. Clair, Complainant And Concerning: Winneshiek County Board of Supervisors, Respondent |
Case Number: 24FC:0001 Dismissal Order
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COMES NOW, Erika Eckley, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order.
Facts
Steve St. Clair filed formal complaint 24FC:0001 on January 3, 2024, alleging the Winneshiek County Board of Supervisors (“Board”) violated Iowa Code § 21.3 during the week of December 4, 2023.
Mr. St. Clair alleges on December 4, 2023, the five-member Board of Supervisors, agreed at a public meeting to ask the county attorney to draft a resolution regarding the sale of county owned property with the restriction that it be used as a solar field. Mr. St. Clair alleges, after the meeting, the restriction on the use of the property was removed from the draft resolution. He alleges this change was the result of private exchanges between three of the five supervisors. He believes a supervisor spoke privately with two other supervisors, and over the course of a day had multiple contacts with the county attorney. He alleges this was done outside public view.
The Winneshiek County Attorney responded to the complaint. He agreed the Complaint arises from a decision of the Board to sell property in the Freeport Industrial Park. A representative of the adjoining property owner had approached the Board to request the purchase of a vacant lot, on the county-owned property to install a solar field. Deliberations regarding the request were held in open meetings of the Board. The Board voted to put the specific parcel as well as three adjoining parcels up for sale through a public bidding process.
The Board directed the County Attorney to prepare a resolution setting a public hearing for the sale of the properties. There was discussion concerning including restrictive covenants on the sale of the properties. On December 7, 2023, the County Attorney emailed a draft resolution scheduling a public hearing for the sale of the subject properties, along with notices to publish and bid materials. The proposed resolution included a restrictive covenant, prohibiting improvements that were not pedestal mounted.
After providing the draft, the attorney was contacted by a supervisor who expressed his belief the restriction had not been agreed to at the previous meeting and requested it be removed. The supervisor reported he had spoken with two other supervisors, and they agreed with his assessment. The attorney made the requested changes and sent the revised resolution to the full Board. The resolution was presented at the following Board meeting and passed with a vote of three to two.
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:
- 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).
Analysis
The minutes from the December 4, 2023, meeting state the following, “The Board reviewed with [the county attorney], the public hearing and bid procedures for the land in Freeport they are considering offering for bid and sale. After discussion, [the Board] would like [the county attorney] to make changes to the bidding procedures and public hearing notice to reflect restricted uses for the property. The Board will consider this again at a future meeting.”
On December 11, 2023, the minutes indicate the following occurred. “The Board considered the issue of sale of land in the Industrial Park in Freeport. Moved by Vermace and seconded by Faldet to set a public hearing on the potential land sale, but not solicit bids at this time. Motion failed with Vermace and Faldet voting aye; and Vick, Kelsay, and Langreck voting nay. Moved by Vick and seconded by Kelsay to adopt resolution 24-27, setting a public hearing for January 8, 2024, at 10:30am on the potential sale of the property, and providing bid procedures for interested buyers. Motion carried with Vick, Kelsay, and Langreck voting aye; and Vermace and Faldet voting nay. Public hearing notice will be published and bid documents will be sent to adjoining property owners.”
Based on the information provided, the Board took no formal action on the resolution at the December 4, 2023, meeting other than to request the county attorney draft a resolution. There was discussion on whether the resolution would include restricted uses of the property, but no formal action on the issue was taken until the December 11, 2023, meeting. At the meeting on the 11th, the Board considered the issue and a majority voted to adopt the resolution without the restricted uses of the property. In between the two meetings, there is no evidence that any meeting occurred other than a supervisor speaking with the county attorney and two other supervisors. There is no evidence the discussions occurred contemporaneously. In fact, Mr. St. Clair admits the same.
He stated, “Although it appears that the 3-person majority may not have ‘gathered’ together at any particular instant in time either in-person or electronically, it is well-established that informal exchanges among sub-majorities may combine to trigger open meeting requirements, where, as appears to be the case here, such exchanges involve serial communications, temporal proximity, agency, information conduits, and/or possible maneuvering to evade open meeting requirements. The actions in question occurred outside of public view, depriving the community of its right to observe the Board’s deliberation of the basis and rationale for this important policy reversal.”
The evidence, however, does not show more than a supervisor speaking to others about an issue. There is no evidence these discussions occurred in numbers constituting a majority of the governmental body. Individual supervisors did contact one another for the purpose of confirming the language regarding the resolution related to the selling of county property. Government officials are allowed to talk individually with each other.[1] The deliberation and vote on the resolution took place during an open meeting and the minutes reflect there was a difference of opinion on how to proceed among the Board. Based on these facts, however, there is no violation of chapter 21.
Conclusion
Iowa Code § 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 those requirements.
Individual conversations between Board members not in such numbers constituting a majority of the Board on an item formally deliberated and voted on in an open session is not a violation of chapter 21.
IT IS SO ORDERED: Formal complaint 24FC:0001 is dismissed as legally insufficient pursuant to Iowa Code § 23.8(2) and Iowa Administrative Rule 497-2.1(2)(b). The Board did not violate Chapter 21.
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 March 21, 2024. 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] See, e.g., 23FC:0091 - Michelle Hillman/Grand Junction City Council - Dismissal Order (finding one-on-one conversations regarding an issue formally noticed and voted on in an open meeting was not a violation of chapter 21.)