24FC:0036 Jason Foust and Katie Milhollin/City of Eldridge - Dismissal Order

Date:
06/27/2024

Subject:
Jason Foust and Katie Milhollin/City of Eldridge - 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 March 27, 2024, Jason Foust and Katie Milhollin filed formal complaint 24FC:0036, alleging that City of Eldridge (“City”) violated Iowa Code chapter 21.

Facts

Mr. Foust and Ms. Milhollin allege the City held a special meeting without 24-hour notice to the public to remove a board member from the Utility Board. 

In response, the City, through Counsel, agreed the City did not provide 24-hours’ notice for a special meeting of the Council, but stated the City was responding to an emergency created by the Utility Board’s actions in setting a special meeting.

The following context is important. For several months, the City and the Utility Board were in conflict regarding control of the Utility. A meeting was scheduled on March 26 for the City Council to meet with the Chair of the Utility Board. The Chair did not meet with the City and a Special Meeting was scheduled by the Utility Board for 4:00 p.m. on March 27. The agenda included taking actions to reinstate employees who were placed on administrative leave by the City pending an investigation. The agenda also included actions to make the Utility a separate entity and other matters that were in dispute with the City. There was also litigation regarding the removal of a previous Utility Board member. 

The City noticed a meeting at 9:21 p.m. on March 26 for a meeting at 8:00 a.m. on March 27 after discovering the Utility Board meeting and agenda for March 27 at 4:00 p.m. At the beginning of the meeting, the mayor read the following statement:

It is with great concern for the City that we call this meeting to order today. Today’s meeting was required to be called in a manner that departs from the normal requirements of Iowa Code Chapter 21 because compliance would be both impossible and impracticable- and at this time- I would like to state on the record the good cause which warrants and justifies such a departure. Yesterday afternoon, the City’s Utility Board released an agenda with several items that – if acted upon – would violate state law, City ordinances and the Utility Board’s own established policies. The City has worked tirelessly to get the Utility Board members to act in compliance with these governing authorities – but they have continued to ignore them. I called a meeting with acting Utility Board Chairman, Jim Skadal, for yesterday March 26, 2024, at 10:00 AM. The meeting was to take place at City Hall. Jim showed up to City Hall at 10:00 AM but refused to meet with me as directed.

Several utility employees were placed on paid leave pending an investigation into their misconduct, which involves allegations involving financial improprieties and unauthorized use of utility funds. The Utility Board agenda released demonstrates that – despite there being financial improprieties under review – the Utility Board is looking to provide these individuals with access to these public funds once again – with no oversight or accountability.

Due to the severity of these issues and the Utility Board’s efforts to compromise the integrity of the investigation and utility’s funds, the City Council called this special meeting today for this morning as all such circumstances certainly warrant good cause for the departure from the 24-hour requirement.

Mr. Foust disagreed that an emergency existed and that the City moved so quickly to remove Mr. Skadal [the Utility Board Chair] was not to prevent the Utility Board from doing something illegal, but to stop them from doing something the City did not want them to do, which was legal. If the Utility Board had carried out an illegal action they would have had every opportunity to challenge the action. He stated that the City was actively trying to squash a third party investigation that the Utility Board was trying to initiate as opposed to the City’s investigation being done by the City Administrator and City Attorney.

Applicable Law

Iowa Code § 21.4(2) “[N]otice conforming with all of the requirements of subsection 1 shall be given at least twenty-four hours prior to the commencement of any meeting of a governmental body unless for good cause such notice is impossible or impractical, in which case as much notice as is reasonably possible shall be given….When it is necessary to hold a meeting on less than twenty-four hours’ notice, or at a place that is not reasonably accessible to the public, or at a time that is not reasonably convenient to the public, the nature of the good cause justifying that departure from the normal requirements shall be stated in the minutes.”

The Iowa courts have found emergency situations permitting less than twenty-four hours’ notice in KCOB/KLVN, Inc. v. Jasper County Board of Supervisors when there was proof the county would lose money and would be unable to provide required services unless immediate action was taken on funding of the departmental program. 473 N.W.2d 171, 174 (Iowa 1991). In KCOB/KLVN, a meeting had been properly noticed, but there was not time to amend the tentative agenda. Despite this, the Court found not violation in discussing the program because of the need to take immediate action. Id. at 174-75.

In Short v. Green Bay Levee & Drainage Dist. No. 2 the Iowa Court of Appeals found no violation for failing to provide twenty-four hours’ notice when the drainage district acted to prevent “possible disastrous flooding.” 2004 WL 1072273, *2 (Iowa Ct. App. May 14, 2004).

Analysis

In most circumstances, government bodies can and should delay taking actions until it is possible to provide appropriate and timely notice under Iowa Code § 21.4(2). Iowa courts have found when an emergency situation arises, government bodies can proceed to act to address the emergency with less than twenty-four hours’ notice.

In this situation, the City had placed individuals on administrative leave to investigate potential financial matters, the City had attempted to address the matter with the Utility Board Chair, but the Chair refused to meet with the City. Instead, the Utility Board posted notice of a meeting with actions of potentially re-instating the individuals subject to investigation in conflict with the City. If there were improper financial activities occurring, reinstating the individuals prior to an investigation concluding could have very likely jeopardized the investigation or resulted in further financial concerns. It is not unreasonable to find the City needed to take immediate action to prevent the reinstatement of the employees. This is similar to the need by the Jasper County Board needing to take immediate action upon notice a program required funding without the appropriate notice being provided under Iowa Code. See KCOB/KLVN, 473 N.W.2d at 174-75.

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 needed to respond quickly to an issue that could have impacted an investigation into financial improprieties that had potential impacts on the City and the City’s utility. It is not unreasonable to find an emergency existed requiring action with less than twenty-four hours’ notice.

IT IS SO ORDERED:  Formal complaint 24FC:0036 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 June 20, 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.