24FC:0070 Brian Thomas/Jefferson County Board of Supervisors - Acceptance Order

Date:
10/17/2024

Subject:
Brian Thomas/Jefferson County Board of Supervisors  - Acceptance Order

Opinion:

The Iowa Public Information Board

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

On August 13, 2024, Brian Thomas filed formal complaint 24FC:0070, alleging Jefferson County Board of Supervisors (Board) violated Iowa Code chapters 21 and 22.

Facts

Brian Thomas alleges[1] several violations of Iowa Code chapters 21 and 22 by the Board. 

Chapter 21 Violations

Thomas alleges the Board denied Thomas the opportunity to meet with them in open session by declining to add the matter to a Board agenda. 

Thomas alleges the June 10 Board meeting agenda was not specific when the Board discussed the Ambulance Director recruitment process during the item stated as “Committee Reports.” 

Thomas alleges the Board improperly wanted to go into closed session to discuss matters involved in the ambulance director position.

Thomas also provided an audio recording of Supervisor Drish and Supervisor Dimmitt discussing ongoing Board concerns related to the Ambulance Service. These two supervisors represent a quorum of the Board. The recording is a 22-minute phone conversation ranging in topics from their frustrations about the hiring process for the ambulance services, discussion on how interviews should be conducted and who they preferred to get the position. They also discussed wanting to meet in closed session. At one point they stated they should not be talking together.

Chapter 22 Violation

Thomas alleges made a records request on June 24 to the Board and the County Attorney. Thomas alleges he has not received any documents regarding this request and the County Attorney is improperly classifying communications as attorney-client protected because the attorney does not represent the human resources representative or the investigator. 

“to inspect or obtain copies of public records that relate to the employment, investigation(s), behavior, accusation(s), and performance of Brian Thomas. This includes, but is not limited to, relevant information stored on paper or electronically, text messages, emails, written documents, voicemail, data files, program files, temporary files, website information, archival tapes, and any audio recordings. This request encompasses County-issued phones, computers, and other electronic items as well as personal phones, personal computers, and other personal electronic items that contain relevant information. At a minimum, the record request shall include Chauncey Moulding, Lee Dimmitt, Susie Drish, Dee Sandquist, Jack Reed, Jon Thomas, Brent Heisel, and other individuals possessing relevant information.”

The Board responded through the County Attorney. 

Chapter 21 Response

The Board stated the concerns regarding the open meeting violation is based solely on Thomas’ employment dispute. The Board did not address the specificity of the agenda item or the claim they did not allow Thomas to be given time of the agenda. Emails do show Thomas was invited to provide comment to the Board during the public comment portion of a meeting.

The Board argued the recorded phone call did not violate Iowa Code chapter 21 because the conversation did not result in any action or deliberation of a majority of the Board. The phone call was merely complaints regarding the process and feeling excluded because of open meeting concerns. While the call including a majority of the members of the Board, the conversation was not a meeting because no deliberation or action occurred.

Chapter 22 Response

The Board argued Thomas’ Chapter 22 claims amount to an employment grievance in the guise of an open records request, and are mislaid. It should be noted that other requests by Thomas, to include requests for employment records and for information about Thomas’ eventual replacement as ambulance director, have in fact been provided. The other records Thomas seeks, including files of an investigator employed by the County Attorney, the County HR contractor, and the County Attorney’s office were generated in anticipation and preparation of litigation and investigation into potential termination, which was eventually rendered moot by Thomas’ resignation. As such, these records are not subject to disclosure pursuant to Chapter 22. 

Applicable Law

“‘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(2).

“‘Open session’ means a meeting to which all members of the public have access.” Iowa Code § 21.2(3).

“Meetings of governmental bodies shall be preceded by public notice as provided in section 21.4 and shall be held in open session unless closed sessions are expressly permitted by law. Except as provided in section 21.5, all actions and discussions at meetings of governmental bodies, whether formal or informal, shall be conducted and executed in open session.” Iowa Code § 21.3.

“Every person shall have the right to examine and copy a public record and to publish or otherwise disseminate a public record or the information contained in a public record.” Iowa Code § 22.2(1).

Analysis

Chapter 21 Request to be added to the Agenda

Nothing in Iowa Code chapter 21 requires the Board to add Thomas to any meeting agenda. Iowa Code § 21.7 enables the Board to make and enforce “reasonable rules for the conduct of its meetings to assure those meetings are orderly, and free from interference or interruption by spectators.” Thomas was given the option to provide his information to the Board during the public comment portion of a Board meeting. There is no violation of Chapter 21 under these facts.

Agenda not Specific Enough

The agenda on June 10, 2024, including a provision for committee reports. During this segment, a Supervisor reported to the Board the process for receiving applications and hiring a new ambulance director. A question was raised about what would happen to the interim director if they are not hired because the person’s original position had been eliminated. Concern was also raised about how things have been done and advocating for hiring from within rather than going through the application process mentioned in the update. It was a lengthy discussion, but the conversation was about the process, timing, and how to move forward in finding the application. No action was taken or processes changed. Rather information was shared and the Board was aligned on how the process for hiring the ambulance director would be conducted. The conversation was lengthy only because questions regarding the matter were asked and information shared about the hiring process that had been ongoing.

Wanting a Closed Session

During the June 10, 2024, meeting, the Board did express a desire to be able to have a conversation in closed session regarding the ambulance director and accompanying issues. The Board asked the county attorney if there was any way to have a closed session to allow the Board to discuss these matters. The county attorney spent time specifically talking with the Board about how they could not meet as a majority in a meeting that is not open. The Board accepted the legal advice and did not go into closed session.

Supervisor Discussion as a Meeting

Thomas provided a 22-minute phone conversation between two out of the three County Supervisors. The phone conversation seems to have been conducted on speaker phone in a public area as both parties can be heard. There is also another female voice that can be heard commenting periodically. 

The County argues this “surreptitiously recorded” conversation between two supervisors is not a meeting because there was no deliberation. Deliberation is generally defined to include “discussion and evaluative processes in arriving at a decision or policy.” Hutchison v. Shull, 878 N.W.2d 221 n. 1 (Iowa 2016) (quoting Hettinga v. Dallas Cnty. Bd. Of Adjustment, 375 N.W.2d 293, 295 (Iowa Ct. App. 1985)). A gathering is considered “purely ministerial” and not a meeting under chapter 21 when members of a governmental body gather “without discussing policy or intending to avoid the purposes of the open meetings law.” Id.

The conversation ranges in topics, including: the supervisors’ frustrations about the hiring process for the new ambulance director, feeling they are left out of the loop, regret in how things were done up to that point, how they believe interviews should be conducted, and who they preferred to get the ambulance director position. They also discussed wanting to meet in closed session to discuss matters that have occurred. At one point they recognized they should not be talking together outside a regular meeting, but continue the conversation any way. 

This phone conversation included the very topics discussed in open meeting by the Board. In addition, the Board had specifically sought advice from the county attorney about whether they had any basis for having these discussions in a closed session. The attorney had advised that a quorum of the Board could not meet in closed session. Yet, a few days later, a quorum of the Board was audio recorded having a conversation about the same topic in a private meeting in violation of Iowa Code chapter 21. Under these facts, it is difficult to see that even if the conversation did not rise to “deliberation” between the supervisors, there was no intention by the supervisors to avoid the purposes of the open meeting requirements.

Records Requests

Thomas made a request regarding documents related to Thomas’ employment situation. The Board stated that Thomas’ personnel file was provided to him because of it was his personnel file, rather than as a records request. Communications between Thomas and the county attorney indicated the Board considered the records related to the investigation to be confidential. At this juncture it is not possible to determine whether all public records have been provided, whether documents not provided were properly withheld as confidential, and what efforts were taken by the Board to respond to the request for communications between the supervisors and others. Based on the telephone conversation between a majority of the Board, it seems likely there would be records of communications that may exist and a review for records should have been conducted. No documentation was provided this occurred.

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. This complaint meets the necessary requirements for acceptance.

A majority of the Board had a private telephone conversation discussing the very topics previously discussed in open session and after being advised there was no basis for closed session discussion. It is also uncertain whether any review of the records request was done for records of all listed individuals.

IT IS SO ORDERED:  Formal complaint 24FC:0070 is accepted pursuant to Iowa Code § 23.8(1) and Iowa Administrative Rule 497-2.1(2)(a). 

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 17, 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.

[1] Thomas’ complaint includes allegations regarding an employment dispute regarding whether he could be investigated and whether he revoked his Resignation of Employment and Release Agreement. These matters are beyond the jurisdiction of IPIB to address.