24FC:0075 Karen Davis/City of Zearing - Dismissal Order

Date:
10/17/2024

Subject:
Karen Davis/City of Zearing - 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 September 3, 2024, Karen Davis filed formal complaint 24FC:0075, alleging the City of Zearing violated Iowa Code chapters 21 and 22.

Facts

On July 9, 2024, the city council for the City of Zearing convened a special open meeting, during which the Complainant, Karen Davis, was terminated from their position as city clerk. Following the adjournment of this meeting, Mayor Martin Herr and three of the five current council members (Sandy Parisho, Robin Johnson, and Diane Pascuzzi) remained in the City Hall, along with Davis. Davis alleges, in the first of two formal complaints filed with IPIB, this constituted an unlawful meeting in violation of Iowa Code § 21.3(1).

In support of the chapter 21 claim, Davis provided video evidence of a conversation with the Mayor and three city council members. In the first clip, Davis raises the issue of “this quorum that you guys keep having here and deciding things and talking,” to which Herr and one of the city council members respond “Don’t go there.” In the other two clips, the four city officials and Davis discuss the return of office keys and a government-issued laptop, the latter of which was located at Davis’ home. Davis offers to return the laptop the next morning, and Pascuzzi says they will follow Davis home to retrieve the laptop instead. The City agreed this conversation occurred outside the scheduled council meeting, as well as another portion of the same conversation in which Herr asked Davis to come back to the office the next morning to complete payroll to ensure timely payment for the remainder of the pay period. According to the City, no other matters pertaining to city business were discussed, which is reflected in the video evidence provided by Davis.

On July 16, 2024, Davis filed an open record request form with the City seeking a copy of meeting minutes from the July 9 meeting. The City mailed meeting minutes from a different meeting held on April 23, 2024. Davis alleges reaching out to the City via email to notify them of this discrepancy, but Davis claims the correct minutes were never sent.

In its response, the City acknowledged Davis was initially provided the incorrect minutes, which it claimed was unintentional. According to the City, the correct minutes for the July 9 meeting were ultimately provided to Davis as an email attachment on July 18, two days after the records request.

Davis filed this formal complaint on September 3, 2024. IPIB has not received any further correspondence from Davis since this time.

Applicable Law

“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(1).

Iowa Code § 21.2(2) 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. The law goes on to state, “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.”

Analysis

Chapter 21 Complaint

Not all meetings of a governmental body include deliberation or action related to policy-making duties. 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” when members of a governmental body gather “without discussing policy or intending to avoid the purposes of the open meetings law,” though ministerial activities may become deliberation within the meaning of Iowa Code § 21.2(2) when members “engage in any discussion that focuses at all concretely on matters over which they exercise judgment or discretion.” Id. Looking to relevant IPIB precedent, the board has previously determined that a discussion between a quorum of city council members was “purely ministerial” and thus not a “meeting” for the purposes of chapter 21 where the sole purpose of discussion was to schedule times for interviewing job applicants. See 20FC:0027 Logan Nehman/Fonda City Council.

Only two topics plausibly related to city business were alleged to have been discussed in the post-adjournment conversation on July 9, 2024: 1) the return of a city-owned laptop from Davis’ house and 2) whether Davis would come in the following morning to complete payroll. Neither of these matters implicate the policy-making authority of the city council as governmental body, nor do they inherently require the judgment or discretion of its members in this capacity. Instead, the purpose was simply to confirm the return of city property from a former employee and ensure that same employee would receive their final paycheck on time.

There is no dispute the three city council members present constituted a majority of a governmental body, as defined by Iowa Code § 21.2(1). Nevertheless, the subject of the conversation was purely ministerial, meaning there was no meeting in violation of Iowa Code § 21.3.

Chapter 22 Complaint

Davis also alleged an open records violation from the receipt of incorrect minutes in response to a records request submitted on July 16. The City agrees it erroneously sent the wrong record in the initial mailing, but the correct minutes from the July 9 meeting were provided to Davis on July 18, two days after the request.

Chapter 22 is largely silent as to the time for response to a records request, though case law establishes a response must be reasonably prompt, after considering the size and nature of the request, including factors such as the specificity of the request, the number of potentially responsive documents, the age of the documents, the location of the documents, and whether documents are stored electronically. See 22AO:0004 (providing guidance on the time government bodies have to produce requested records).

Two days would be considered sufficiently prompt for a records request. It is not clear that providing a non-responsive record is a violation of any provision of chapter 22 in and of itself. Even if there were a violation, it would constitute harmless error, as the City’s subsequent email with the correct record attached fully complied with their requirements under chapter 22.

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 facts alleged in Davis’ first complaint do not amount to an unlawful meeting. To the extent there was any chapter 22 violation alleged in Davis’ second complaint, the violation was promptly and entirely remedied by the City’s timely records response.

IT IS SO ORDERED:  Formal complaint 24FC:0075 is dismissed as legally insufficient or involves harmless error 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 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.