24FC:0090 Sarah Weber/City of Orange City - Acceptance Order

Date:
12/19/2024

Subject:
Sarah Weber/City of Orange City - 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 October 9, 2024, Sarah Weber filed formal complaint 24FC:0090, alleging the City of Orange City (City) violated Iowa Code Chapter 21.

Facts

In August 2024, Sarah Weber submitted a Chapter 22 request with the City, seeking records relating to a local livestock ordinance. Responsive records were released in two batches, on September 16 and October 3. Weber paid all associated costs charged by the City.

On October 9, 2024, Weber filed formal complaint 24FC:0090, which made two allegations:

1. The City was conducting “2x2 meetings” These “meetings” fit within the definition provided by Iowa Code § 21.2(2), and therefore the City violated Chapter 21 by failing to provide notice or public access; and
2. The City violated Chapter 21 by making policy decisions via emails between council members which meant deliberations were inaccessible to the public.

Facts Regarding the 2x2 Meetings

Weber alleges the City has been engaged in a long-running practice of holding 2x2 meetings. These meetings are discussions held in private between up to two council members, the mayor, and the city administrator. Because the 2x2 meetings were not held as official meetings of the city council, there are no recordings or minutes available for review. All gatherings were outside the view of the public.

According to the City, these meetings are used “to inform council members of upcoming issues that may need to be dealt with, and to allow council members an opportunity to share their own questions or concerns.” Because these 2x2 meetings only have one or two council members, the City argues they never reach a quorum, placing them outside the scope of the Iowa Code § 21.2(2) definition of a “meeting.”

The City submitted signed affidavits from all council members, the city administrator, and the mayor in conjunction with this issue. Both the city administrator and the council members attest the purpose of these meetings was solely to inform members of the options available to them, with no attempts to push members towards any particular decision. The City’s affidavits also state the administrator did not communicate the views of absent members during these meetings. The affidavits also indicate that 2x2 meetings are occasionally used for similar purposes “to stay up to date on issues and to learn about upcoming agenda items for council meetings.”

Facts Regarding the Use of Email Between Council Members

Weber provided substantial documentation on the use of emails by the Council that showed potential deliberation occurring between a majority of the council members outside a formal City meeting.

The City argued the emails could not create a potential meeting because “nothing was actually decided in these emails,” “none of the statements made by council members contained information of which they were not already aware,” and none of the emails “contained any secret information or had any impact on the final policy decision.”

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). 

Analysis

Iowa Code § 21.2(2) defines a meeting as having four key attributes: 1) there must be a majority of members; 2) of a governmental body subject to Chapter 21; in which 3) members engage in deliberation; 4) on a matter within the scope of their policy-making duties. Unless all four requirements are met, there is no meeting, and Chapter 21 does not apply. The City Council has five members, so three members would constitute a majority of members.

The complainant alleges the City’s 2x2 meetings and certain emails exchanged between council members constitute meetings within the scope of Chapter 21.

I. Orange City’s Practice of Holding 2x2 Meetings

The City argues that 2x2 meetings do not meet the definition of a meeting because they involve, at most, two council members, whereas a majority would require at least three members present.

In Hutchison v. Shull, the Court found a three-member Board of Supervisors intentionally developed a “sophisticated methodology of communicating effectively with one another” in private, with the city administrator acting as a “conduit” intermediary to develop and deliberate on a reorganization plan outside the public’s view. 878 N.W.2d 221, 235–36 (Iowa 2016). The Court concluded the County’s one-on-one discussions could constitute a Chapter 21 “meeting” despite the fact that only one supervisor was present at any given time. Id. at 228.

The City argues that the 2x2 meetings held in response to the chicken ordinance are distinguishable from the meetings in Hutchison, as the city administrator “did not relay communications between council members, did not inform council members what other members were thinking or how they were planning to vote, and in no way did he use these meetings in an attempt to build consensus or act as any sort of conduit for private deliberations among a quorum of council members.”

Despite these sworn affidavits, the surrounding circumstances of the July 2x2 meetings suggest a meeting likely occurred under the Hutchison framework. First, the council member who requested the meetings stated that “I have asked [the city administrator] if we can have ‘2 x 2’ meetings with council members to get a direction as to how people will vote” and suggested that “[i]f there is a 3-2 majority to make an adjustment to have chickens, then let’s come to the next meeting with a proposal/vote and get on with it. (no more council room debates/feedback).” In the administrator’s response, he stated that the “Council will need to identify a clear direction as soon as possible. As I heard from one Council member, we need to make a decision and move on.” 

Even if what actually happened during the July meeting differed from the apparent intent reflected in these statements, this strongly suggests an understanding amongst members of the City that 2x2 meetings are generally available as a means of reaching consensus on controversial issues outside the public’s view. [1]

Considering all the evidence, it is highly likely the 2x2 meetings held by the City were meetings under the precedent established in Hutchison. Specifically, at least one of the objectives of these meetings was to build consensus amongst council members in closed session through the use of the mayor and/or city administrator as intermediaries. The City’s use of these meetings likely meets the standards set forth in Chapter 21.

II. Email Conversations Between Council Members

The second alleged violation relates to the email conversations produced through the complainant’s Chapter 22 records request. The emails provided show the council members communicating amongst themselves and with the city administrator regarding the chicken ordinance and other topics. The conversations are related to topics within council’s official policy-making duties. Thus, the only two issues in contention to determine whether these emails constituted a meeting are 1) whether council members deliberated or merely received information and 2) whether an email conversation qualifies as “a gathering in person or by electronic means, formal or informal.”

In response to the first issue, the City argues that email discussions do not constitute deliberation within the scope of policy-making duties because “[n]o decisions were made” and the council members involved in the discussions “voted in compliance with the law” at subsequent council meetings. The City acknowledged some discussion occurred in emails between council members, but it characterized these discussions as hypothetical. For example, describing one email, the City stated: “This email does not constitute deliberation because [the council member] weighs multiple options with the highlighted word ‘IF’ indicating multiple paths were in play.” [2]

 However, the court has found a “meeting may develop, for example, if a majority of the members of a body engage in any discussion that focuses at all concretely on matters over which they exercise judgment or discretion.” Hettinga v. Dallas Cnty. Bd. of Adjustment, 375 N.W.2d 293, 295 (Iowa Ct. App. 1985) (quoting Op. Att’y Gen. # 81–7–4(L) at 10). Where members of a government body merely receive information without weighing in with their own opinions or the reasoning behind those opinions, a gathering remains non-deliberative and therefore does not qualify as a meeting. See, e.g., Dooley v. Johnson Cnty. Bd. of Sup’rs, 2008 WL 5234382 (Iowa Ct. App. Dec. 17, 2008) (finding no meeting occurred where board members met to receive details on a report prepared by an engineering firm without discussion between the members on the report). On the other hand, deliberation does occur where members inject their own commentary, discussing “thoughts, concerns, opinions, or potential action on the matters” before the government body. 24AO:0004, Attendance at Social and Ministerial Events.

Because the council members discussed their “thoughts, concerns, opinions, or potential action on the matters,” deliberation occurred. It does not matter that the final vote on the issue was conducted during open meeting as to whether a meeting occurred while they were deliberating. See Iowa Code § 21.2(2) (requiring only deliberation of a majority of members of a government body).

As for the question of whether email conversations can qualify as meetings, the present complaint is distinguishable from previous “email chain” cases in which IPIB declined to find a meeting occurred.[3] In this case, the emails provided to IPIB include back-and-forth conversation between at least four of the five council members, meaning a clear majority were engaged in active discussion on the issue through emails.

The asynchronous nature of email messages does raise a question of whether the email communications have the “temporal proximity” required to form a meeting as stated in Telegraph Herald, Inc. v. City of Dubuque, 297 N.W.2d 529, 532 (Iowa 1980). In the Hutchison case, however, one of the grounds the Court distinguished the Telegraph Herald holding on temporal proximity requirement was the serial sub-majority meetings to interview candidates in the case never included any deliberation among the councilmembers. 878 N.W.2d at 228. Similarly, in reviewing the email exchanges, a majority of the council was included in the email chains and act deliberation did occur among the councilmembers. Unlike in Telegraph Herald in which a sub-majority of members met and waited to deliberate in open session creating no temporal proximity in the meetings, in this matter, the council members appear to engage in deliberation amongst a majority of members in an ongoing discussion.

Based on this analysis, IPIB concludes City council members were likely engaged in a “meeting” when they shared “thoughts, concerns, opinions, or potential action on the matters” with one another via email messages on the chicken/livestock ordinance, a matter within their policy-making duties.

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.

The City’s use of 2x2 meetings to reach consensus on issues before the City Council likely meets the definition of a meeting under the Hutchison analysis. Further, the council’s use of email messaging to deliberate on matters within its policy-making duties also likely created a meeting under Iowa Code chapter 21.

IT IS SO ORDERED:  Formal complaint 24FC:0090 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 December 19, 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] A former councilmember shared that 2x2 meetings had become “very frequent” in the latter half of his term, particularly when matters of public controversy were presented to the council. He stated the city administrator would use 2x2 meetings not only to share information and options, but also to summarize the positions of the council, build consensus, and reach proposed resolutions before open meetings were convened on the same topics. This calls into question the content of the specific 2x2 meetings in this matter.

[2] In addition to the emails produced from Weber’s records request, Weber also provided copies of an email thread obtained through a former city council member. These emails, from 2023, show the council members using a “1-2-3” rating system for their first, second, and third ranked choices in making a hiring decision. This information suggests the City has also utilized email for potential deliberation for a period before this complaint was filed.

[3] See, e.g., 21FC:0110, Ellen Heather/Mitchellville Library Board (finding no meeting where messages relating to an upcoming board meeting were sent to all members of a library board, but no member ever replied); 23FC:0098, Joseph Foran/City of Audubon (finding no meeting where one council member shared opinions on an upcoming matter, but none of the other members ever engaged).