Date:
02/20/2025
Subject:
Joe Goche/Kossuth County Board of Supervisors - Probable Cause Report and Order
Opinion:
The Iowa Public Information Board
In re the Matter of: Joe Goche, Complainant And Concerning: Kossuth County Board of Supervisors, Respondent |
Case Number: 24FC:0109 Probable Cause Report
|
|---|
COMES NOW, Erika Eckley, Executive Director for the Iowa Public Information Board (IPIB), and enters this Probable Cause Report:
On November 13, 2024, Joe Goche filed formal complaint 24FC:0109, alleging Kossuth County Board of Supervisors (Board) violated Iowa Code chapter 21.
The IPIB accepted this Complaint on November 21, 2024
Facts
Goche alleges the Board violated Iowa Code Chapter 21 when it voted to send informational letters and add to Kossuth County Drainage District Policy the requirement to send an informational letter to landowners of any district at the start of any litigation and a yearly update between when assessments are approved and mailed out. Goche alleges the item was not on the September 17, 2024 Board Agenda, because it only stated: “Drainage District 80 Assessment.”
At the September 10, 2024, Board meeting, the Board addressed a question raised by a landowner in Drainage District 80 (DD80) about an assessment they received because the cost was not related to any work done in the district. Most of the cost was related to litigation concerning DD80 that was appealed to the Iowa Supreme Court.[1] The Board agreed to consider how to respond to the question raised on the DD80 assessment at the following meeting on September 17, 2024. The Board said it would address the DD80 assessment first and consider following the process for other districts.
At the September 17 meeting during agenda item “Drainage District 80 Assessment,” the Board deliberated on how best to inform District landowners about litigation costs assessed to the District. They voted to work on a policy to be brought to the Board that would include sending a letter to landowners in the District at the start of litigation and then again before the District assessments are sent out so landowners are informed of the litigation costs before receiving the assessments. In responding to the complaint, the Board argues the decision of the landowner notice issue was inextricably linked with the discussion of DD80 assessment.
Goche stated he attended the September 17 meeting because of the agenda item “Drainage District 80 Assessment.”
Applicable Law
“[A] governmental body shall give notice of the time, date, and place of each meeting including a reconvened meeting of the governmental body, and the tentative agenda of the meeting, in a manner reasonably calculated to apprise the public of that information.” Iowa Code § 21.4(1)(a).
Analysis
“[T] the issue to be resolved is not whether the notice given by the governmental body could have been improved, but whether the notice sufficiently apprised the public and gave full opportunity for public knowledge and participation. In determining whether the public was sufficiently apprised, we may consider the public’s knowledge of an issue and actual participation in events in light of the history and background of that issue. Cf. Keeler v. Iowa State Bd. of Pub. Instruction, 331 N.W.2d 110, 111 (Iowa 1983). We agree with the trial court’s conclusion that the sufficiency of the detail on the tentative agenda must be viewed in the context of surrounding events. Evidence in the record indicates that the issue … had been on a previous agenda and previously discussed.” KCOB/KLVN, Inc. v. Jasper County Bd. of Sup’rs, 473 N.W.2d 171, 173 (Iowa 1991).
During the agenda items related to drainage districts at the September 10 meeting, the Board brought up an issue regarding landowners’ lack of awareness of attorney fees impacting their assessment in DD80.[2] The Board gathered some information, but agreed to wait until the September 17 meeting to discuss how to address the matter when it could be listed as an item on the agenda. They agreed to discuss the “Drainage District 80 Assessment.” Similar to the facts of the KCOB/KLVN case, the matter had been discussed at the previous Board meeting. Further, the DD80 landowners had received their assessments and had asked questions about the costs.
Goche stated he attended the Board meeting on September 17 because the DD80 assessment was listed on the agenda. Goche stated he believed the Board was going to take an “impounded and impeded watershed” off the assessment schedule and charge repair costs to the United States Fish and Wildlife Service as he and a neighbor, also in attendance, had requested the Board to do.[3]
Viewed in the context of the surrounding events in the community, the agenda item was sufficient to notify the community regarding the discussion concerning notice of the costs causing the drainage district assessment. The community had received the assessments. The community had raised questions about what caused the assessment. The Board discussed the fact questions had been raised about the assessments at the September 10 meeting. The Board agreed at the September 10 meeting to put how to inform the landowners about the litigation costs causing the DD80 assessment on the September 17 agenda. The Board even agreed what the agenda item for September 17 would say at the September 10 meeting. Viewed in this context of community knowledge, the agenda was sufficient to notify the community regarding the topic.
Was any Action by the Board Necessary?
Even if there is a question as to the sufficiency of the notice, any error that exists would be harmless error. Chapter 21 does not specifically mandate what actions require discussion and deliberation by a government body. In a previous case, IPIB found no violation when a City Manager sent a letter of support for a housing project without formal approval by the Council. The letter was not in the form of a resolution or committed the City to formal action but rather explained potential city plans.[4] In this matter, the Board responded to a landowner’s questions regarding why his assessment was so high and voted to send information to drainage district landowners and create a policy to notify landowners about litigation and costs that would be brought before the Board for review and final action.
There likely was no need to take formal action to direct staff to send informational letters to DD80 landowners or to draft a policy to be brought to the Board for formal approval. Even if action were necessary for the letters to be sent or to draft a policy, the public will have knowledge of the proposed policy when it is brought before the Board for approval. The draft policy has not yet been presented to the Board for review, deliberation or action. When it is, the matter will be placed on the agenda, the policy documents will be public records, and the public will have the opportunity to provide input if they prefer a different policy regarding drainage district landowners receipt of information regarding litigation costs impacting drainage district assessments.
IPIB Action
The Board may take the following actions upon receipt of a probable cause report:
a. Redirect the matter for further investigation;
b. Dismiss the matter for lack of probable cause to believe a violation has occurred;
c. Make a determination that probable cause exists to believe a violation has occurred, but, as an exercise of administrative discretion, dismiss the matter; or
d. Make a determination that probable cause exists to believe a violation has occurred, designate a prosecutor and direct the issuance of a statement of charges to initiate a contested case proceeding.
Iowa Admin. Code r. 497-2.2(4).
Recommendation
The Board brought up a question raised by a landowner regarding the costs driving the DD80 assessment. The Board set the matter for consideration of how to address the question raised at the following Board so the item could be added to that meeting’s agenda. The Board’s action was to send informational letters and prepare a policy for review by the Board at a later date. At least two DD80 landowners were in attendance because DD80 assessment was listed on the agenda.
By the IPIB Executive Director
Erika Eckley, J.D.
[1] William and Mary Goche, LLC v. Kossuth Cnty. Bd. of Supervisors, 5 N.W.3d 650 (Iowa 2024).
[2] All Board meetings are video-recorded and available online.
[3]Goche does not explain how the agenda item he contests provided more information about this USFWS issue than a discussion about notification to all landowners about costs the assessment was based on. Nonetheless, by Goche’s own admission, he, and at least one other DD80 landowner, had notice the Board would discuss matters related to the DD80 assessment.
[4]24FC:0061: Kelly Caldwell/Carroll City Council - Dismissal Order
Under Iowa Admin. Code r. 497-2.2(4) the Board takes the following action:
- a. Redirect the matter for further investigation;
- b. Dismiss the matter for lack of probable cause to believe a violation has occurred;
- c. Make a determination that probable cause exists to believe a violation has occurred, but, as an exercise of administrative discretion, dismiss the matter; or
- d. Make a determination that probable cause exists to believe a violation has occurred, designate a prosecutor and direct the issuance of a statement of charges to initiate a contested case proceeding.
By the Board Chair
___________________________________
Monica McHugh