The Iowa Public Information Board
COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Revised Acceptance Order.
Jason Clayworth filed formal complaint 19FC:0138 on November 26, 2019, alleging that the Des Moines Water Works (DMWW) violated Iowa Code chapter 22. Mr. Clayworth submitted an open records request on November 14, 2019 to the DMWW requesting copies of any settlement agreements entered into between the DMWW, Scott Allen Richardson, and On Point Security Group LLC (On Point).
On November 18, 2019, Amy Kahler from DMWW responded to Mr. Clayworth’s request, providing three items:
(a) An undated document entitled “Memorandum of Understanding” signed by John E. Lande, the attorney for DMWW, and Mark Thomas, the attorney for On Point.
(b) An October of 2018 document entitled “Settlement and Release Agreement”, a settlement contract between DMWW and On Point.
(c) A document entitled “Summary of Settlement” referencing Iowa Code section 22.13 summarizing general terms of a settlement between DMWW, On Point, and Mr. Richardson.
The DMWW contracted with On Point to provide security for DMWW properties. On May 14, 2017, an On Point employee shot at Mr. Richardson while he was in the park. Mr. Richardson subsequently filed a lawsuit against DMWW and On Point, Case No. LACL138556 in Polk County District Court. The lawsuit was dismissed on January 9, 2019, after the settlement agreement between Mr. Richardson and On Point was signed.
Legal counsel DMWW responded to the complaint on December 9, 2019. He stated that the contract between Mr. Richardson and On Point was a confidential mediation communication under Iowa Code section 22.7(37) and Iowa Code Chapter 679C. He stated that DMWW was not a signatory to the agreement between On Point and Mr. Richardson.
He added that the contractual relationship between DMWW and On Point was not a delegation of a government function, so the analysis of Gannon v. Board of Regent’s et. al., 440 N.W. 2d 382 (Iowa 2005) did not apply.
Mr. Clayworth replied on January 2, 2020, stating that in his opinion security is a government function and the Gannon decision would apply to this factual situation.
IPIB staff and board members were provided copies of the agreement and the DMWW/On Point contract for services for confidential review pursuant to Iowa Code section 23.6(6). Counsel for DMWW stated the contract is considered a public record.
IPIB board members reviewed the settlement agreement in a closed session on June 18, 2020. Copies of the contract for services and a letter barring Mr. Richardson from Water Works park were distributed to IPIB board members prior to the July 16, 2020, meeting. Counsel for DMWW stated that a subsequent letter removing the bar does not exist.
Iowa Code section 22.7(37) defines certain mediation communications as confidential:
37. Mediation communications as defined in section 679C.102, except written mediation agreements that resulted from a mediation which are signed on behalf of a governing body. However, confidentiality of mediation communications resulting from mediation conducted pursuant to chapter 216 shall be governed by chapter 216. (Emphasis added.)
Iowa Code section 679C.102 defines “Mediation Communication” as a statement that occurs during a mediation.
The contract between On Point and DMWW grants DMWW the right to require On Point to discharge any security employee of On Point at DMWW discretion. Iowa Code section 22.2(2) states that a government body “shall not prevent the examination or copying of a public record by contracting with a non-government body to perform any of its duties or functions.”
Iowa Code section 22.13 states:
22.13 Settlements — government bodies.
When a government body reaches a final, binding, written settlement agreement that resolves a legal dispute claiming monetary damages, equitable relief, or a violation of a rule or statute, the government body shall, upon request and to the extent allowed under applicable law, prepare a brief summary of the resolution of the dispute indicating the identity of the parties involved, the nature of the dispute, and the terms of the settlement, including any payments made by or on behalf of the government body and any actions to be taken by the government body. A government body is not required to prepare a summary if the settlement agreement includes the information required to be included in the summary. The settlement agreement and any required summary shall be a public record. (Emphasis added.)
The language in Iowa Code sections 22.13, 22.7(37), and 679C.102 support the position that a written agreement reached after mediation which settles a legal dispute “on behalf of” a government body does constitute a public record.
What remains uncertain is whether the contractual relationship between OnPoint and DMWW is such that OnPoint had authority to bind DMWW with its settlement with Mr. Richardson, whether DMWW contracted with OnPoint to perform any of DMWW’s essential duties, and whether the settlement reached during the pendency of the lawsuit against DMWW and OnPoint is a public record as defined by Iowa Code section 22.13 or a privileged mediation communication pursuant to Iowa Code section 22.7(37).
Iowa Code section 23.8 requires that a complaint be within the IPIB’s jurisdiction, appear legally sufficient, and could have merit before the IPIB accepts a complaint. This complaint meets these threshold requirements.
IT IS SO ORDERED: Formal complaint 19FC:0138 is accepted pursuant to Iowa Code section 23.8(1) and Iowa Administrative Rule 497-2.1(2)(a). Parties are directed to work with IPIB staff to reach an informal resolution as required by Iowa Code section 23.9.
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 July 16, 2020. Pursuant to IPIB rule 497-2.1(4), the parties will be notified in writing of its decision.
By the IPIB Executive Director
Margaret E. Johnson
1. Proposal Specifications for Contract Security Services, section 3.04 “Des Moines Water Works reserves the right to accept or reject any individuals for the position of guard or supervisor. The respondent will replace any guard or supervisor immediately if Des Moines Water Works so requests.”
CERTIFICATE OF SERVICE
This document was sent by electronic mail on the _____ day of _____________, 2020, to:
Jason Clayworth, Complainant
John Lande, Legal Counsel for Des Moines Water Works