The Iowa Public Information Board
COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order.
On June 15, 2020, Eric Henely filed formal complaint 20FC:0060, alleging that the Return to Learn Committee of the Gilbert Community School District (RTL) violated Iowa Code chapter 21.
Mr. Henely alleged that the Return to Learn Committee, consisting of five subcommittees, met at various times in May and June of 2020 without posting notice, holding open meetings, or keeping minutes. He expressed six concerns:
How were these committee members selected?
Who is on the various committees?
Why was no notice given of the meetings?
Why were the meetings not open to the public?
Why are there no minutes of the meetings?
How can the RTL committee recommendations be reviewed when the state deadline for submission of the reports is July 1, 2020, and the next school board meeting is July 20, 2020?
He asked that the IPIB release the names of the committee members, determine how they were selected, require past and future minutes of all meetings be available, require notice for future meetings, require all meetings be open to the public, provide training on open meetings to the committee members, and fine each committee member $100.00.
Mr. Henely stated that he believed the RTL committee and its five subcommittees met the definition of a governmental body pursuant to Iowa Code section 21.2(1)(h) which includes in the definition of a governmental body:
h. An advisory board, advisory commission, advisory committee, task force, or other body created by statute or executive order of this state or created by an executive order of a political subdivision of this state to develop and make recommendations on public policy issues.
Legal counsel for the Gilbert School District responded to the complaint on June 16, 2020. Counsel stated that the Director of Teaching, Learning and Leadership, a school district employee, had organized a group to set up remote learning on April 28, 2020. When the directive was issued by the Iowa Department of Education on May 8, 2020, to prepare and submit ‘Return to Learn’ plans by July 1, 2020, the TLL Director and her group undertook to review the five parts of the plan by dividing into five subcommittees. This occurred on May 15, 2020.
The Gilbert School Board did not establish the RTL committee, so this group was not “created by an executive order of a political subdivision of this state.” Therefore, the requirements of Iowa Code section 21.2(1)(h) to define the RTL as a governmental body do not exist.
Mr. Henley provided a copy of school board policy 208, which requires the school board to form ad hoc committees by official board resolution. The RTL was not formed by official board resolution. Committees formed pursuant to policy 208 are required to hold open meetings. Had the RTL committee been formed by official board resolution, it might have then met the definition of a ‘governmental body’ pursuant to Iowa Code section 21.2(1)(h).
The recommendations of the RTL were presented to the Gilbert School Board at a meeting on July 1, 2020, prior to submission of the plan to the Iowa Department of Education.
Whether an ad hoc group of a governmental body becomes a governmental body as defined by Iowa Code section 21.2(1) has been addressed by Iowa courts. In Hummel v. Des Moines Independent Community School District, an unpublished Iowa Court of Appeals opinion, the Court applied the Iowa Supreme Court reasoning in Mason v. Vision Iowa Board, 700 N.W.2d 349 (Iowa 2005) in determining that a school review committee did not meet the definition of a ‘governmental body’:
We believe resolution of this issue is controlled by the court’s decision in Mason, which emphasized that “[a] gathering of a governmental body must be open to the public only where there is deliberation or action upon any matter within the scope of the governmental body’s policy-making duties.’” 700 N.W.2d at 354 (quoting Iowa Code section 21.2(2)). “Policy-making,” according to Mason, is more than recommending or advising what should be done. Id. (stating that to “recommend a course of action is merely to suggest favorably a particular plan of action”). It instead involves “deciding with authority a course of action.” Id. Thus, the court’s opinion in Mason clearly forecloses Hummel’s argument that “[e]ven if the Committee did not have authority to make a final determination that would irrevocably bind the School Board, this does not mean it did not have policy making duties.”
The RTL committee gathered information concerning various ways the school district could reopen schools, focusing on the sub-topics of Infrastructure, Health & Safety, Curriculum & Instruction, Social-Emotional-Behavioral Health, and Equity as requested by the Iowa Department of Education. The final review and submission came from the Gilbert Community School District Board of Education after deliberation at an open meeting. The school board continues to be responsible for monitoring and modifying this plan.
Based upon a review of the Iowa Code and court opinions, the RTL committee and its subcommittees do not meet the definition of an advisory committee. Therefore, the RTL committee was not required to comply with the requirements of Iowa Code chapter 21.
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 does not meet these requirements.
IT IS SO ORDERED: Formal complaint 20FC:060 is dismissed as legally insufficient pursuant to Iowa Code section 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 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, J.D.
1. The superintendent of the Gilbert School District provided the names of all committee and subcommittee members to Mr. Henely on June 23, 2020. Other information in answer to his questions was also supplied on that date. Notice, agendas, and minutes did not exist as RTL was not considered to be subject to chapter 21.
2. It is not within the jurisdiction of the IPIB to enforce school policies.
3. Mr. Henley was present and spoke at this meeting. He raised concerns about how the school board conducted the meeting with its social distancing requirements. He stated he was unable to hear portions of the discussions while awaiting his turn to address the school board. The school board provided electronic access to the meeting that he may have been unable to access contemporaneously.
4. 767 N.W.2d 420 (Iowa Court of Appeals 2009), unpublished.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of July, 2020, to:
Andrew J. Bracken, legal counsel for the Gilbert Community School District