17AO:0006 Minutes as evidence of budget irregularities

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Advisory Opinions
Advisory Opinions: Nonjurisdictional

17AO:0006

Date: July 20, 2017

Subject: Minutes as evidence of budget irregularities

Kevin Kilgore
1695 115th Street
Diagonal, Iowa 50845

Dear Mr. Kilgore:

This opinion is in response to your letter of June 9, 2017, and June 29, 2017, update requesting an opinion from the Iowa Public Information Board (IPIB) pursuant to Iowa Code section 23.6 and rule 497β€”1.2.  We note at the outset that IPIB’s jurisdiction is limited to the application of Iowa Code chapters 21, 22, and 23, and rules in Iowa Administrative Code chapter 497.  Advice in a Board opinion, if followed, constitutes a defense to a subsequent complaint based on the same facts and circumstances.

FACTUAL STATEMENT:  You request an opinion concerning whether certified or published minutes are adequate evidence for prosecution.

QUESTIONS:

  1. Do the certified/published Board of Supervisors minutes constitute an adequate evidentiary record for purposes of prosecution if an implicit or explicit statutory violation is indicated by those minutes?
  2. Do the certified/published Board of Supervisors minutes constitute an adequate evidentiary record for purposes of prosecution if a public utterance by an individual is contradicted by an official document?
  3. What process exists to effect that prosecution?

OPINION:

The questions you ask are not within the jurisdiction of the Board.  Rule 497-1.2 states:

497β€”1.2(23) Requirements for requesting board advisory opinions. 1.2(1) Jurisdiction. The board will only issue advisory opinions pertaining to Iowa Code chapters 21 and 22, or rules adopted thereunder. The board shall not have jurisdiction over the judicial or legislative branches of state government or any entity, officer, or employee of those branches, or over the governor or the office of the governor.

Determining whether a document is considered to be adequate evidence for prosecution of a violation would be determined by a presiding judge or jury.  The Iowa Rules of Evidence, chapter 5, provide guidance on admissibility and value of evidence.

Pursuant to Iowa Administrative Rule 497-1.3(3), a person who has received a board opinion may, within 30 days after the issuance of the opinion, request modification or reconsideration of the opinion.  A request for modification or reconsideration shall be deemed denied unless the board acts upon the request within 60 days of receipt of the request.  The IPIB may take up modification or reconsideration of an advisory opinion on its own motion within 30 days after the issuance of an opinion.

Pursuant to Iowa Administrative Rule 497-1.3(5), a person who has received a board opinion or advice may petition for a declaratory order pursuant to Iowa Code section 17A.9.  The IPIB may refuse to issue a declaratory order to a person who has previously received a board opinion on the same question, unless the requestor demonstrates a significant change in circumstances from those in the board opinion.

BY DIRECTION AND VOTE OF THE BOARD
Suzan Stewart 
E. J. Giovannetti
Keith Luchtel
​Monica McHugh
Frederick Morain
William Peard
Julie Pottorff
Renee Twedt
Mary Ungs-Sogaard

Submitted by:
Margaret E. Johnson, Interim Executive Director

ISSUED ON:
July 20, 2017