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13FC:0014

Date: 
10/04/2013
Subject: 
Braaksma / Osceola County Public Safety Commission - Chapter 21 - conduct of a public meeting, legally insufficient and outside IPIB jurisdiction
Opinion: 

4 October 2013


George Braaksma
5431 180th Street
Sibley, IA  51249

RE: Formal complaint concerning the Osceola County Public Safety Commission, August 14, 2013, meeting. IPIB Case No. 13FC:0014

Dear Mr. Braaksma:

The Iowa Public Information Board met on October 3, 2013, and reviewed your complaint. Upon review and discussion of the attached memorandum, the Board voted to adopt the recommendations made and dismiss this complaint.


Sincerely,


Margaret E. Johnson
Deputy Director


Cc: IPIB


By email only; no hard copy to follow.


October 3, 2013

Memo to the Iowa Public Information Board

RE: Three complaints concerning the Osceola County Public Safety Commission (Virgil Van Stelton, Sherry Engel and George Braaksma)

Three complaints, from the individuals noted above, were received by the staff on September 16, 17 and 20, 2013, concerning a Commission meeting on August 14, 2013. Those formal complaints were previously provided to Board members. In addition to the information provided by the complainants, the Commission provided a copy of the video/audio taping of the meeting.

A summary of the complaints:

       1. Van Stelton: The meeting was delayed for 18 minutes awaiting a member. During this time, other members were whispering. A motion was approved during the 
       meeting without “having proper and open discussion.” An attorney was hired without his name being mentioned. The published minutes did provide the name.  The
       members present need “to be fined and removed.”

       2. Engel: As noted above, plus the added complaint that the Commission secretary noted the name of the hired attorney in the minutes, although the name was not
       mentioned out loud during the meeting. The local newspaper also published the incorrect minutes. Sanctions requested: All present to be “fined, sanctioned, jailed
       and immediately removed from the board.”

       3. Braaksma: Same as above. In addition, this complainant was not provided an opportunity to talk at the meeting. Also, the Commission is “bullying the public” and 
       misusing public funds. Wants the members present removed from the Commission, new members selected who will do their job properly and for other fines and
       sanctions as allowed by law.

Upon full review of the files, agenda and minutes information available online and review of the video of the pre-meeting and meeting activities, I arrived at the following findings:

      1. The Osceola County Public Safety Commission is a 9 member Commission including representatives of the various towns and governments in Osceola County. The
      members serve under a 28E agreement to provide public safety services to the county.

      2. The public meeting was scheduled for 5 p.m. on August 14, 2013. The meeting was delayed for 18 minutes to await the arrival of a sixth member. Initially four
      members are present. A fourth arrives at around 5:06 p.m. The sixth member arrives around 5:18 and the meeting is then called to order.

      3. Prior to the meeting being called to order, the members present review the materials provided for review and chat among themselves. Most of the conversations can
      be heard on the videotaping. Somewhere around 5:15 p.m., the Chair points out to two of the members present that the meeting materials include correspondence
      from a proposed attorney and states that he will recommend approval. Another member (female) asks something about whether there is a “conflict of interest” with the
      response appearing to be “No”. Five members total are there at the time, the meeting has not commenced, the public is present and this is being videotaped.

      4. It is apparent from the videotape that there are informational packets for the members and additional packets at the end of the table where the complainants sit.

      5. Item #7 on the agenda is “Discuss replacement of public safety attorney.” The meeting is called to order, and in due time, that agenda item is called by the Chair.
      A discussion ensues among the members. At no time during the meeting is the name of this attorney spoken; the members refer to the handout in front of them. 
      A Motion is made to approve retaining this attorney, seconded and approved without the name of the attorney mentioned. However, the members present describe
      this attorney as being previously the Commission’s attorney, currently the attorney for the landfill and also from Des Moines.

DISCUSSION:

The Iowa Public Information Board (IPIB) is tasked with the oversight and enforcement of violations of Chapters 21 and 22 of the Iowa Code, concerning open meetings and public records. The IPIB jurisdiction is specifically limited to questions and concerns under these statutes. While a valid issue might be raised under the obligations and responsibilities imposed by another law or rule, it would not fall within the limited jurisdiction of the IPIB. For example, the IPIB could address a situation when a group improperly goes into closed session, but not how that group voted in open session. In other words, the IPIB is more likely to have jurisdiction over the ‘form’ of the meeting rather than the ‘substance.’

Upon review of the allegations posed by these three complainants, it is my opinion that the IPIB does not have jurisdiction to provide the relief requested for the reasons listed below:

       1. Van Slelton: The delay of the meeting, regardless of the reason, is not a violation of Chapter 21. The review of the video recording confirms that conversations
       were occurring, but does not confirm a violation of Chapter 21. The discussion during the meeting on hiring of an attorney was open. There was no indication that
       any member of the Commission was prohibited from discussing the agenda item. The agenda did note this issue, and information was provided to the members
       present. While it would have been more informative to have included the name of the attorney in the motion, it was clear from the video recording that the members
       reached a knowing consensus in approving the attorney. The wisdom of this hiring decision is not a matter within the jurisdiction of the IPIB.

       2. Engel: Given that the name of the attorney hired was not included in the motion for approving the attorney, the secretary of the Commission inserted that into
       the minutes. Iowa Code Section 21.3 states that the minutes “shall show the date, time and place, the members present, and the action taken at each meeting.”
       There is no evidence that the prepared and published minutes omitted any actions by the Commission. In addition, the IPIB has no jurisdiction over the local
       newspaper as it is not a governmental body.

      3. Braaksma: Chapter 21 does not impose a statutory duty upon the Commission to allow non-members an opportunity to speak. Section 21.7 allows the public
      to use cameras or recording devices at any open session. In fact, Section 21.7 states: “Nothing in this chapter shall prevent a governmental body from making and 
      enforcing reasonable rules for the conduct of its meetings to assure those meetings are orderly, and free from interference or interruption by spectators.” Concerns
      about the actions of the Commission, such as bullying or misuse of public funds, are not issues reviewable under the specific boundaries of Chapters 21 and 22.

While all three complaints claim a violation of Chapter 22, public records, there are no factual allegations concerning a refusal to provide copies of public records in any of these three complaints.

Iowa Code Section 23.8 provides two options for action by the IPIB upon receipt of a complaint, the second of which reads:

      “Determine that, on its face, the complaint is outside its jurisdiction, is legally insufficient, is frivolous, is without merit, involves harmless error, or relates to a 
      specific incident that has previously been finally disposed of on its merits by the board or a court. In such a case the board shall decline to accept the complaint.
      If the board refuses to accept a complaint, the board shall provide the complainant with a written order explaining its reasons for the action.”

For the reasons set forth above, I recommend that the IPIB decline to accept these three complaints on the ground that they are outside the jurisdiction of the IPIB and legally insufficient. Even if within the IPIB jurisdiction, I am of the opinion that any error presented is harmless error.

Margaret E. Johnson
Deputy Director

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