Date:
11/19/2015
Subject:
Vickie Jeanes / Ringgold County (Probable Cause Report and Order)
Opinion:
Iowa Public Information Board
|
In re the Matter of: Vickie Jeanes, complainant And concerning: Ringgold County Board of Supervisors |
Case Number: 15FC:0033 PROBABLE CAUSE REPORT |
SUMMARY: Complainant alleges violation of Chapter 21, open meetings by the Ringgold County Board of Supervisors. Complaint was accepted by the Iowa Public Information Board. Informal resolution was unsuccessful. Recommend a finding of probable cause and dismissal of complaint.
Background
On May 12, 2015, Vickie Jeanes filed a formal complaint with the Iowa Public Information Board (IPIB). She alleged that on May 8, 2015, two members of the three-member Board of Supervisors (Board) discussed county business together at the county Secondary Roads Department. This would constitute an illegal meeting under Iowa Code Chapter 21, as no notice or agenda were posted to notify citizens about a meeting. She included the county engineer in her complaint, but the county engineer was dismissed as he is not a governmental body subject to Chapter 21.
The county attorney filed a response on May 18, 2015. He replied with a recitation of the events of that day. The encounter at the Secondary Roads Department was not planned. The two involved supervisors arrived separately and at different times, with some overlap when both were speaking with the engineer. Both engaged the county engineer in a discussion of matters currently pending before the Board. The two supervisors left at the same time and discussed the “culvert project” while they were standing outside the building.
The incident was mentioned at the Board meeting on May 11, 2015, when the engineer expressed discomfort with having two supervisors drop by his office to discuss county business. The county attorney said the two supervisors initially took the position that “they did not make any decisions during their discussion and did not violate the open meetings law.”
Because the Board is a three-member Board, two members are a majority and a quorum. A meeting is defined in Iowa Code section 21.2(2):
2. “Meeting” means a gathering in person or by electronic means, formal or informal, of a majority of the members of a governmental body where there is deliberation or action upon any matter within the scope of the governmental body’s policy-making duties. Meetings shall not include a gathering of members of a governmental body for purely ministerial or social purposes when there is no discussion of policy or no intent to avoid the purposes of this chapter.
By their own admission, the two supervisors discussed county issues. This satisfied the deliberation requirement (Deliberation means considering or debating. Making a decision is not required.) Policy was discussed, so the “ministerial or social” exception would not apply. Supervisors on a three-member Board need to be vigilant about the dangers of two of them meeting, phoning, emailing, or otherwise communicating outside a properly noticed meeting.
There is no evidence that the two supervisors planned to meet at the engineer’s office, and the presence of the two supervisors at said office at the same time was a coincidence. There is no evidence that the two supervisors’ actions were an intentional attempt to avoid the open meeting law’s requirements.
The IPIB accepted the complaint on June 18, 2015.
Iowa Code section 23.9 requires the Iowa Public Information Board (IPIB) to “promptly work with the parties, through employees of the board, to reach an informal, expeditious resolution of the complaint.” Therefore, IPIB staff proposed an informal resolution:
A. All members of the Ringgold County Board of Supervisors (BOS) will review the power point presentation on the Iowa Public Information Board (IPIB) website, “Iowa Sunshine Laws”.
B. All members of the Ringgold County BOS will acquire and review a copy of the Iowa Open Meetings, Open Records Handbook prepared by the Iowa Freedom of Information Council for future use.
C. The Ringgold Board of Supervisors recognize that a meeting occurs when two members discuss county policy, whether in person, by telephone or electronically. Such meetings must meet the requirements of Iowa Code Chapter 21.
D. The Ringgold Board of Supervisors will discuss with the County Attorney the risks associated with communicating outside a public meeting, individually or at a duly noticed public meeting.
The above provisions shall be completed by November 5, 2015, and the Board will provide documentation of compliance by November 9, 2015. Upon successful completion of the remediation plan, the IPIB shall dismiss the complaint as resolved with no additional sanctions.
The two Board members involved, Paul Dykstra and Kraig Pennington, signed the remediation plan on November 2, 2015. A third member, Royce Dredge, was not involved in the incident and therefore did not sign the plan. However, he did complete the terms of the remediation plan.
All three members of the Board fully completed the terms of the plan by October 30, 2015, as verified by the Ringgold County Attorney.
The complainant, Ms. Jeanes, declined to approve the remediation plan. Due to health reasons, a vacation, and the fall harvest, she was unable to respond at times to IPIB requests for agreement term suggestions. On August 28, 2015, she requested that the words “discuss” and “occurs” be replaced with “discussed” and “occurred” in plan term “C”. The Board, through the County Attorney, would not agree to this modification. The County Attorney indicated that the presence of the two supervisors at the same time and same place was not planned, included a limited amount of time, and was not a knowing violation.
IPIB Action
The IPIB has several options upon receipt of a probable cause report. According to Iowa Administrative Rule 497 - 2.2(4):
“Board action. Upon receipt and review of the staff investigative report and any recommendations, the board may:
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”.
Probable cause is not specifically defined in Chapters 21, 22 and 23. A different section of the Iowa Code defines probable cause as “reasonable suspicion”; it is defined in legal dictionaries as the “apparent facts discovered through logical inquiry that would lead a reasonably intelligent and prudent person to believe that an accused person has committed a crime, thereby warranting his or her prosecution, or that a cause of action has accrued, justifying a civil lawsuit.”
Discussion
There is no doubt that probable cause exists to believe a violation has occurred. The Board did not deny that the incident occurred. The Board also agreed that a meeting occurs under Chapter 21 when a majority of the Board discusses county policy. The Board has successfully completed the terms of the remediation plan. Nothing further would be gained by initiating a contested case proceeding.
In addition, this factual situation was incorporated by the IPIB Deputy Director into the August 2015 monthly column, distributed across the State of Iowa, and published to the IPIB website. The position of the IPIB concerning the definition of a meeting and a warning concerning the risks facing a three-member governmental body has now been widely circulated.
Recommendation
Based upon investigation of the complaint, I recommend that the IPIB determine probable cause exists to believe that the Ringgold County Board of Supervisors violated Iowa Code Chapter 21 when two members of the three-member Board met and discussed county policy without proper notice, agenda, or minutes.
I further recommend that this complaint be dismissed in its entirety with the following finding:
Probable cause exists for the complaint, but is dismissed as the violation has been appropriately remediated.
Respectfully submitted this 9th day of November, 2015.
Margaret E. Johnson, JD
Deputy Director
Cc: IPIB
Vickie Jeanes
Ringgold County Board of Supervisors
Ringgold County Attorney