Volunteer members of regional planning commission board not subject to penalties for open meetings violations

by Gary Taylor

City of Postville et al., v. Upper Explorerland Regional Planning Commission et al.
(Iowa Supreme Court, June 7, 2013)

The Upper Explorerland Regional Planning Commission is a regional planning commission serving five northeast Iowa counties that is organized under Iowa Code chapters 28E and 28H. There are twenty-four commission members.  None receive compensation for their service on the commission, except that three members have salaries for full-time government positions that require them to serve on the commission.  Others receive reimbursement for mileage.

The commission was examining the feasibility and cost of either expanding the Postville office of the commission, or locating alternative office space in any of the five counties.  Contract negotiations for properties in the five-county area took place, and on September 23, the commission held a meeting to approve a contract to purchase property in either Decorah or Postville. Sixteen members attended. After lengthy discussion, the motion was made to approve a proposed purchase contract for the Decorah property. The attending members unanimously agreed with a proposal to conduct the vote by secret ballot. The members cast their ballots and then publicly counted the votes. The motion to purchase the Decorah property was approved 10-6.

Immediately after the vote concerns were raised about the propriety of the secret ballot vote under the Iowa Open Meetings Act (OMA). After the meeting one of the commission members told another member before leaving that there was a problem with the ballot vote. The same night, this concern was relayed to the commission’s executive director. The following Monday after the vote, all commission members received an email indicating concern about the legality of the secret ballot vote. Several members proposed that if the voting members revealed their vote and recorded their decision in the minutes, then the commission’s action would be legal. The commission also contacted the State Ombudsman’s Office, which recommended sending new written ballots to each voting member. The commission heeded this recommendation and instructed each voting member to reaffirm their vote and include their name on the ballot. Of the sixteen original voting members, one abstained, another returned the ballot unmarked, and a third did not return the ballot at all. Six members changed their votes in the subsequent reaffirmation. Despite this, the outcome remained the same with ten “yes” votes in favor of purchasing the property in Decorah. The commission distributed revised minutes of the meeting, which listed the name and vote of each member who was present for the September 23 meeting.

The City of Postville and a resident taxpayer of Allamakee County filed suit claiming fifty-one violations of the OMA for actions taken associated with the office relocation decision and several others.  Among the remedies requested by the City was an order that commission members be held personally liable for the OMA violations.  The district court found for the Commission on all counts.  The City appealed to the Court of Appeals.

The Court of Appeals boiled the claims down to three primary issues:   (1) whether a volunteer of a governmental body is immune under Iowa Code section 28H.4 for damages due to OMA violations; (2) whether the governmental body’s meeting notices met OMA requirements; and (3) whether a certain publication is a newspaper of general circulation, as required by section 28E.6(3)(a).

Volunteer immunity under OMA.  The commission and its members admitted to violating OMA with respect to the secret ballot and subsequently when the commission reaffirmed the vote by mail; however, they argued they are immune from liability under the state immunity provision in Iowa Code section 28H.4(2), which provides that “a director, officer, employee, member, trustee, or volunteer is not personally liable for a claim based upon an act or omission of the person performed in the discharge of the person’s duties, except for acts or omissions which involve intentional misconduct or knowing violation of the law, or for a transaction for which the person derives an improper personal benefit.”

The Court of Appeals noted that “intentional misconduct” requires more than a reckless disregard for the law, and a “knowing violation” requires a deliberate or conscious act. The court found no evidence that the actions of the members amounted to intentional misconduct or a knowing violation. Instead, the record shows the members did not identify an issue with the secret ballot vote until after its completion. Upon identifying the problem, the members self-policed their actions and took corrective measures.

On appeal the city argued for the first time that the immunity provided in 28H.4 does not apply to violations of OMA; however, because the court does not decide issues not presented in district court the issue was “left for another day.”

Posting of meeting notices.  The City alleged the commission conducted improper closed sessions lacking reasonable meeting notice from October 28, 1999, through August 19, 2010, basing its claim on the fact the commission posted its meeting notice on a bulletin board located in the hallway of the commission’s Postville office. The bulletin board is approximately thirty to forty feet from the main public access door, and is not visible from the entrance door to the office. The office is open to the public Monday through Friday from 8:00 a.m. until 4:30 p.m.

OMA requires notices of meetings to be provided “in a manner reasonably calculated to apprise the public” of the date, time, location and subject of the meetings.  One manner of notice specified in OMA is to “post the notice on a bulletin board or other prominent place which is easily accessible to the public and clearly designated for that purpose ….”  The court remanded the case to the district court for further inquiry into whether the meeting notices met this standard.  It noted that the commission secretary posted the notice on the board at least five days in advance of each meeting, but the public generally does not utilize the hallway where the bulletin board is located unless the individual has an appointment or uses the restroom. The question remained how often the public uses the hallway or if the board and its contents are visible from the reception area.

Newspaper of general circulation. Iowa Code 28E.6 requires councils of governments to annually publish the “names and gross salaries of persons regularly employed by the entity” in “one newspaper of general circulation within the geographic area served by the joint board of the entity.” The City contended the Olewein Daily Register was not a newspaper of general circulation because there are no individual subscribers to the paper in three of the five counties, and no business subscribers in four of the five counties.

The court noted that the statute only requires publication in one newspaper – the legislature expressly stated it is not necessary to publish in multiple newspapers within a single geographic area. Moreover, it is not necessary to publish using a newspaper outside the geographic region. The undisputed record established there is no single newspaper available that has subscriptions in all five counties within the commission’s service region. The commission specifically selected the Register because it is the only daily newspaper serving the five-county area. A “newspaper of general circulation” is a publication that “contains news and information of interest to the general public, rather than to a particular segment, and that is available to the public within a certain geographic area….[It is] not determined by the number of its subscribers, but by its diversity….More compelling is the fact the Register serves the same area as the commission.”  The court sided with the commission on this claim.

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