Opinion
No. 5-453 / 04-1674
Filed November 9, 2005
Appeal from the Iowa District Court for Montgomery County, Charles L. Smith, Judge.
A defendant member of a board of supervisors appeals from the district court ruling that found he violated Iowa Code chapter 21 (2003), the Open Meetings Act. AFFIRMED.
Richard Davidson, Clarinda, for appellant.
Behnaz Soulati and Sharon Malheiro of Davis, Brown, Koehn, Shors Roberts, P.C., Des Moines, for appellee Hawkeye Communications, Inc., and Joseph Quinn of Nyemaster, Goode, West, Hansell O'Brien, P.C., Des Moines, for appellees Landmark Community Newspapers and XPublishing, LLC.
Heard by Huitink, P.J., Zimmer, J., and Brown, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
Dale Carlson, a member of the Montgomery County Board of Supervisors, appeals from a district court ruling that found he violated Iowa Code chapter 21 (2003), the Open Meetings Act. We affirm the district court.
I. Background Facts and Proceedings.
On Friday, February 21, 2003, the Montgomery County Board of Supervisors (Board) held an open meeting from approximately 6:00 to 8:00 p.m. to discuss the county's budget. Following the meeting the Board posted a "Special Agenda" which stated,
The Montgomery County Board of Supervisors will meet in special quorum on Monday, February 24, 2003 at 9:00 A.M. in the Board of Supervisors Chambers in the Courthouse to continue the budget process. If the board is not finished by 12:00 P.M. for lunch they will recess and reconvene at 1:00 P.M. in the board chambers.
The "Special Agenda" was sent to local media outlets, including Hawkeye Communications, Inc., d/b/a KCSI Radio (KCSI), Landmark Community Newspapers, d/b/a Red Oak Express (the Express), and XPublishing, LLC, d/b/a Villisca Review (the Review).
On Saturday, February 22, 2003, a "Revised Agenda" was posted and sent to local media outlets, including KCSI, the Express, and the Review. The "Revised Agenda" was posted and sent by Board member Margaret Stoldorf after consulting by telephone with both Board chairman Glen Benskin and Board member Leland Carmichael. Stoldorf did not consult with Board member Dale Carlson, but understood that Carmichael would telephone Carlson and inform him of the change in time and "Revised Agenda."
The fifth Board member, Harry Vannausdle, had recently suffered a stroke and was not actively participating in Board functions.
The "Revised Agenda" stated, in relevant part:
The Board of Supervisors will NOT meet at 9:00 a.m. on Monday, February 24, 2003, as per the prior agenda.
The Montgomery County Board of Supervisors will meet in Special Session on Monday, February 24, 2003, at 2:00 p.m. in the Supervisor's Chambers in the Courthouse.
The "Revised Agenda" also contained a detailed list of the issues to be considered during the 2:00 p.m. meeting.
When Jerry Dietz of KCSI received the "Revised Agenda," he contacted Benskin, "to make sure that it was not an action by a single board member and Glen Benskin confirmed the agenda for the change of the meeting time." KCSI then announced that the Board's meeting would take place at 2:00 p.m.
On February 24 a quorum of Board members — Benskin, Carmichael, and Carlson — met at 9:00 a.m. The only other individuals present were the county auditor, deputy auditor, and county treasurer. The members held a brief discussion regarding the budget. Several minutes after the meeting commenced, Stoldorf joined the meeting by phone. She informed those present that she had consulted with David Vestal, general counsel to the Iowa State Association of Counties, and Mills County Attorney Marcie Prier, and that both had stated "if we meet this morning it is an open meetings violation." She stated that Vestal had informed her the "Revised Agenda" superseded the "Special Agenda," and advised that if the Board had opened the 9:00 a.m. meeting, they should immediately adjourn.
The Montgomery County Attorney and his assistant were not available.
The members discussed the legality of the 9:00 a.m. and 2:00 p.m. meeting times. After Stoldorf terminated the phone conversation, the remaining members again discussed the budget. Benskin, Carmichael, and Carlson decided to adjourn until 1:00 p.m. and to finalize the budget at 2:00 p.m.
The Board reconvened at 1:00 p.m. Benskin, Carmichael, Carlson, and Stoldorf were all present. The county treasurer was the only other individual in attendance. On the advice of Marcie Prier, Stoldorf once again expressed concerns about discussing the budget under the "Special Agenda" and moved to adjourn until 2:00 p.m. The motion failed for lack of a second. The majority of present members appeared to agree that it would be appropriate to meet and discuss the budget so long as the Board took no action until 2:00 p.m. The Board then discussed the budget in detail.
The Board adjourned shortly before 2:00 p.m. They opened the 2:00 p.m. meeting shortly thereafter. Several members of the public, as well as Deitz from KCSI, were present for the 2:00 p.m. meeting. During that meeting the Board briefly discussed and took action on the budget.
In August 2003 KCSI, the Express, and the Review filed a petition against the Board, and Benskin, Carmichael, and Carlson individually, alleging that the 9:00 a.m. and 1:00 p.m. meetings on February 24 were in violation of Iowa Code chapter 21, the Open Meetings Act. Prior to trial the plaintiffs, the Board, and Benskin entered into a consent decree that enjoined Benskin and the Board from violating chapter 21 for a period of a year, and required Benskin to pay $300 towards the plaintiffs' attorney fees.
The matter proceeded to trial against Carlson and Carmichael. Following trial the district court found Carlson and Carmichael had violated chapter 21. The court concluded the Board's 9:00 a.m. and 1:00 p.m. meetings were in violation of the notice provisions of section 21.4. The court rejected the defendants' contentions that no violation of chapter 21 had occurred because no action was taken on the budget until 2:00 p.m., and because neither man specifically intended to violate the Open Meetings Act. The court noted a "meeting" as defined by chapter 21 included deliberation as well as action and concluded lack of intent "is only relevant if there is a question about whether or not a meeting occurred, or if there was an omission from an agenda by inadvertence." The court ordered Carlson and Carmichael to each pay $300 in damages and to jointly and severally pay $22,645.93 in attorney fees — $13,163.89 to KCSI and $9,482.04 to the Express.
Carlson filed a motion for judgment notwithstanding the verdict, which was denied by the court. Carlson now appeals.
II. Scope and Standard of Review.
This matter was brought and tried as an ordinary action at law. As such, our review is for the correction of errors at law. Telegraph Herald, Inc. v. City of Dubuque, 297 N.W.2d 529, 533 (Iowa 1980). The district court's findings of fact are binding upon this court if they are supported by substantial evidence. Iowa R. App. P. 6.14(6)( a).
III. Discussion.
In this action to enforce the provisions of chapter 21, the plaintiffs bore the initial burden of demonstrating that the Board was subject to the requirements of chapter 21 and that it held a closed session. Iowa Code § 21.6(2). Upon such a showing, the burden of going forward shifted to the Board and its members to demonstrate compliance with chapter 21. Id. Once the court found by a preponderance of the evidence that the Board violated any provision of chapter 21 it was required to assess damages against each member who participated in the violation, unless that member could prove one of three defenses. Id. § 21.6(3)(a). The court was also required to assess costs and fees to members who were assessed damages. Id. § 21.6(3)(b).
Carlson asserts the court erred in concluding a violation of chapter 21 occurred in this case and in assessing him damages and attorney fees as a member who participated in the violation. He forwards several arguments, both supported and unsupported, in defense of his contentions. The primary thrust of those arguments appears to be threefold: (1) the 9:00 a.m. and 1:00 p.m. meetings were the only properly noticed meetings on February 24, and thus those meetings were held in compliance with chapter 21; (2) even if the Board failed to comply with the notice requirements of chapter 21 regarding the 9:00 a.m. and 1:00 p.m. meetings, the plaintiffs failed to establish the 9:00 a.m. and 1:00 p.m. meetings were closed sessions; and (3) Carlson had good reason to believe and in good faith believed he was not acting in violation of chapter 21 by discussing the budget at the 9:00 a.m. and 1:00 p.m. meetings, which is a defense against the assessment of damages. Carlson also asserts the district court abused its discretion by assessing clearly excessive attorney fees.
Addressing Carlson's contentions requires us to apply certain provisions in Iowa Code chapter 21, the Open Meetings Act, and chapter 331, County Home Rule Implementation. To the extent we must interpret some of those provisions, our goal is to ascertain the legislature's intent. Tow v. Truck Country of Iowa, Inc., 695 N.W.2d 36, 39 (Iowa 2005). We are primarily guided by the statutory language, but also consider the "subject matter, the object sought to be accomplished, the purpose to be served, underlying policies, remedies provided, and the consequences of the various interpretations." Cox v. State, 686 N.W.2d 209, 213 (Iowa 2004) (citation omitted). "We read the statute as a whole and give it its plain and obvious meaning, a sensible and logical construction, which does not create an impractical or absurd result." In re Detention of Swanson, 668 N.W.2d 570, 574-75 (Iowa 2003) (citations omitted). Having considered Carlson's arguments, we find little to disagree with in the district court's ruling.
A. Notice Violation.
The court correctly concluded that the 9:00 a.m. and 1:00 p.m. meetings held pursuant to the "Special Agenda" were "meetings" within the context chapter 21, as both were "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." Iowa Code § 21.2(2). Accordingly, the Board was required to give public notice of the time, date, and place of the meeting, and the Board's tentative agenda for the meeting, in accord with the provisions of section 21.4.
We agree with Carlson that the Board provided public notice of the "Special Agenda" in accord with section 21.4. As the district court concluded, however, the Board subsequently provided a public notice and agenda, the "Revised Agenda," which cancelled the 9:00 a.m. and 1:00 p.m. meetings.
Carlson attacks the validity of the "Revised Agenda." He contends the "Revised Agenda" was the product of an illegal meeting or invalid process. He asserts, in effect, that the "Revised Agenda" was invalid because it was not issued by a majority of the Board members, upon a formal motion, during a previously noticed open meeting. We have reviewed applicable statutory and case law and find Carlson's contention to be without merit.
Iowa Code section 331.213(1) requires that Board meetings be held "as scheduled by the board," and in compliance with chapter 21. However, the actions of Stoldorf, Benskin, and Carmichael on Saturday, February 22, were not a "meeting" for the purposes of chapter 21, as they did not involve deliberation of or action upon policy. See Iowa Code § 21.2(2); Telegraph Herald, 297 N.W.2d at 533 (noting the requirements of chapter 21 do not apply when a majority of members meets "for a purely ministerial function . . . so long as there is no discussion of policy and no intent to avoid the purposes of the act"). Moreover, Stoldorf, Benskin, and Carmichael constitute a majority of the Board, and Carlson cites no authority to support his contention that a majority of the Board's members is without authority to cancel or schedule a meeting unless they do so in open session.
Carlson does point to section 331.302(1), which provides that the Board "shall exercise a power or perform a duty only by the passage of a motion, a resolution, an amendment, or an ordinance." However, reading this section in the context of the surrounding code sections, calling a meeting and setting a tentative agenda does not appear to be a "power" or "duty" within the context of section 331.302(1).
"Power" refers to the home rule power granted to the county and vested in the Board, such as the right to levy taxes and enter into contracts. See Iowa Code § 331.301. "Duty" refers to obligations such as acting upon applications for licenses and permits and adopting rules, id. § 331.303, and filling vacancies and making appointments of county officers, id. § 331.322.
Moreover, interpreting chapters 21 and 331 as Carlson suggests would lead to impractical if not absurd results. It would in effect preclude the Board from scheduling and holding a meeting on an emergency basis, or even rescheduling a meeting in the event a quorum of Board members fails to attend a properly noticed meeting. This surely cannot have been the legislature's intent.
In assessing compliance with section 21.4,
[t]he issue to be resolved is . . . whether the notice sufficiently apprised the public and gave full opportunity for public knowledge and participation. In determining whether the public was sufficiently apprised, we may consider the public's knowledge of an issue and actual participation in events in light of the history and background of that issue.
KCOB/KLVN, Inc. v. Jasper County Bd. of Supervisors, 473 N.W.2d 171, 173 (Iowa 1991). Here, because of the "Revised Agenda" the public was apprised that the Board would be meeting, not at 9:00 a.m. or 1:00 p.m., but at 2:00 p.m. Notably, several members of the public appeared to observe and participate in the meeting, but did not do so until 2:00 p.m. We agree with the district court that the "Revised Agenda" cancelled the 9:00 a.m. and 1:00 p.m. meetings scheduled under the "Special Agenda," and thus that the public did not have "reasonable notice" of the 9:00 a.m. and 1:00 p.m. meetings as required by section 21.4.
B. Closed Sessions.
Carlson contends that a failure of notice does not render the 9:00 a.m. and 1:00 p.m. meetings "closed sessions." He contends the sessions were in fact open because members of the public were in attendance and because no member of the public was denied access. The attending "public" Carlson refers to consisted of three county employees: the county auditor, who served as the Board's clerk, see Iowa Code § 331.211(2); her deputy; and the county treasurer.
Carlson relies on a 1979 opinion of the attorney general in support of his position. The opinion, which interpreted chapter 28A, the forerunner of chapter 21, concluded:
We recognize that the failure to provide adequate notice may effectively prevent interested members of the public from attending a meeting of a governmental body. . . . Nevertheless, we believe that a failure to provide proper notice should be considered conduct separate and distinct from barring public access at the time a meeting is actually held. . . . [I]t is our opinion that a failure to comply with the public notice requirements of § 28A.4 does not render a meeting, during which all members of the public are permitted access, a "closed session."
1979 Iowa Op. Atty. Gen. 430.
While we are mindful of the logic behind this opinion, the purpose of chapter 21 is "to assure, through a requirement of open meetings of governmental bodies, that the basis and rationale of governmental decisions, as well as those decisions themselves, are easily accessible to the people." Iowa Code § 21.1. That is why "[a]mbiguity in the construction or application of this chapter should be resolved in favor of openness." Id.
An open session is defined as "a meeting to which all members of the public have access." Id. § 21.2(3) (emphasis added). Reasonable notice under section 21.4 is what assures that access. When the general public has not received notice reasonably apprised to inform it that a meeting would still occur at 9:00 a.m. or 1:00 p.m. on February 24, and instead has received notice reasonably apprised to inform it that no meeting will occur until 2:00 p.m., it has been effectively denied access to the earlier meetings. The attendance of county employees with special knowledge of the meeting time does not change this fact. See also Barrett v. Lode, 603 N.W.2d 766, 769-70 (Iowa 1999) (indicating that a notice violation under § 21.4 can serve as basis for sanctions under § 21.6(3)(a)).
The record substantially supports the district court's conclusion that the Board participated in closed sessions at 9:00 a.m. and 1:00 p.m., that a violation of chapter 21 occurred, and that Carlson, who engaged in policy deliberations during the closed sessions, participated in the violation. The court was therefore required to assess damages against Carlson unless Carlson could demonstrate one of the three defenses listed in section 21.6(3)(a).
C. Defense to Assessment of Damages and Fees.
Carlson asserts he demonstrated the second of the three defenses in section 21.6(3)(a), in that he "[h]ad good reason to believe and in good faith believed facts which, if true, would have indicated compliance with all the requirements" of chapter 21. See Iowa Code § 21.6(3)(a)(2). However, even a cursory review of the record reveals evidence which substantially supports the district court's determination that Carlson did not establish a defense under section 21.6(3)(a)(2).
Although the district court did not expressly rule upon Carlson's claimed defense, the court's rejection of the defense is implicit in its assessment of damages and attorney fees. See Meier v. Senecaut, 641 N.W.2d 532, 539 (Iowa 2002) ("We assume the district court rejected each defense to a claim on its merits, even though the district court did not address each defense in its ruling.").
Even if Carlson arrived for the 9:00 a.m. meeting unaware of the "Revised Agenda," it is undisputed that he was aware of the "Revised Agenda" by the time the meeting was opened, and that shortly thereafter Stoldorf advised Carlson, and the rest of the Board members, of Vestal and Preir's legal opinions that the 9:00 a.m. meeting was in violation of chapter 21. Rather than accepting Stoldorf at her word, or even waiting until the Board could contact Vestal or Prier directly, Carlson proceeded to deliberate policy. Moreover, he did so only days after attending a training session by Vestal that apprised the Board of chapter 21's requirements and the consequences of violating those requirements. The record more than adequately supports the conclusion that, even if Carlson honestly believed he was acting in compliance with chapter 21, he did not have good reason to hold such a belief.
Section 21.6(4) authorizes "[a] governmental body which is in doubt about the legality of closing a particular meeting . . . to . . . seek a formal opinion of . . . an attorney for the governmental body."
D. Damages and Attorney Fees.
Because Carlson did not demonstrate a defense, the district court was required to assess damages and reasonable attorney fees against him. Carlson asserts the amount of attorney fees assessed is excessive. The amount of fees awarded is a matter within the district court's discretion. See Schumacher v. Lisbon Sch. Bd., 582 N.W.2d 183, 186 (Iowa 1998).
The district court provided the following rationale for its fee award:
While the amount of attorney fees is large, it appears to be reasonable to the Court, given the extent of litigation. The violation is obvious to the Court. Both the Board as a whole and Supervisor Benskin recognized the violation early in the litigation and took steps to admit and rectify their actions by agreeing to the remedies set out in the consent decree. . . . The extent of the litigation was made necessary, in part, by the inability of the two remaining defendants to recognize that they had met without proper notice. Defendants Carmichael and Carlson both pursued their defense in this litigation vigorously. None of the actions taken by Plaintiffs' attorneys were unnecessary and were an essential part of the preparation for trial. The hourly rate is appropriate given the experience of the attorneys in question, the subject matter and the extent of the litigation.
We find no abuse of discretion by the district court.
IV. Conclusion.
The district court did not err in concluding the plaintiffs had established a violation of chapter 21 and that Carlson had participated in the violation. The court was statutorily required to assess and did assess damages and reasonable attorney fees against Carlson. The district court's order is affirmed.
The appellees have requested appellate attorney fees. As there is no statutory authority under chapter 21 to assess appellate attorney fees, the request is denied. See id. at 187.