Appeal from the Iowa District Court for Allamakee County, Thomas A. Bitter, Judge.
A city and a citizen appeal from the district court's grant of summary judgment involving Iowa's Open Meetings Act.
Anne E.H. Loomis of Allen, Vernon & Hoskins, PLC, Marion, and Charles R. Kelly Jr. of Charles Kelly Law Office, PC, Postville, for appellants.
Thomas D. Wolle of Simmons Perrine Moyer Bergman PLC, Cedar Rapids, and Carlton G. Salmons of Gaudineer, Comito & George, LLP, West Des Moines, for appellees.
This matter involves a claim against a local governmental body and its members for violating the Iowa Open Meetings Act (IOMA). The three issues involved in this appeal are (1) whether a volunteer of a governmental body is immune under Iowa Code section 28H.4 (2011) for damages due to alleged IOMA violations; (2) whether the governmental body's meeting notices met the requirements of section 21.4(1); and (3) whether a certain publication is a newspaper of general circulation, as required by section 28E.6(3)(a). The local governmental body and its members moved for summary judgment. The district court found no genuine issue of material fact existed as to each issue. Thus, the district court found the volunteers had immunity, the meeting notices satisfied the requirements of section 21.4(1), and the newspaper used for publication is a newspaper of general circulation pursuant to section 28E.6(3)(a). Accordingly, the district court dismissed the action. On appeal, we affirm the district court's grant of summary judgment on the immunity issue as to damages a court can assess against the individual members. We reverse the district court's grant of summary judgment on the reasonableness of the notice because a genuine issue of material fact exists regarding whether the notice given was reasonable. We also affirm the district court's grant of summary judgment because no genuine issue of material fact exists as to whether the publication is a newspaper of general circulation, as defined by section 28E.6(3)(a). Finally, we find any established violation of IOMA may require the court to void any action taken under IOMA if the requirements of section 21.6(3)(c) are proved.
I. Background Facts and Proceedings.
The Upper Explorerland Regional Planning Commission is a body exercising public and essential government functions. Iowa Code §§ 28H.1, .3. The Commission is organized under Iowa Code chapters 28E and 28H. The Commission serves five counties: Allamakee, Clayton, Fayette, Howard, and Winneshiek. Id. § 28H.1. Prior to the acts at issue, the Commission had only one office located in Postville.
There are twenty-four commission members. None receive compensation from the Commission or the county that appointed them for attending the Commission's meetings. However, three commission members have salaries for full-time government positions, which require them to serve on the Commission. Several other members receive reimbursement for mileage.
In March 2009, the Commission appointed a team to study the feasibility and cost of either expanding the Postville office or locating alternative office space in any of the five counties served by the Commission. The Commission met on August 19, 2010, at the Postville office to discuss the expansion plan. The Commission unanimously authorized individuals to engage in contract negotiations for the purchase of prospective properties, including one in Decorah. The Commission retained authority to approve the proposed contract.
On September 23, the Commission held another meeting. Sixteen members attended. The meeting's agenda included approving a contract to purchase property in either Decorah or Postville. After lengthy discussion, the proper motion was made to approve a proposed purchase contract for the Decorah property. None of the attending members contested a secret ballot vote and unanimously agreed to such a vote. The members cast their ballots and then publicly counted the votes. The motion to purchase the Decorah property carried with ten votes in favor and six opposed.
It was not until after the September 23 vote that there was concern about the propriety under IOMA of the secret ballot vote. The Commission does not dispute that immediately 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. After exchanging emails, 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 legally appropriate.
For guidance in resolving the issue, the Commission 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.
Other relevant facts are discussed below, as needed.
The City of Postville and Jason Meyer, a resident and taxpayer of Allamakee County, filed their original petition on October 18, 2010. After various amendments, the amended petition contains fifty-one counts against the Commission, alleging various IOMA violations.
Counts one and two assert the meeting on September 23, 2010, when the vote by secret ballot occurred, and the Commission's subsequent reaffirmation of the vote by mail constituted improper closed sessions lacking reasonable meeting notices. In counts three through thirty-nine, the City alleges that the Commission conducted improper closed sessions lacking reasonable notice for meetings from October 28, 1999, through August 19, 2010. The City claims the notices posted by the Commission in the hallway of its offices did not constitute reasonable notice. Counts forty through fifty detail charges that for the years 1999 through 2009, the Commission failed to comply with the annual publication requirements in section 28E.6(3). Finally, count fifty-one alleges a particular commission meeting was not reasonably accessible to the public, as required by law, due to inadequate seating accommodations.
In its answer, the Commission and its members admitted their actions, as alleged in counts one and two, violated IOMA when the vote by secret ballot occurred and the Commission reaffirmed the vote by mail, but denied the rest of the allegations.
In its request for relief, the City sought from each individual member of the Commission $500 per IOMA violation. The City also requested the court order either the individual members or the Commission pay its attorney fees. Other relief sought included voiding the action taken at the closed session, enjoining the commission members from further violating the law, removing the eleven named commission members from their positions, and nullifying and voiding all actions taken by the Commission at any session violating IOMA. Thus, the relief sought was against both the individual members of the Commission and the governmental body as a whole.
On April 18, the Commission moved to file an amended answer to the City's amended petition. In the amended answer, the Commission admitted that by taking a vote in writing with anonymity, the Commission violated section 21.3 because each ...