December 21, 2016
JAMES W. OLINGER and LARRY C. MEYER, Plaintiffs-Appellants/Cross-Appellees,
ROBERT SMITH, WALTER UTMAN, GAYLORD PITT, HARRISON COUNTY, IOWA, and UTMAN DRAINAGE DISTRICT, Defendants-Appellees/Cross-Appellants.
from the Iowa District Court for Harrison County, James M.
plaintiffs appeal various aspects of the district court's
order and judgment on their claim the defendants violated the
Iowa Open Meetings Act. The defendants cross-appeal. AFFIRMED
IN PART, REVERSED IN PART, AND REMANDED.
Jessica A. Zupp of Zupp & Zupp Law Firm, P.C., Denison,
and Allen K. Nepper of Nepper Law Firm, Denison, for
L. Monthei of Scheldrup Blades, Cedar Rapids, for
by Vogel, P.J., and Tabor and Mullins, JJ.
Olinger and Larry Meyer appeal various aspects of the
district court's order and judgment on their claim the
trustees of the Utman Drainage District violated the Iowa
Open Meetings Act (IOMA). The drainage district and its
trustees cross-appeal. We affirm in part, reverse in part,
Background Facts and Proceedings
order and judgment, the district court summarized the
following relevant facts:
[Olinger and Meyer] are residents of Harrison County, Iowa. .
. . Robert Smith, Walter Utman, and Gaylord Pitt are elected
members of the Harrison County Board of Supervisors who act
as the trustees of the Utman Drainage District.
Elizabeth Lenz has been the drainage clerk for the Utman
Drainage District for more than [twenty] years. Ms. Lenz
acted as a liaison between the trustees and legal counsel.
She would gather information from legal counsel and pass it
on to the trustees as issues arose. . . .
During the fall of 2013, a levy became a hotly contested
issue in Harrison County, Iowa. [Olinger and Meyer] in a
different cause of action filed for a writ of mandamus. . . .
On or about November 4, 2013, counsel for [the] plaintiffs
sent a threatening letter to the [trustees]. This letter
threatened certain legal ramifications if certain actions
were not taken prior to November 15, 2013. . . .
The Harrison County board of supervisors meets weekly . . . .
At their weekly . . . meeting on November 7, 2013, the matter
of the drainage district litigation came up. Based upon
advice given by counsel to Ms. Lenz, it was determined any
discussion of the litigation should not be in an open
meeting. . . . [T]he trustees entered a closed session to
discuss litigation for approximately [three] minutes. The
subject discussed was the November 4, 2013 letter threatening
legal action. . . . No specific action was discussed. As it
pertains to the payment of court costs requested in the
previous litigation, the transcript of the November 4 closed
meeting session indicates that the court had not yet
assess[ed] the cost and as a result, the trustees all agreed
to wait on any action.
Similarly, on November 14, 2013, the trustees went into
closed session to discuss threatened litigation for
approximately [six] minutes. No specific action was
discussed. Again, this was pursuant to legal advice given by
counsel to the trustees through Ms. Lenz.
November 25, 2013, Olinger and Smith filed a petition
alleging both closed sessions were held in violation of IOMA,
as provided in Iowa Code chapter 21 (2013). Olinger v.
Smith, No. 14-0751, 2015 WL 1331269, at *1 (Iowa Ct.
App. Mar. 25, 2015). Olinger and Smith then "filed a
motion seeking an in camera inspection of the recording of
the closed sessions." Id.; see also
Iowa Code § 21.5(4) (providing for in camera
inspection). After the inspection, the district court
determined Olinger and Smith were entitled to access the
recording of the November 7 meeting but the November 14
recording should not be released. Olinger, 2015 WL
1331269, at *1. Having found the recording from the November
7 meeting must be disclosed, the district court invoked Iowa
Code section 21.6(3)(a) and ordered each trustee to pay a
$100 fine. Id. The court later suspended the fine in
the event each trustee purchased an "Open Meetings, Open
Records" handbook. Id. Olinger and Smith filed
a motion pursuant to Iowa Rule of Civil Procedure 1.904(2),
asserting the district court's order should have been
limited to the in camera motion; the district court summarily
denied the motion. Olinger and Smith appealed.
court reversed on appeal, finding the district court erred by
prematurely assessing damages without expressly determining
whether the trustees knowingly violated IOMA, by failing to
allow the trustees an opportunity to present defenses, by
suspending the fine without statutory authority, and by
failing to address whether Olinger and Smith were entitled to
attorney fees. Id. at *3. Based on the trustees'
admission counsel for the drainage district was not present
at either meeting, this court further clarified "a
closed session under Iowa Code section 21.5(1)(c) requires
the presence of counsel at the meeting in order to satisfy
the requirement 'to discuss strategy with
counsel.'" Id. at *7 (footnote omitted). On
appeal, it is undisputed by the parties that counsel was not
present during the November 7 and 14 gatherings.
remand, trial was held. The district court's order did
not explicitly state a violation of the act occurred.
Instead, the district court found: (1) "a closed meeting
occurred, " (2) the trustees entered into the closed
meetings on advice of counsel, (3) "the trustees
intended to fully comply with all aspects of the open meeting
law, " (4) the "trustees substantially complied
with the open meetings statute on both November 7 and 14,
" and (5) "[w]hether or not a violation occurred,
the [trustees] ha[ve] met all burdens in establishing their
actions were made in good faith in attempting to comply with
the open meetings statutes." Having made these findings,
the district court imposed a fine upon the drainage
district-concluding the trustees were not individually liable
based on their "good faith" defense-and taxed the
drainage district with costs including plaintiffs'
attorney fees, as reduced by the district court.
Olinger and Smith's rule 1.904(2) motion to amend or
enlarge, the district court entered an amended ruling
eliminating the fine imposed upon the drainage district.
Olinger and Smith appeal; the drainage district and its
Standards and Scope of Review
to enforce the open meetings law are ordinary, not equitable,
actions." Hutchison v. Shull, 878 N.W.2d 221,
229 (Iowa 2016). "In such actions, we accord a trial
court's factual findings the same degree of deference we
accord a jury's special verdict." Id.
(citing Iowa R. App. P. 6.907). "Thus, factual findings
by the trial court are binding if substantial evidence
supports them." Id. "Substantial evidence
supports a factual finding when the finding 'may be
reasonably inferred from the evidence presented.'"
Id. at 229-30 (quoting Vaughan v. Must,
Inc., 542 N.W.2d 533, 538 (Iowa 1996)). Our review is
for correction of errors at law. See Tel. Herald, Inc. v.
City of Dubuque, 297 N.W.2d 529, 533 (Iowa 1980).
review the award of attorney fees for an abuse of discretion.
See Schumacher v. Lisbon Sch. Bd., 582 N.W.2d 183,
186 (Iowa 1998).
Code section 21.1 "seeks 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." In furtherance of this purpose,
"[a]mbiguity in the construction or application of
[IOMA] should be resolved in favor of openness." Iowa
Code § 21.1.
initial burden rests with the party seeking judicial
enforcement of IOMA to "demonstrate to the court that
the body in question is subject to the requirements of [IOMA]
and has held a closed session." Id. §
21.6(2). Once the claimant has done so, "the burden of
going forward shall be on the body and its members to
demonstrate compliance with the requirements of [IOMA]."
is no dispute the drainage district and its trustees are
subject to the requirements of IOMA. The Iowa Code provides
that "[m]eetings of governmental bodies, " such as
the drainage district, "shall be held in open session
unless closed sessions are expressly permitted by law."
Id. § 21.3. An "[o]pen session" is
defined as "a meeting to which all members of the public
have access." Id. § 21.2(3). The code, in
turn, defines "[m]eeting" to mean
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.
Id. § 21.2(2).
closed session may lawfully be held under certain enumerated
exceptions. See id. § 21.5. On the initial
appeal, the exception forwarded by the drainage district was
section 21.5(1)(c), which provides a closed session can be
held "[t]o discuss strategy with counsel in matters that
are presently in litigation or where litigation is imminent
where its disclosure would be likely to prejudice or
disadvantage the position of the governmental body in that
litigation." However, the drainage district conceded no
attorney was present at these meetings, a prerequisite this
court determined was needed for section 21.5(1)(c) to apply.
Olinger, 2015 WL 1331269, at *3.
is no dispute the November 7 and 14 gatherings were
"closed" to the public. Instead, the drainage
district and its trustees argue the gatherings- even though
closed-did not constitute "meetings" under section
21.2(2). They further argue they "substantially
complied" with IOMA's requirements and thus no
violation occurred. Finally, the trustees argue, even if a
violation did occur, they are not subject to damages based
upon the defenses found in section 21.6, namely, that they
"[h]ad good reason to believe and in good faith believed
facts which, if true, would have indicated compliance with
all the requirements of [IOMA]." Iowa Code §
appeal, the drainage district and its trustees first argue
there was no meeting held within the statutory meaning of
Iowa Code section 21.2. As an initial matter, we note neither
the drainage district nor its trustees appealed the district
court's implicit finding in its March 4, 2014 ruling that
the November 7 and November 14 gatherings were meetings.
See generally Olinger, 2015 WL 1331269, at
However, this court vacated the district court's findings
insofar as they exceeded the scope of the limited matter
actually before the district court-whether the drainage
district and its trustees were required to disclose the
recordings of the two November gatherings. Id. at
*8. Further, the issue was subsequently litigated before and
decided by the district court in its September 29, 2015 order
and judgment; thus, we will address this claim on its merits.
district court found "[t]he Harrison County board of
supervisors meets weekly" and "[t]he individual
members of the Harrison County Board of Supervisors also
serve as the trustees for the Utman Drainage District."
The events at issue arose "[a]t their weekly Harrison
County Board of Supervisors meeting."
drainage district and its trustees contend this weekly,
scheduled meeting was not a "meeting" under chapter
21 because there was no "deliberation or action"
and "no intent to avoid the purposes" of IOMA.
"Deliberation generally involves 'discussion and
evaluative processes in arriving at a decision or
policy.'" Hutchison, 878 N.W.2d at 232 n.1
(quoting Hettinga v. Dallas Cty. Bd. of Adjustment,
375 N.W.2d 293, 295 (Iowa 1985)). "[A] gathering may be
'purely ministerial' if members of a body assemble
simply to receive information without discussing policy or
intending to avoid the purposes of the open meetings
law"; however, "ministerial activities may develop
into deliberation if the members of a governmental body
'engage in any discussion that focuses at all concretely
on matters over which they exercise judgment or
discretion.'" Id. (citation omitted).
the drainage district and its trustees contend no
deliberation or action occurred, the district court found and
the record supports that, at the November 7, 2013 meeting,
"the trustees entered a closed session to discuss
litigation for approximately [three] minutes"; the
trustees discussed the letter received from Olinger and Meyer
threatening legal action-specifically addressing who had
received the letter; and "the trustees all agreed to
wait on any action" with regard "to the payment of
court costs requested in the previous litigation." The
drainage district's own meeting notes indicate the
trustees "discuss[ed] the litigation against the
[drainage district]." The transcript from the closed
session demonstrates the trustees discussed how to respond to
the letter threatening litigation and how to respond to the
demand for payment of costs.The trustees' deliberation and
decision not to act was more than a gathering to
"receive information" and constitutes a
"deliberation or action" within the meaning of
is less evidence available regarding what occurred during the
November 14 meeting. The drainage district's notes from
the November 14 gathering indicate the trustees "entered
into closed session to discuss the possible litigation
against the [drainage] district, " a description adopted
by the district court in its ruling. It is apparent the
trustees, in some manner, discussed the threatened
litigation. Following the closed session, the trustees hired
outside counsel for the drainage district.
drainage district and its trustees reference numerous cases
in support of their contention the gatherings did not
constitute meetings-all of which are distinguishable. They
rely on Gavin v. City of Cascade, 500 N.W.2d 729
(Iowa Ct. App. 1993). In Gavin, the district court
found, and our court affirmed, that a genuine issue of fact
existed as to whether a meeting was held when two council
members met at an excavation site with the excavator and
contacted two other council members by phone before giving
the excavator approval to conduct certain work at the
city's expense. 500 N.W.2d at 730-31. Our court also
affirmed the district court's finding no meeting had
occurred on a separate occasion when there was never a
majority of the council present, as statutorily required to
constitute a meeting. Id. at 732. Finally, our court
considered whether a meeting was held when three of the
council members went to view some rock one of the council
members was considering purchasing. Id. Our court
found "no evidence any deliberation or action took place
when the men met at the rock" and there was
"no evidence of any intent to avoid the purposes of
chapter 21." Id. This case is distinguishable
because in Gavin the gathering was not a structured,
routinely held meeting of the council where council business
was discussed and action was taken. This was simply three
council members viewing some rock in order to consider later
whether a purchase should be made at some future date.
in Dooley v. Johnson County Board of Supervisors,
No. 08-0195, 2008 WL 5234382, at *1 (Iowa Ct. App. Dec. 17,
2008), the Johnson County Board of Supervisors contracted
with a party to study the issue of whether to develop a new
road through part of Johnson County. Following a preliminary
recommendation, the contractor met with the board members in
groups of two to discuss the preliminary report and acquire
their input. Dooley, 2008 WL 5234382, at *2. The
court of appeals noted it was a close case but found no
deliberation or action was discussed, as the gatherings
simply provided the board members the opportunity to obtain
information and clarification from the contractor about the
preliminary report. Id. at *4-5. However, the court
of appeals noted it "believe[d] that the board's
decision to review the draft in this fashion was a poor one,
" that the "purpose [of the gatherings] appears
dangerously close to 'deliberation, '" and
cautioned the board about its statutory obligations.
Id. at *5. The court did not reach the issue of
whether a majority of the board was present and whether there
was any intent to avoid the purposes of IOMA. Id. at
*4-5. Again, here, the trustees met and entered into closed
sessions during routine meetings of the drainage district to
discuss the pending litigation and demand for court costs;
they were not simply gatherings to obtain information.
Hettinga, 375 N.W.2d at 294, a majority of board
members met privately with the county attorney prior to a
scheduled meeting to discuss a zoning ordinance. In finding
no "meeting" occurred, the court of appeals
All parties who were in that adjoining room testified that
merits of the case were not mentioned and only the applicable
law was discussed. It further does not appear that any member
of the board intended to violated chapter 21. Based on this
record, we hold that the provisions of chapter 21 were not
violated because no deliberation or action regarding board
policy-making occurred during the gathering. The gathering
was solely for the purpose to elicit a clarification of a
point of law from the county attorney.
Hettinga, 375 N.W.2d at 295. Again, here, this was
not a circumstance in which a gathering occurred
prior to a scheduled meeting. This was a
scheduled meeting. The discussion was not with a county
attorney for fact-gathering; it was a discussion of the board
members about what action-if any-to take.
Mason v. Vision Iowa Board, 700 N.W.2d 349, 356
(Iowa 2005), the Iowa Supreme Court determined no meeting had
occurred because the committee at issue had no authority to
decide the issues at hand, only to make recommendations to
the board about what course of action to take. Because the
board was the actual decision maker, and the committee did
not have or exercise any policy-making duties, no meeting was
held. Mason, 700 N.W.2d at 357. This is not a
circumstance in which the trustees were constrained to
function only in an "advisory function, " as was
the case in Mason. See id. at 358.
the drainage district and its trustees rely upon
KCOB/KLVN, Inc. v. Jasper County Board of
Supervisors, 473 N.W.2d 171 (Iowa 1991). In
KCOB, the claimants challenged the sufficiency of
the notice of certain meetings. 473 N.W.2d at 173-75. Notice
is not at issue here. The claimants also alleged a budget
session constituted a meeting under chapter 21; but the
supreme court noted the claimants failed to challenge the
district court's finding that no policy-making occurred
at the gatherings. Id. at 175. The claimants then
challenged the method by which a closed session was held.
Id. at 175-76. Notably, the dispute was not whether
the closed session constituted a meeting. The supreme court
affirmed the district court's finding the board
"substantially complied" with its obligations under
section 21.5(2) (providing the means by which a closed
session can be held) and only "procedural
irregularit[ies]" occurred. Id. at 176.
Finally, the supreme court affirmed the district court's
ruling the claimants otherwise failed to prove any other
gathering-let alone meeting for statutory purposes- ever
occurred. Id. at 176-78. Collectively, these cases
do not support the drainage district and its trustees'
contention that no meeting occurred.
the Iowa Code defines "open session" to
"mean a meeting to which all members of the
public have access." Iowa Code § 21.2(3) (emphasis
added). Section 21.3 provides
"[m]eetings of governmental bodies . .
. shall be held in open session unless closed sessions are
expressly permitted by law." Id. § 21.3
(emphasis added). Here, the trustees explicitly voted to hold
closed sessions under section 21.5, which indicates their own
determination that the gatherings constituted
meetings. Likewise, they recorded the sessions and
kept meeting notes as required by section 21.5(4)(a) and
provided notice of the meetings as required by section 21.4.
holding, the district court determined,
It is clear from the record that defendants considered this
gathering to be a meeting governed by the open meetings law.
Their actions voting to close as well as keeping a record
supports this conclusion. Decisions simply to wait or to
further contact legal counsel were made. This Court
concludes, as did the individual trustees, that a closed
substantial evidence supports the district court's
conclusion and affirm.
found a governmental body held meetings that were closed, the
burden rests with the governmental body to demonstrate it
satisfied the requirements of IOMA. Id. §
21.6(2). The trustees first argue they "substantially
complied" with IOMA, noting the district court's
repeated findings to that effect. We acknowledge the district
court's finding of substantial compliance is inconsistent
with its finding of a violation. Thus, we next consider
whether the district court's finding of "substantial
compliance" was correct.
supreme court first applied the "substantial
compliance" standard in the IOMA context in
KCOB. 473 N.W.2d at 176; see also City of
Postville v. Upper Explorerland Reg'l Planning
Comm'n, 834 N.W.2d 1, 9 (Iowa 2013). In
The deputy auditor, the secretary of the meeting, was asked
to leave and then the Board voted to go into a closed
session. Due to the deputy auditor's absence, no minutes
of the vote of each member or the reason for holding the
closed session were taken as required by chapter 21. A tape
recorder, turned on before the [relevant] meeting started,
revealed that the deputy auditor was asked to leave and that
a vote was taken. The tape was played as evidence at trial.
Although notice of the [relevant] meeting was posted, no one
attended the meeting except Board members, the employee, and
the deputy auditor. With the exception of the deputy auditor,
no members of the public were unlawfully excluded from the
473 N.W.2d at 176. The supreme court "agree[d] with the
trial court's finding that the Board was in substantial
compliance with [IOMA]" as "the Board satisfied the
statutory requirements but the deputy auditor was excused
before the vote and could not record the minutes"; thus,
only a "procedural irregularity occurred."
Id. Here, two meetings were held, twice the trustees
voted to go into closed session, and both times there was no
statutory basis for closing the session. This was more than a
"procedural irregularity, " which resulted in the
actual exclusion of persons from the meeting. While the
trustees may well have been unaware that their actions
violated IOMA, "[i]gnorance of the legal
requirements" of IOMA is "no defense to an
enforcement proceeding." Iowa Code § 21.6(4). We
determine the district court erred in finding the trustees
substantially complied with the requirements of IOMA.
Code section 21.6(3)(a) provides "[a] member of a
governmental body found to have violated [IOMA] shall not be
assessed . . . damages if that member proves that the
member" either "[v]oted against the closed session,
" "[h]ad good reason to believe and in good faith
believed facts which, if true, would have indicated
compliance with all the requirements of [IOMA], " or
"[r]easonably relied upon . . . a formal opinion of . .
. the attorney for the governmental body, given in writing,
or as memorialized in the minutes of the meeting at which a
formal oral opinion was given, or an advisory opinion of . .
. the attorney for the governmental body, given in
writing." Accordingly, these defenses only come into
play after a finding of a violation has been made.
specifically making a finding that IOMA had been violated,
the district court concluded
[The trustees] had good reason to believe and in good faith
believed that they were in compliance with all the
requirements of the open meetings law. They had relied upon
advice of legal counsel conveyed to them through clerk
Elizabeth Lenz. There is not a scintilla of evidence that
anyone intended to violate the open meetings statute. Rather,
the evidence establishes that the supervisors did everything
in their power pursuant to legal advice to comply with the
open meetings statute. This Court specifically finds that
defendants substantially complied with all requirements of
the open meetings statute. The technical violation of the
physical absence of legal counsel does not weaken or diminish
the good faith exhibited by [the trustees]. The Court
specifically finds that the [trustees] have met their burden
in showing both good faith and good reason to believe all
requirements of the open meetings law had been complied with
by the trustees.
on these conclusions-and despite its statement the trustees
"substantially complied" with the code-the district
court appears to have found a violation occurred but the
trustees proved they had good reason to, and in fact did, act
in good faith. See Iowa Code § 21.6(3)(a)(2).
Olinger and Meyer dispute this finding, arguing the trustees
did not have good reason to believe they were acting in
compliance with chapter 21.
we note the code requires the individuals have "good
reason to believe and in good faith believed facts
if true, would have indicated compliance with all the
requirements of [IOMA]." Id. (emphasis added).
Here, no "facts" are proffered by the trustees.
See, e.g., Hawkeye Commc'ns, Inc. v.
Carlson, No. 04-1674, 2005 WL 3940279, at *6 (Iowa Ct.
App. Dec. 21, 2005). They simply repeatedly contend they
believed they were not in violation of chapter
21.The only argument proffered in the
record-though not in the parties' briefing- seems to have
been the trustees' belief counsel did not need to be
present for a closed session to be held. But this is not a
"fact"; it is a misunderstanding of the law, and
"[i]gnorance of the legal requirements of [IOMA] [is] no
defense to an enforcement proceeding." Iowa Code §
than discuss a "fact" that, if true, would have
meant the trustees would not be assessed damages for a
violation of the requirements of IOMA, the
trustees and the district court invoke the
trustees' reliance on the alleged legal advice of
counsel. See id. § 21.6(3)(a)(2)-(3). Reliance
on legal counsel, however, is a separate defense. See
id. § 21.6(3)(a)(3). To apply, the legal advice of
counsel must either be "given in writing" or
"memorialized in the minutes of the meeting at which a
formal oral opinion was given." Id. Neither
applies here. The trustees did not receive a written opinion
from counsel-any opinion they received was from Lenz who
corresponded directly with counsel. Further, it is undisputed
no counsel directly provided oral advice to the trustees at
any time before or during the meeting. The defense in section
21.6(3)(a)(3) is thus not met.
district court also noted the trustees did not have the
benefit of this court's previous decision when they went
into closed session. The district court concluded, "The
presence of legal counsel requirement was contrary to the
advice given to the trustees by their own legal counsel. It
is simply not proper to hold the trustees accountable for . .
. a legal interpretation of [IOMA] that did not exist at the
time the choice to go into closed session was made." A
party may rely "upon a decision of a court, "
id. § 21.6(3)(a)(3), but where a potential
ambiguity exists, a governmental body "is authorized to
bring suit . . . to ascertain the propriety of [holding a
closed meeting], or seek a formal opinion of . . . an
attorney of the governmental body, " id. §
21.6(4). Here, the trustees did not rely upon a decision of a
court or the requisite written opinion of counsel. This
court's subsequent decision on the section does not
provide the trustees a defense of good faith. See
id. ("Ignorance of the legal requirements of this
chapter shall be no defense . . . .").
is no doubt the district court believed the trustees'
actions were well-intended. But good intentions do not equate
to a "good reason to believe" and "good faith
belie[f]" in "facts" that, "if true,
would have indicated compliance with all the requirements of
this chapter." Id. § 21.6(3)(a)(2);
see also Hawkeye Commc'ns, 2005 WL 3940279, at
*6 ("[E]ven if [the individual] honestly believed he was
acting in compliance with chapter 21, he did not have good
reason to hold such a belief.").
and Meyer allege the district court should have removed the
trustees from office pursuant to section 21.6(3), which
Upon a finding by a preponderance of the evidence that a
governmental body has violated any provision of this chapter,
. . . .
d. Shall issue an order removing a member of a governmental
body from office if that member has engaged in a prior
violation of this chapter for which damages were assessed
against the member during the member's term."
(Emphasis added.) There is no evidence in the record before
us of any judicial determination of a "prior
violation" by the trustees for which damages were
assessed. The fact Olinger and Meyer allege more than one
violation in this action does not satisfy the requirement for
a "prior violation."
and Meyer seek the imposition of maximum statutory damages
against the trustees. See Iowa Code §
21.6(3)(a) (instructing that "[u]pon a finding by a
preponderance of the evidence that a governmental body has
violated any provision of this chapter, a court . . . [s]hall
assess each member of the governmental body who participated
in its violation damages in the amount of not more than five
hundred dollars and not less than one hundred dollars.
However, if a member of a governmental body knowingly
participated in such a violation, damages shall be in the
amount of not more than two thousand five hundred dollars and
not less than one thousand dollars."). We find the
record is sufficient to address this on appeal and conclude
the record does not support a finding of a knowing violation
by the trustees. As noted by the district court, the trustees
communicated with counsel, endeavoring to comply with IOMA.
While the trustees have not met the burden of proving a
good-faith defense, their efforts to remain in compliance
with IOMA mitigate against a finding of a knowing violation
and toward an assessment of the lowest damage award provided
under section 21.6(3)(a). Accordingly, we assess a $200 total
fine against each trustee for the two violations.
parties dispute the attorney fees awarded by the district
court. The drainage district and its trustees contend the
district court's finding of substantial compliance means
no violation of chapter 21 occurred; thus, fees should not
have been awarded. Olinger and Meyer contend the district
court abused its discretion in reducing the amount of fees
awarded. For the reasons stated above, we find the trustees
were in violation of IOMA and thus the award of fees was
mandated. See Iowa Code § 21.6(3) ("Upon a
finding by a preponderance of the evidence that a
governmental body has violated any provision of [IOMA], a
court: . . . b. Shall order the payment of all costs and
reasonable attorney fees in the trial and appellate courts to
any party successfully establishing a violation of this
trial, Olinger and Meyer sought $6430 in appellate fees-for
approximately 35 hours billed at $175 an hour-and $5440.83 in
trial fees. The record did not indicate the trial
counsel's hourly rate. The district court noted Olinger
and Meyer were charged $1000 for trial preparation and $1200
for trial. The district court concluded trial-which lasted
three hours-and trial preparation should have required a
total of six hours billed. The district court also determined
a reasonable fee was $100 per hour and adjusted the appellate
fees to $4106.96 and the trial fees to $3940.83. Olinger and
Meyer contend this adjustment was an abuse of discretion.
setting reasonable attorney fees, courts consider the
[T]he time necessarily spent, the nature and extent of the
service, the amount involved, the difficulty of handling and
importance of the issues, the responsibility assumed and
results obtained, the standing and experience of the attorney
in the profession, and the customary charges for similar
Boyle v. Alum-Line, Inc., 773 N.W.2d 829, 832-33
(Iowa 2009) (alteration in original). The district court did
not explicitly consider the attorney's standing and
experience or the customary charges for similar services.
See id. at 833 ("[D]etailed findings of fact
with regard to the factors considered must accompany the
attorney fee award."). However, we note the hours billed
and the rate applied for building, prosecuting, and appealing
this case were not excessive. Further, cases based on IOMA
are not run-of-the-mill cases, and the plaintiffs'
attorneys obtained favorable results. We reverse the district
court's downward adjustment of the fee total and award
the full amount requested by Olinger and Meyer.
Appellate Attorney Fees
and Meyer seek and are entitled to appellate attorney fees.
See Iowa Code § 21.6(3)(b). Based on the
affidavits submitted and the above consideration of the
applicable factors, which we find equally applicable here, we
award Olinger and Meyer $13, 037.22 in appellate attorney
affirm the district court's finding the trustees violated
IOMA. We reverse the district court's finding the
trustees met their burden to prove a good-faith defense. We,
therefore, assess a $200 total fine against each trustee for
the two violations. We further reverse the district
court's downward adjustment of the attorney fees
requested at trial and award the full amount sought by
Olinger and Meyer. We further award Olinger and Meyer
appellate attorney fees to be jointly and severally paid by
the trustees. We remand for an entry of judgment by the
district court consistent with this opinion.
IN PART, REVERSED IN PART, AND REMANDED.
 Olinger and Meyer contend this
argument was not preserved because the drainage district and
its trustees admitted the events at issue were meetings in
their answer to the petition. Paragraph 13 of the petition
states, "The meeting at the Board of Supervisors'
meeting room on November 7, 2013 and November 14, 2013,
constitute a 'meeting' under Iowa Code §
21.2(2)." This paragraph was denied by the drainage
district and its trustees. We find the issue was
 The trustees claim there is no
indication they went into closed session to discuss the court
costs. Contrary to this contention, the majority of the
discussion held on November 7 pertained to the court costs,
not the letter received from Olinger and Meyer. Further,
Utman testified he believed it was appropriate for the
trustees to go into a closed session to discuss the letter
from Olinger and Meyer and the court costs from the
previous litigation. Further, chapter 21 specifically
precludes discussion of any topics in closed sessions that
did not serve as a basis for entering into a closed session.
See Iowa Code § 21.5(2) ("A governmental
body shall not discuss any business during a closed session
which does not directly relate to the specific reason
announced as justification for the closed session.").
Thus, by discussing the court costs, the trustees presumably
intended it to serve as a basis for entering into a closed
 We note, however, while section
21.2(2) defines a "meeting, " section 21.5(3)
provides "[f]inal action by any government body on any
matter shall be taken in an open session unless some other
provision of the Code expressly permits such actions to be
taken in closed session." Iowa Code §§
 The trustees repeatedly contend there
is no evidence they were trying to "avoid the purposes
of this chapter." Iowa Code § 21.2(2). But these
gatherings were held as standard, weekly meetings of the
drainage district. There is no indication they were just
gatherings for "purely ministerial or social
purpose[s]" used as a means "to avoid the
purposes" of IOMA, because it is facially apparent they
were routine "gathering[s] . . . of a majority of the
members of a governmental body where there [wa]s deliberation
or action." Id.
 The drainage district and its trustees
also rely upon Wings v. Dunlap, 527 N.W.2d 407, 409
(Iowa Ct. App. 1994), where this court first applied the
"substantial compliance" test in an Iowa Code
chapter 22 (Open Records Act) challenge. Notably, the supreme
court has yet to decide if the "substantial
compliance" standard applies in the Open Records Act
context. See Horsfield Materials, Inc. v. City of
Dyersville, 834 N.W.2d 444, 462 (Iowa 2013) (finding no
substantial compliance). Regardless, in Wings, the
dispute was over the approximate month delay the plaintiff
faced before receiving "full access and an opportunity
to review all of the documents she wanted to see." 527
N.W.2d at 409. Based on the specific circumstances of that
case, we determined the governmental party had substantially
complied with its statutory obligations. Id. at 410.
It does not prove analogous to our situation here, where the
meetings were held in closed sessions without statutory
 In Hawkeye Commc'ns, the
court found the good-faith defense was not met when the
individual was aware of the change in circumstances by the
time the meeting began, was advised of a legal opinion that
the meeting violated chapter 21, and had been trained on what
constitutes a violation of chapter 21 and the consequences
for such a violation. 2005 WL 3940279, at *6.
 For instance, Smith vaguely testified
he thought he was complying with chapter 21 and relied on
advice of counsel.
 At trial, Lenz testified she routinely
gathered information from the attorney and passed it on to
the trustees, including whether the trustees could lawfully
enter into a closed session. Utman testified they relied upon
Lenz for this information.
 Specifically, the district court
ruled, "In the case at a hand, all evidence presented at
trial indicates that the individual supervisors did their
utmost to comply with the open meetings statute. Simply, the
supervisors relied on the advice of legal counsel at all
 The trustees also rely upon City
of Riverdale v. Diercks, 806 N.W.2d 643 (Iowa 2011). In
Diercks, a violation of chapter 22 (Open Records
Act), not chapter 21, was at issue. 806 N.W.2d at 645.
Chapter 22 provides "[g]ood-faith, reasonable delay by a
lawful custodian in permitting the examination and copying of
a government record is not a violation of this chapter"
when "the purpose of the delay" is to "seek an
injunction, " "determine whether the lawful
custodian is entitled to seek an injunction, "
"determine whether the government record . . . is a
public record, " or "determine whether a
confidential record should be available for inspection."
Iowa Code § 22.8(4). Chapter 22 does not comparably
require the same belief in a fact that, if true, would have
brought the government actors in compliance with the code
section. In Diercks, the court considered whether
reliance on advice of counsel could establish subjective good
faith on the part of the government actors. 806 N.W.2d at
657. Again, in chapter 22, "good faith" is a
requirement that is paired with a certain action, like
seeking an injunction. Iowa Code § 22.8(4). Under
chapter 21, the "good faith" at issue is a
"good faith belie[f]" in a fact or facts.
Id. § 21.3(a)(2). It appears the trustees are
attempting to escape the requirements of section
21.6(3)(a)(3)-which are not met in this matter-by using the
advice of counsel to satisfy section 21.6(3)(a)(2)'s
requirement for a "fact."