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." I ...