Deja vu: Alleged open meeting violation

The Montgomery County Board of Supervisors is under investigation for a reported violation of the open meetings laws.
The complaint was filed by rural Red Oak resident Jan Norris. Norris cited several factors in pursuing the complaint with the Iowa Public Information Board.
• Under the proposed violation of the Open Meetings Law, Norris cited that the board has a meeting room in the basement of the courthouse. They failed to vote in public to go into closed session. They only cited Iowa Code as the purpose for the closed session. Also, a vote was not taken in the room where the public had gathered.
• As for the violation of the Public Records Law, Norris cited a failure to include the minutes of the roll call vote and purpose for the closed session. The minutes failed to how each supervisor voted on going into closed session. Norris also noted that the supervisors cited code number 21.5(1)C for going into closed session. However, a reason was never given during the meeting. The minutes reflect closed session for pipeline discussion as an agenda item next week.
• Norris also raised questions as to whether the closed session was recorded as required. The reported violation is summarized below:
On July 2, at approximately (at 20:32 on the zoom recording} Chair Mike Olson stated, “At this time we are going to recess for a little bit and go upstairs to the board room and go into closed session. Then the five supervisors departed along with the County Attorney, Drew Swanson; Assistant County Attorney, Bruce Swanson; and Auditor Jill Ozuna, leaving the public in attendance remaining in the basement board room, with the zoom still running, but not recording. The meeting resumed at 10:05 a.m. without the county attorneys. No mention was made of actions (or none} in closed session.
At their regular meeting on June 25, 2024 during discussion of agenda items for next week, Supervisor’s Chair Mike Olson said “I got on there closed session”. After other agenda items from the Auditor, Supervisor closed session.” After other agenda items from the Auditor, Supervisor Donna Robinson asked, “Mike, you’re requesting closed session in regard to ... (inaudible) the Iowa Code because of pursuant, er ... , because of possible litigation?” Olson, “Yep.” Robinson, “That wouldn’t become permanent, so I guess that would be ... (inaudible). Auditor Jill Ozuna,” ... (inaudible) Chapter 21? {looked up in book} 21.5c.”
I transcribed from the Zoom recording- discussion begins about 40:16
The public has been in attendance at nearly every supervisor meeting for two years pleading with them to hold public discussion about the proposed Summit C02 pipeline and to pass a hazardous liquid pipeline ordinance. The chair, Mike Olson, has gotten very defensive and angry at the public and he has backed down other board members when they have brought up wanting to talk about the pipeline. It is a legitimate concern that the scope of their closed door discussion may have strayed beyond the ·imminent litigation~reason cited.
Webster’s Dictionary defines imminent as: ready to take place: happening soon. Dictionary. com defines it as: likely to occur at any moment. There is a strong argument that Montgomery County has no ·”imminent” threat of litigation to discuss. A pipeline ordinance was drafted in December, 2022 and was tabled in early 2023. A new draft would need to be written and approved after a public hearing by the Planning & Zoning Commission, then three public hearings would need to be held by the Board of Supervisors before they would be in a position to adopt it. This process would likely take months.
“Imminent litigation,” as the county later used it to justify the closed session, is too broad because every action the board takes on any issue conceivably could lead to litigation.
• The purpose is for those discussions of what the county should or should not do ought to occur in a public meeting.
• Closed sessions with either of the county attorneys should be reserved for attorney/client conversations.
• The way the supervisors are handling this is depriving the citizens of an opportunity to hear the basis and rationale for the county’s actions- or the county’s lack of actions.
• The second sentence of the public meetings law says that any ambiguity in the interpretation or application of the public meetings law should be resolved in favor of openness.
• In other words, if it is a close call, openness should prevail.
Surely the intent of closed meetings is not to conceal board discussion from the public. If all a board has to do is claim litigation strategy and invite their county attorney to be in attendance to hold discussions which should be public, it does not fulfill the spirit of the open meetings law.
The complaint requested the following actions be taken.
• For the IPIB to find that these violations did occur.
• For the Montgomery County Board of Supervisors to announce the purpose for a closed session during the public portion of the meeting.
• Take a roll call vote before entering closed session.
• If the board will be changing locations for their meeting, the alternative location should be publicized along with the meeting notice.
• For the auditor and supervisors to ensure that the official minutes include the specific reason for a closed session and the vote of each member.
Montgomery County Auditor Jill Ozuna said that neither she nor the Montgomery County Board of Supervisors are able to comment on the situation until they file a response with the Iowa Public Information Board on Aug. 7.
According to the Red Oak Express Archives, this is the first time in many years that an Open Meetings Law complaint has been filed with the IPIB, though the past issues were of a different variety when leading to the complaint being issued.
In 2003, when the board was made up of members Harry Vannausdle, Leland Carmichael, Dale Carlson, Margaret Stoldof, and Glen Beskin, concerns started being raised initially over meeting times. Then-assistant editor Stephen Lega shared that the Express received a fax at 3 p.m. the day before the meeting that a meeting was planned at 1:30 the next day. This was later revised with a fax at 4:15 p.m. stating the meeting would be at 3 p.m. the next day. Neither proposed time gave the media outlets the required 24-hour meeting notice in advance. After the county attorney was contacted, a final agenda was sent at 5 p.m. that day with a 6 p.m. meeting time the following day, for 25 hours notice in advance.
Then-pubisher Jan Castle Renander commented on the situation on the Feb. 25, 2003 Viewpoints page of the Red Oak Express.
“You must give 24 hours notice for a public meeting … The repetition may seem silly but is quite necessary based on the actions by the Montgomery County Board of Supervisors and the clerk for the board. At the last meeting, County Attorney Bruce Swanson discussed the Open Meetings Law … The supervisors thanked Swanson for his time. He distributed hand-out materials just like in school. Representatives of this newspaper and KCSI were also on hand to back up Swanson’s points. Less than six hours later, the supervisors violated the Open Meetings Law,” Renander’s editorial said.
While Renander added the issue may seem nit-picky to some, she disagreed, adding the law existed for a reason and that the public had a right to know when and where the government leaders would be meeting, what they would be discussing, and what decisions they would be making, and that the public had the right to be there to voice an opinion.
The issues did not cease there, however. Renander shared in the March 11, 2003 edition of the Express that prior to the then-board of supervisors meeting on Feb. 27, Supervisors Carmichael, Benskin, and Carlson met with a representative of the mental health department and held discussion for 10 minutes prior to the official 9 a.m. start time of the meeting. Renander pointed out that a quorum of the board was present, official discussion took place, and it was outside the purview of the legally scheduled and publicly announce meeting time.
“We believe the representative was merely trying to provide udeful information to the board members. However, the supervisors should know the law and could have easily prevented the situation,” Renander remarked in her March 11, 2003 Viewpoints editorial. “The bottom line is this: It doesn’t matter if the conversation takes place 10 minutes, 10 hours, or 10 days before the scheduled meeting. It’s a violation of the law.”
According to the Aug. 26, 2003 edition of the Red Oak Express, things came to a head when it was discovered the supervisors met in quorum before Feb. 14, 2003 at a restaurant, held two separate illegal meetings on Feb. 21, 2003, and committed another violation prior to a meeting Feb. 24, 2003. As a result, The Red Oak Express, KCSI, and The Villisca Review filed a petition in district court seeking a court injunction barring future violations of the law, an imposition of penalties against the individual defendants, and for attorney fees and costs to be taxed to the defendants as provided in Chapter 21 of the Code of Iowa. At the time of that edition, the supervisors named in the suit had not determined how they would respond. The media petition had received support from the Iowa Freedom of Information Council.
Carlson and Carmichael were found guilty of violating Iowa’s Open Meetings Law in a ruling filed Sept. 23, 204 by then-Judge Charles H. Smith. Carlson and Carmichael were found guilty of two counts stemming from a Feb. 24, 2003 meeting. The third charge on the restaurant meeting was dismissed by the judge. The judge ruled the violation was “obvious” and that Iowa law says deliberations consitute a meeting. Carmichael and Carlson were fined $300 each and ordered to pay the court costs.
In her Sept. 24, 2004 editorial, Renander said the ruling vindicated the county media outlets.  Also vindicated was County Attorney Bruce Swanson, who had advised Carlson and Carmichael to settle the matter prior to trial, Benskin, who had also been named in the suit, admitted his mistakes, followed Swanson’s advice, and tried to do better. Also vindicated was Supervisor Stoldorf, who sought the advice of two attorneys prior to the meetings in question, was advised the meetings would be illegal, and tried to convice her fellow supervisors to follow the advice. She was not named in the lawsuit filed by the three media entities as she tried to do the right thing. Renander’s column said the ruling sent a clear message: The Iowa Open Meetings Law meant business. Public business had to be conducted in the public eye.
“The case has not been easy,” Renander wrote in her Sept. 28, 2004 Viewpoints column. “As plaintiffs, we’ve been routinely, regularly, and unfairly criticized. We’ve been maligned, called an assortment of names, been verbally abused and our businesses economically threatened … We tried to avoid this whole legal mess. Carlson and Carmichael had several opportunities to settle this matter without the time, agony, and expense of a trial. They refused all the options.”
Carlson took the ruling to the Iowa Court of Appeals. Arguments were heard on the case in September of 2005. In November of 2005, the Iowa Court of Appeals affirmed the district court’s decision.