Peg Hutchison, Dan Johnson, Russ Nichols, Shawn Ripperger, Leigh Ann Swain, and Shelly Vander Tuig v. Douglas Shull, Steve Wilson, Dean Yordi, the Board of Supervisors for Warren County, Iowa, and Warren County, Iowa , 878 N.W.2d 221 ( 2016 )

IN THE SUPREME COURT OF IOWA
No. 14–1649
Filed March 18, 2016
PEG HUTCHISON, DAN JOHNSON, RUSS NICHOLS, SHAWN
RIPPERGER, LEIGH ANN SWAIN, and SHELLY VANDER TUIG,
Appellants,
vs.
DOUGLAS SHULL, STEVE WILSON, DEAN YORDI, THE BOARD OF
SUPERVISORS FOR WARREN COUNTY, IOWA, and WARREN
COUNTY, IOWA,
Appellees.
Appeal from the Iowa District Court for Warren County, Mary Pat
Gunderson, Judge.
Former county employees appeal a district court judgment finding
no violation of the open meetings law found in Iowa Code chapter 21.
REVERSED AND REMANDED WITH DIRECTIONS.
Thomas W. Foley, David H. Goldman and Katie Ervin Carlson of
Babich Goldman, P.C., Des Moines, and Michael J. Carroll of Coppola,
McConville, Coppola, Carroll, Hockenberg & Scalise, P.C., West Des
Moines, for appellants.
Patrick D. Smith and Mitchell G. Nass of Bradshaw, Fowler,
Proctor & Fairgrave, Des Moines, for appellees.
2
Ryan G. Koopmans and Scott A. Sundstrom of Nyemaster Goode,
P.C., Des Moines, for amici curiae Iowa Newspaper Association and Iowa
Freedom of Information Council.
3
WIGGINS, Justice.
Former Warren County employees brought an action against the
county and its board of supervisors alleging a violation of the open
meetings law contained in chapter 21 of the Iowa Code. The district
court dismissed the action, finding the board members’ activities did not
constitute a “meeting” as defined in Iowa Code section 21.2(2) (2013). In
reaching its conclusion, the district court found that although the board
members deliberated concerning matters within the scope of their policy-
making duties, a majority of the supervisors never deliberated at a
meeting within the meaning of section 21.2(2). On appeal, we conclude
the definition of meeting in section 21.2(2) extends to all in-person
gatherings at which there is deliberation upon any matter within the
scope of the policy-making duties of a governmental body by a majority of
its members, including in-person gatherings attended by a majority of
the members by virtue of an agent or a proxy. Therefore, we reverse the
judgment of the district court and remand the case for further
proceedings consistent with this opinion.
I. Background Facts and Proceedings.
As permitted under the Iowa Code, a board of supervisors
consisting of three elected board members governs Warren County (“the
county”). See Iowa Code § 331.201. At all times relevant to this appeal,
the Warren County Board of Supervisors was comprised of board
members Douglas Shull, Steve Wilson, and Dean Yordi. Prior to the
events giving rise to this suit, the county employed approximately 175
full-time employees in thirty-five departments.
The citizens of Warren County first elected Supervisor Shull to the
board of supervisors in 2008. During his campaign, Shull promised to
increase the overall efficiency of the county government. After
4
Supervisors Yordi and Wilson joined the board in 2010, they elected
Supervisor Shull to the position of board chair. Like Supervisor Shull,
Supervisor Yordi campaigned on improving government efficiency when
he ran for office.
In May 2013, the supervisors hired Mary Jean Furler for the newly
created position of Warren County Administrator to assist them in
achieving their objective of improving the efficiency of the county
government. As county administrator, Furler implemented board
actions, supervised appointed department heads, and directed
preparation of the annual budget, among other duties. In addition, she
was responsible for assisting the board with developing and prioritizing
its policy objectives, goals, and strategic plans. Because Administrator
Furler acted pursuant to delegated authority, the board’s power to act
defined the scope of her own power to act on its behalf.
The events that led the employees to sue the board began in
January 2014 when the annual county budget process was just getting
underway. The Iowa Code requires elected or appointed officers and
boards responsible for county offices and departments to submit itemized
departmental budget estimates for the upcoming fiscal year to the county
auditor or other designated official by January 15 of each year. Id.§ 331.433. Department heads, county supervisors, and other officials
meet to discuss the estimated departmental budgets at a series of budget
workshops. The county auditor or designated official then compiles the
departmental budgets into the overall county budget, which the board of
supervisors may adjust based on overall county objectives. The Code
provides the board must approve the overall county budget at a public
meeting and the chairperson of the board must certify the budget no
later than March 15. Id. §§ 24.9, .17.
5
Warren County Budget Director Katherine Rupp was responsible
for coordinating the county budget for fiscal year 2015. To that end,
Director Rupp conducted a series of budget workshops attended by the
board, Administrator Furler, county department heads, and elected
county officials in early January 2014. The county posted notice of the
workshops in advance, and the workshops were open to the public.
During these workshops, neither Administrator Furler nor the
supervisors mentioned the possibility of reorganizing the county
government or asked the department heads to reduce personnel costs.
Likewise, when the supervisors discussed the budget at two additional
open meetings later in January, they did not mention the possibility of
reorganizing the county government.
On March 4, the board of supervisors held a public meeting and
unanimously approved the budget for the upcoming fiscal year. Director
Rupp gave a presentation in which she reviewed the budget and
summarized the main budget issues facing the county. During that
presentation, she noted personnel costs represented fifty-one percent of
the proposed overall county budget—a slight increase over the prior year.
Director Rupp attributed this change to rising health insurance costs,
indicating that further cost increases resulting from the recent passage
of federal healthcare legislation would need to be monitored and
decisions made to minimize their effect. In addition, the county’s future
revenue was uncertain due to stagnant growth of the county’s property
tax base and the possibility the state would stop supplementing county
revenue to cover declines caused by recent commercial property tax
reform. However, Director Rupp also noted Warren County was the most
populous county in the state without any debt and emphasized the
proposed budget projected a significant decrease in expenditures
6
compared to updated estimates for fiscal year 2014. The board
unanimously approved the budget, which included all county employees’
present salaries and raises they were to receive during fiscal year 2015.
At the start of the budget process in January 2014, the board had
not yet formalized a plan to eliminate any existing positions within the
county workforce. Nevertheless, testimony at trial established that
beginning in January, the supervisors and Administrator Furler worked
together to develop such a plan. By that point, Supervisor Shull had
already had numerous discussions with Administrator Furler about
reorganizing the county workforce. He testified the other supervisors
also began meeting individually with Administrator Furler in January to
discuss the reorganization, though no two supervisors were present at
the same time when these discussions occurred.
On February 4, the board passed a resolution at an open meeting
appointing Supervisor Wilson to review the county workforce “to
determine if restructuring and/or reorganization [was] necessary to
improve efficiencies and services provided to Warren County residents.”
Supervisor Wilson was not present at the meeting because he was in
Mexico. Nonetheless, Supervisors Shull and Yordi approved the
resolution appointing Supervisor Wilson to review the reorganization
issue, as Supervisor Wilson had already agreed in advance to undertake
the task by conveying his assent to the other supervisors through
Administrator Furler. The resolution appointing Supervisor Wilson to
review the possibility of reorganizing the county government passed
without meaningful discussion. Supervisor Wilson remained in Mexico
for the rest of the month, however, and he delegated his duties under the
resolution to Administrator Furler.
7
While Supervisor Wilson was away, Administrator Furler began the
task of performing research and all the legwork associated with the
reorganization. From the start and throughout the entire process, she
consulted with the board’s attorney, Michael Galloway. At trial,
Administrator Furler claimed she performed her research regarding the
reorganization mostly in March, but she admitted that she identified
every employee who was eventually recommended for elimination in
February. Evidence admitted at trial revealed that she also began
working out the terms of the severance packages ultimately offered to the
employees around the same time. Her handwritten notes show that she
considered recommending each eliminated employee receive a severance
package consisting of one week of pay for every three years of service and
four months of health insurance. She also created a spreadsheet listing
employees by their initials alongside their dates of hire, hourly rates, and
health insurance costs to determine the cost of offering each eliminated
employee a severance package consisting of one week of pay for every two
years of service and six months of health insurance. Also during the
month of February, Administrator Furler had lengthy discussions about
the reorganization plans with her friend Frank Bonnett, former Indianola
police chief and labor consultant. Administrator Furler had also begun
having detailed conversations about how best to accomplish the
reorganization with Supervisor Shull, including a few conversations
during which Bonnett was present.
Upon Supervisor Wilson’s return from Mexico in March, he met
several times with Administrator Furler to discuss the work she had
performed in his absence on the reorganization plan. Administrator
Furler reduced her recommendations to writing with the help of Bonnett,
whom she had formally retained to determine whether the county could
8
realize cost savings while continuing to provide the same level of service
to county residents. Administrator Furler and Bonnett prepared a
written report together and revised it around one hundred times. That
written report came to be known as the Bonnett report. In the process of
writing and revising the Bonnett report, Administrator Furler placed
separate calls to Supervisors Shull and Wilson to get their opinions with
respect to various issues discussed therein. However, testimony at trial
did not establish how many such calls she made or how close in time
they occurred.
On separate occasions during the period following Supervisor
Wilson’s return from Mexico, Administrator Furler discussed the
reorganization plans and the Bonnett report with the individual
supervisors. Administrator Furler and Bonnett met with Galloway, the
board’s attorney, and Supervisors Shull and Wilson. Administrator
Furler also met with Supervisor Yordi. During these discussions,
Administrator Furler allowed the individual supervisors to voice their
thoughts and concerns on various topics. She then reported those
thoughts and concerns to the other supervisors.
By this process, the board reached a compromise on which
positions to eliminate. Supervisor Shull did not want to eliminate the
board secretary position, and he voiced his concerns to Administrator
Furler, who in turn shared them with Supervisors Yordi and Wilson.
Supervisors Yordi and Wilson objected to retaining the board secretary
position, however, because the board secretary and Supervisor Shull
were friends and they did not want the public to perceive the board as
playing favorites. When Administrator Furler reported their objections to
Supervisor Shull, he agreed to compromise by eliminating the board
secretary position.
9
Administrator Furler had similar conversations with the individual
supervisors regarding other topics relevant to the reorganization,
including the terms of the severance packages to be offered to employees
in the positions being eliminated. At the end of each meeting
Administrator Furler had with an individual supervisor, she would find
out whether that supervisor was going to approve whatever aspect of the
reorganization plan they had discussed during that particular meeting.
Administrator Furler and the supervisors held all these meetings in
private and without posting advance notice to the public.
At some point between March 13 and March 24, Administrator
Furler distributed the final draft of the Bonnett report to the supervisors
for review and confirmed with each supervisor that he intended to
approve the plan described therein. The final draft recommended
eliminating the maintenance department, the payroll department, and
the positions held by the board secretary, the zoning director, an
assistant engineer, and an engineering technician. It further
recommended contracting out the maintenance, payroll, and land-
surveying functions associated with the eliminated positions. With
Galloway’s help, Administrator Furler drafted letters and severance
agreements for the employees targeted for elimination. She showed
samples of the proposed severance agreements to the individual
supervisors and confirmed with each that he would approve the terms
appearing therein. Again, Administrator Furler and the supervisors held
these meetings outside of the public view.
On March 25 and 26, Administrator Furler, Supervisor Wilson, and
Galloway met with employees whose positions the Bonnett report
recommended for elimination. They gave each employee a letter stating
the following on official board letterhead:
10
Warren County is implementing a re-structuring of job
responsibilities and duties in several departments effective
March 26, 2014. Your position is being recommended for
elimination. In lieu of a layoff, we are offering a severance
package that must be approved by the Board of Supervisors.
The county is willing to provide a severance agreement
to you of 1 week of pay for every 2 years of service plus six
months health insurance coverage. In addition, you will be
placed on paid administrative leave for 21 days to review the
resignation/severance agreement. It is recommended you
have a legal professional review the agreement.
The county thanks you for your service and believes
the changes will create a more efficient and streamlined
county government.
Only Supervisor Wilson’s name and title appeared at the bottom of each
letter.
In addition to a letter from Supervisor Wilson, each employee
received a “Resignation of Employment and Release Agreement.” The
agreements provided that, in return for resigning from employment and
releasing any claims they might have against the county, the employees
would receive severance pay under the terms described in the letters,
continued insurance coverage through October 31, and paid
administrative leave until April 16. Administrator Furler and Galloway
orally advised the employees the county was placing them on paid
administrative leave for twenty-one days and their positions had been
recommended for elimination by the board. According to Administrator
Furler, Galloway also conveyed to the employees his confidence, based
on his conversations with the supervisors, that the supervisors would
accept those recommendations. The employees were sent home with
their personal belongings and were not permitted to finish their shifts.
Word of the reorganization quickly spread among the county’s
other elected officials. On March 26, the other elected officials met with
Supervisor Shull and Administrator Furler to find out how the county
11
would provide residents with necessary services going forward and why
the board had not notified them of any potential problems with the
county budget. The elected officials suggested that perhaps they could
have helped the supervisors avoid the layoffs had the board advised them
of the situation. Administrator Furler responded by explaining that the
supervisors could not talk to anybody about the reorganization and
needed everything to be kept quiet. Supervisor Shull portrayed the
layoffs as something the county had to do. Despite the officials’ concerns
about continuity of services for county residents, within days outside
vendors were handling the payroll and maintenance duties previously
performed by employees in the eliminated positions.
On April 16, six employees filed suit against the board, the county,
and the individual supervisors, claiming the board’s actions violated the
open meetings law and seeking injunctive and other remedies. Two days
after the employees filed suit, the board held an open meeting on
April 18. The agenda appearing on the “special meeting notice” the
board posted prior to the meeting listed two items: (1) “Consider
Recommendation of Re-organization and Approval of Reduction-in-Force”
and (2) “Consideration and Action on Severance Agreements.”
The open meeting on April 18 lasted approximately twenty
minutes. Minutes before it began, Administrator Furler placed copies of
the Bonnett report, which had not previously been released to the public,
on a table at the back of the room. She also gave a copy to each
supervisor and the county auditor. Once the meeting began,
Administrator Furler spoke briefly from notes she prepared in advance
about the severance packages offered to the employees in the eliminated
positions, noting that five employees had opted to sign resignation
agreements and six employees had not. Galloway then made a short
12
presentation contending the board had complied with the open meetings
law.
Without discussion, the supervisors unanimously passed two
resolutions at the open meeting. The first resolution approved the
recommendations contained in the Bonnett report. The second
resolution approved the severance agreements signed by five of the
employees whose positions the county had eliminated. The board did not
allow any public comments.
On May 5, the county issued COBRA notices to the employees who
elected not to sign the resignation agreements. The notices listed
“termination” as the employees’ COBRA-qualifying event and listed the
date that event had occurred as April 16, even though the board did not
actually vote to approve the terminations at an open meeting until
April 18.
The district court tried the case in July. The judge declined to
award relief to the terminated employees, finding the employees failed to
prove by a preponderance of the evidence that a majority of the board
deliberated about the reorganization in violation of the open meetings
law.
The district court first addressed the employees’ allegations that a
majority of the supervisors deliberated the reorganization during closed-
door, in-person gatherings witnessed by the board secretary. Former
board secretary Shelly Vander Tuig testified at trial that several closed-
door meetings took place between a majority of the supervisors and
Administrator Furler in January and February 2014. The court pointed
out that on cross-examination, Vander Tuig admitted she was not
present at those gatherings and was never told what was discussed
during them. In addition, Administrator Furler and the supervisors all
13
denied a majority of the supervisors had ever met to discuss county
business and understood their doing so would have constituted a
violation of the open meetings law. The court consequently found the
employees failed to prove by a preponderance of the evidence that a
majority of the board deliberated about the reorganization in person
during those closed-door gatherings.
The district court next addressed the question of whether the
supervisors violated the open meetings law by using Administrator Furler
as a conduit to deliberate the details of the reorganization. The court
concluded the evidence established the supervisors deliberated the
reorganization through Administrator Furler, rejecting the notion that
the board distributed the severance agreements before the supervisors
engaged in discussions and evaluative processes in arriving at a decision
or policy.
The district court then turned to the question of whether the
evidence established a gathering of a majority of the board triggered the
requirements of openness and public notice under the open meetings
law. Interpreting Iowa Code section 21.2(2), the district court found the
supervisors did not violate the open meetings law by using a third party
to deliberate the reorganization because a majority of the supervisors did
not gather as required by the definition of meeting in the Code.
The employees appeal.
II. Issues.
Neither party appealed the district court finding that the evidence
established the supervisors deliberated the details of the reorganization
through Administrator Furler. Therefore, we do not address that issue in
this opinion. Rather, we address the following issues in this appeal.
First, whether substantial evidence supports the district court finding
14
that a majority of the supervisors never deliberated the reorganization
during the closed-door, in-person gatherings observed by the board
secretary. Second, whether the district court correctly interpreted
section 21.2(2) when it concluded the gatherings attended by the
individual supervisors and the county administrator did not constitute
gatherings of a majority of the members of the board.
III. Scope of Review.
Actions to enforce the open meetings law are ordinary, not
equitable, actions. Schumacher v. Lisbon Sch. Bd., 582 N.W.2d 183, 185
(Iowa 1998). In such actions, we accord a trial court’s factual findings
the same degree of deference we accord a jury’s special verdict. See Iowa
R. App. P. 6.907. Thus, factual findings by the trial court are binding if
substantial evidence supports them. See Schumacher, 582 N.W.2d at
185; Tel. Herald, Inc. v. City of Dubuque, 297 N.W.2d 529, 533 (Iowa
1980). Substantial evidence supports a factual finding when the finding
“may be reasonably inferred from the evidence presented.” Vaughan v.
Must, Inc., 542 N.W.2d 533, 538 (Iowa 1996).
Additionally, this appeal requires us to construe the Iowa open
meetings law. See Iowa Code §§ 21.2(2), .3. We review questions of
statutory construction for correction of errors at law. Estate of Ryan v.
Heritage Trails Assocs., Inc., 745 N.W.2d 724, 728 (Iowa 2008).
IV. Whether Substantial Evidence Supports the District Court
Finding that a Majority of the Supervisors Never Deliberated the
Reorganization During Closed-Door, In-Person Gatherings Witnessed
by the Former Board Secretary.
The district court implicitly found that any closed-door, in-person
gatherings of a majority of the supervisors the board secretary witnessed
were not meetings because they did not involve deliberation or action
upon matters within the scope of the board’s policy-making authority.
15
See Iowa Code § 21.2(2). When reviewing a claim that substantial
evidence does not support a district court finding, we are required to view
the evidence in the light most favorable to the judgment and liberally
construe the court’s findings to uphold, rather than defeat, the result
reached. State v. Dohlman, 725 N.W.2d 428, 430 (Iowa 2006). Evidence
supporting a district court finding is not insubstantial merely because we
may draw a different conclusion from it. Iowa Beta Chapter of Phi Delta
Theta Fraternity v. State, 763 N.W.2d 250, 257 (Iowa 2009). The crucial
question in determining whether substantial evidence supports a district
court finding is not whether the evidence would support a different
finding, but whether the evidence supports the finding actually made.
Id.At trial, former board secretary Vander Tuig testified she observed
a majority of the board attend closed-door, in-person gatherings on
numerous occasions in the board offices in January and February 2014.
Hers was the only eyewitness testimony offered in support of the
employees’ claim that the supervisors deliberated the reorganization
during closed-door, in-person gatherings at which a majority of the
supervisors were physically present. But as the district court observed,
Vander Tuig admitted she had no first- or second-hand knowledge
regarding the subject matter of the discussions taking place during any
closed-door, in-person gatherings. She admitted she never heard what
the supervisors discussed, nor did anyone tell her what the supervisors
discussed after the fact.
The supervisors and the county administrator—the individuals
alleged to have been present during the improper closed-door
deliberations—testified they understood the open meetings law and had
developed an elaborate methodology of communicating with each other
16
through Administrator Furler in order to avoid triggering the open
meetings requirements. Furthermore, they all denied any discussion of
board business occurred in any closed meeting attended by a majority of
the supervisors.
The district court weighed the testimony of the former board
secretary against the testimony of the supervisors and the county
administrator, credited the latter, and found the supervisors never
deliberated the reorganization during any closed-door, in-person
meetings the board secretary witnessed. As the finder of fact, weighing
the proffered testimony and determining its credibility was the district
court’s duty. Second Injury Fund v. Braden, 459 N.W.2d 467, 471 (Iowa
1990). Although the district court might have made a different
determination, substantial evidence supports the determination it made.
Therefore, we affirm the district court finding that a majority of the
supervisors never deliberated the reorganization during any closed-door,
in-person gathering witnessed by the former board secretary.
V. Whether the District Court Correctly Concluded the Serial
Gatherings Attended by the Individual Supervisors and the County
Administrator Did Not Constitute a “Gathering . . . of a Majority of
the Members” of the Board Under Iowa Code Section 21.2(2).
This case requires us to interpret the definition of “meeting”
contained in section 21.2(2) of the Code. It provides,
“Meeting” means 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.
Iowa Code § 21.2(2).
17
The district court found the board of supervisors deliberated
various details of the reorganization of the county government through
Administrator Furler. Neither party appealed this finding. It is also
uncontested that the reorganization of county government is a matter
within the scope of the board’s policy-making duties. Thus, these
aspects of the definition in section 21.2(2) are not at issue in this appeal.
Instead, at issue is the meaning of the phrase “a gathering in person or
by electronic means, formal or informal, of a majority of the members of
a governmental body.” Id.The supervisors argue a gathering within the meaning of section
21.2(2) occurs only when a majority of the members of a governmental
body personally assemble in close temporal proximity. In contrast, the
employees contend that in order to reach a solid consensus on the
reorganization plan the supervisors necessarily had to gather in order to
deliberate as a body. The amici curiae contend Administrator Furler
acted as each supervisor’s agent by conveying his thoughts and opinions
to the other supervisors. Thus, they contend each gathering between
Administrator Furler and an individual supervisor was the legal
equivalent of a gathering between two or three supervisors.
When interpreting a statute, our goal is to determine legislative
intent. Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa
2004). Before resorting to rules of statutory construction, we determine
whether the language chosen by the legislature is ambiguous. Zimmer v.
Vander Waal, 780 N.W.2d 730, 733 (Iowa 2010). A statute is ambiguous
if reasonable persons can disagree on its meaning. State v. Wiederien,
709 N.W.2d 538, 541 (Iowa 2006). Ambiguity may arise regarding the
meaning of particular words or the general scope and meaning of a
statute. Holiday Inns Franchising, Inc. v. Branstad, 537 N.W.2d 724, 728
18
(Iowa 1995). In addition, “when a literal interpretation of a statute
results in absurd consequences that undermine the clear purpose of the
statute, an ambiguity arises.” Sherwin-Williams Co. v. Iowa Dep’t of
Revenue, 789 N.W.2d 417, 427 n.8 (Iowa 2010). We interpret statutes to
reflect common law principles existing at the time of their enactment
unless the language the legislature chose specifically negates the
common law. State v. Dullard, 668 N.W.2d 585, 595 (Iowa 2003).
Regarding the purpose of the open meetings law contained in
chapter 21 of the Iowa Code, the legislature has indicated,
This chapter 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.
Ambiguity in the construction or application of this chapter
should be resolved in favor of openness.
Iowa Code § 21.1. Our caselaw affirms this legislative intent. See, e.g.,
Tel. Herald, 297 N.W.2d at 532.
In Telegraph Herald, we recognized the “legislature’s apparent
intent that temporal proximity exist among members of the governmental
body” in order for a “meeting” subject to the open meetings requirements
to take place. Id. at 534. However, the question we faced in that case is
distinguishable from the question we face in this case. In the former, we
considered whether an open meetings violation occurred when members
of a city council interviewed applicants for the position of city manager
during a series of gatherings at which less than a majority of the council
members were present at various times and places. Id. at 531–34. The
specific theory we considered was whether serial submajority gatherings
could constitute an informal meeting to which the open meetings law
applies. Id. at 532–34.
19
We concluded the serial submajority gatherings did not violate the
open meetings law because they did not constitute gatherings to which
open meetings requirements applied for two reasons. First, the council
members obviously did not deliberate regarding whom they would
actually hire during the interviews. 1 Id. at 532–33. Second, in
interpreting section 21.2(2), we concluded that in order for serial
submajority gatherings to collectively constitute a meeting of the majority
of a governmental body and trigger the open meetings requirements, a
majority of the members must deliberate in temporal proximity to each
other. Id. at 533–34. Because there was no demonstration of temporal
proximity among the gatherings at which the interviews took place, we
concluded they did not trigger the open meetings requirements. See id.Our resolution to the question we faced in Telegraph Herald does
not answer the question we face in this case. First, in this case, there is
no question that the board members collectively deliberated during the
meetings between the individual board members and the county
administrator. As previously noted, the district court found that they
did, and the parties do not dispute that finding. Second, the employees
do not claim the open meetings requirements were triggered by serial
submajority gatherings or assert that serial meetings attended by the
1Deliberation generally involves “discussion and evaluative processes in arriving
at a decision or policy.” Hettinga v. Dallas Cty. Bd. of Adjustment, 375 N.W.2d 293, 295
(Iowa Ct. App. 1985) (quoting 1979 Op. Iowa Att’y Gen. 164, 166, 1979 WL 21166, at
*3). Although 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, 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. (quoting
Op. Iowa Att’y Gen. No. 81–7–4(L) (July 6, 1981), 1981 WL 178383, at *6).
20
individual board members collectively constituted a meeting within the
meaning of the statute.
Rather, the employees claim the open meetings requirements were
triggered when a majority of the board intentionally deliberated the
reorganization using the county administrator as their conduit because
doing so was legally equivalent to deliberating the reorganization during
a gathering at which a majority of the board was personally present. In
other words, they contend each meeting between an individual board
member and the county administrator during which the administrator
deliberated the reorganization plan at the behest of another board
member legally constituted an informal in-person gathering of a majority
of the board involving deliberation concerning matters within the scope
of the board’s policy-making duties. 2 See Iowa Code § 21.2(2). If the
employees’ interpretation of section 21.2(2) is correct, each gathering
attended by a board member and the county administrator during which
the administrator deliberated the reorganization while acting on behalf of
another board member legally constituted a meeting to which the open
meetings law applied. The first board member was physically present in
person, and the second board member was physically present by virtue
of the county administrator acting as his agent. We have yet to address
this scenario under our open meetings law.
Were we to assume the legislature was unfamiliar with agency
principles when it enacted the open meetings law, we might construe the
term “gathering” narrowly to conclude the open meetings requirements
2The Warren County Board of Supervisors is a three-person board. Thus, a
majority of the board deliberates whenever two members of the board engage in
“discussion and evaluative processes in arriving at a decision or policy.” Hettinga, 375
N.W.2d at 295 (quoting 1979 Op. Iowa Att’y Gen. at 166, 1979 WL 21166, at *3).
21
apply only to face-to-face deliberations during which a majority of the
members of a governmental body are personally physically present and
to electronic or serial submajority deliberations among a majority of
members occurring in close temporal proximity. However, such a narrow
construction of the term would clearly be at odds with the intended scope
and purpose of our open meetings law “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.” See id. § 21.1. Adopting the interpretation of
section 21.2(2) urged by the board and its members would result in
absurd consequences undermining the clear purpose of the open
meetings law. We therefore conclude the statute is ambiguous with
respect to the question of whether governmental bodies may utilize
agents to deliberate on their behalf without triggering the open meetings
requirements. See Sherwin-Williams, 789 N.W.2d at 427. 3
3The district court and the board note our legislature twice considered, but
failed to pass, proposed bills that would have amended section 21.2(2) to address serial
submajority gatherings. Specifically, the legislature failed to pass two bills that each
proposed amending section 21.2(2) to add the following sentence:
A meeting includes a series of gatherings of members who constitute less
than a majority of the members at each gathering, but who collectively
constitute a majority of the members, where the series of gatherings
includes deliberation or action upon any matter within the scope of the
governmental body’s policy-making duties.
See S.F. 282, 83rd G.A., 1st Sess. § 6 (Iowa 2009); H.F. 372, 81st G.A., 1st Sess. § 1
(Iowa 2005). Relying on the legislature’s failure to amend section 21.2(2), the board
accuses the employees of asking this court to legislate from the bench and change the
definition of meeting in a way the legislature was unwilling to do. Essentially, the board
seeks to rely on the presumption that legislative silence signals acquiescence in an
existing interpretation of a statute. See Gen. Mortg. Corp. v. Campbell, 258 Iowa 143,
152, 138 N.W.2d 416, 421 (1965). However, the legislature’s failure to pass proposed
bills addressing serial submajority gatherings is irrelevant to the question of whether a
member of a governmental body may use an agent to deliberate on his or her behalf in
order to avoid triggering the open meetings requirements.
22
We believe resolving this ambiguity requires us to consider whether
the common law of agency influences the proper interpretation of section
21.2(2). The legislature clearly instructed that ambiguities arising in
construing the open meetings law should be resolved in favor of
openness. Iowa Code § 21.1. We also recognize that well-settled
common law principles predating the enactment of a statute may be
instructive in clarifying the ambiguities arising when we interpret it. See
State v. McIver, 858 N.W.2d 699, 704 (Iowa 2015) (citing 2A Norman J.
Singer & Shambie Singer, Statutes and Statutory Construction § 45:2, at
16–17 (7th ed. rev. 2014)); see also Dullard, 668 N.W.2d at 595. The
legislature generally anticipates that courts will turn to the common law
to resolve statutory ambiguities in statutory text. In fact, the legislature
has instructed us to do precisely that. See Iowa Code § 4.6(4).
Accordingly, because the concept of agency predates the enactment of
the open meetings law and accounting for that concept in construing the
open meetings law is consistent with the object the legislature sought to
attain by its enactment, we conclude agency principles are relevant in
the context of applying section 21.2(2).
We have long recognized the general principle that members of a
public board “may authorize performance of ministerial or administrative
functions” but cannot delegate “matters of judgment and discretion.”
Bunger v. Iowa High Sch. Athletic Ass’n, 197 N.W.2d 555, 559–60 (Iowa
1972). The open meetings statute reflects the reality that deliberation
upon matters of public policy involves judgment and discretion. See
Iowa Code § 21.2(2). Thus, our conclusion that public bodies cannot use
agents to deliberate matters of public policy without triggering the open
meetings law is consistent with this principle. In contrast, were we to
reach the opposite conclusion, we would encourage members of
23
governmental bodies to enlist agents to deliberate matters of public
policy on their behalf outside the public view in order to purposefully
evade the open meetings law.
Because we conclude agency principles are relevant to determining
whether a gathering satisfies the statutory definition of meeting in
section 21.2(2), we conclude the legal equivalent of an in-person
gathering of a majority of the members of a public body takes place
whenever a majority of the members of a governmental body meet,
whether each member attends personally or through an agent. See, e.g.,
Andrews v. Young Men’s Christian Ass’n of Des Moines, 226 Iowa 374,
380, 284 N.W. 186, 190 (1939) (“He who acts through another acts by
and for himself.”). Indeed, the concept of agency is so fundamental to
the common law that some courts have assumed a gathering personally
attended by fewer public officials than is required to satisfy a statutory
definition of “meeting” may nonetheless constitute a meeting whenever a
sufficient number of public officials attend the gathering by virtue of
their agents. Claxton Enter. v. Evans Cty. Bd. of Comm’rs, 549 S.E.2d
830, 834–35 (Ga. Ct. App. 2001) (stating that “a meeting is required to be
open only when a quorum of a governing body or its agents have
gathered” though the statute defined “meeting” as “the gathering of a
quorum of the members of the governing body of an agency or of any
committee . . . at a designated time and place . . . at which official action
is to be taken” (quoting Ga. Code Ann. § 50-14-1(a)(2) (1999)); State ex
rel. Newspapers, Inc. v. Showers, 398 N.W.2d 154, 164–65 (Wis. 1987)
(“Common sense also tells us . . . that if proxies are present so as to
realistically make-up a majority, the Open Meeting Law applies.”).
Generally, an agency relationship exists when an agent has actual
or apparent authority to act on behalf of a principal and both principal
24
and agent have mutually manifested assent to create it. 4 See Soults
Farms, Inc. v. Schafer, 797 N.W.2d 92, 100 (Iowa 2011); C & J Vantage
Leasing Co. v. Wolfe, 795 N.W.2d 65, 79 (Iowa 2011). Actual authority
exists when a principal has expressly or by implication granted an agent
authority to act on his or her behalf. Soults Farms, 797 N.W.2d at 102.
A party may prove a principal granted an agent actual authority to act on
his or her behalf by circumstantial evidence. Id. Manifestations of
assent include written or spoken words or other conduct and may be
inferred from surrounding facts and circumstances. Id. at 101. For
example, an agent may manifest assent merely by performing actions he
or she has been empowered by the principal to perform or carrying out
actions that objectively benefit the principal. Id. “The party asserting an
agency relationship must prove its existence by a preponderance of the
evidence.” Id. at 100.
Here, the record amply supports the district court finding that the
supervisors intentionally developed a “sophisticated methodology of
communicating effectively with one another” about county business
outside the public view “by using Administrator Furler as a conduit.” As
the district court found, the record shows Administrator Furler and the
supervisors understood that it would trigger the open meetings
requirements if two or more supervisors met in person to discuss the
reorganization or other county business. Thus, the record clearly
supports the district court’s conclusion that the supervisors deliberately
used Administrator Furler to flesh out the details of the reorganization
4We have never considered whether agency may exist by virtue of apparent
authority in the municipal government context, but we need not address that issue in
this case. See Dillon v. City of Davenport, 366 N.W.2d 918, 923 (Iowa 1985) (declining to
reach the apparent authority issue).
25
plan and resolve conflicts among themselves about how best to
accomplish the reorganization outside the public view.
The record also supports the district court finding that the
supervisors used Administrator Furler to deliberate the reorganization
plan in that manner because they knew the plan would be controversial
and anticipated conflict and discomfort would result if they discussed it
in a public forum. As the testimony recounted at length by the district
court clearly demonstrates, the supervisors actively avoided discussing
the reorganization in public meetings by having Administrator Furler
meet with them individually to gather and convey information they
intentionally shared with her in order to allow her to facilitate their
communication with each other. By this method, the supervisors
compromised regarding key details of the reorganization plan, including
which positions to eliminate and the terms of the severance packages to
be offered to eliminated employees.
Substantial evidence supports the findings by the district court.
See Vaughan, 542 N.W.2d at 538. Using Administrator Furler to conduct
shuttle diplomacy and deliberate county business worked so well for the
supervisors, they managed to implement the restructuring of the county
government without deliberating a single detail of the reorganization plan
during a public meeting.
Although we agree with the district court’s assessment of the facts,
the court made a legal error in interpreting section 21.2(2).
Consequently, it did not apply agency principles in determining whether
the actions of the supervisors and the county administrator violated the
open meetings law. The employees urge us to conclude the district court
implicitly found the administrator acted as an agent of one or more
supervisors in conducting shuttle diplomacy among them on their behalf.
26
After all, if the administrator never acted as an agent of one or more of
the supervisors during any of her conversations with the other
supervisors, how could the supervisors have deliberated every detail of
the reorganization plan and implemented it prior to the public meeting?
We would be well within our power to find an agency relationship
existed on a de novo review. However, in this appeal we review the
district court’s ruling for correction of errors at law. Because the district
court erroneously interpreted section 21.2(2) and did not make the
factual findings necessary to determine whether the gatherings attended
by the individual supervisors and the county administrator constituted
meetings subject to the open meetings requirements under a proper
interpretation of the statute, we must remand the case to the district
court.
On remand, the district court should determine the nature and
extent of the actual authority the supervisors granted Administrator
Furler when they intentionally used her to deliberate the reorganization
plan outside the public view in an attempt to avoid triggering the open
meetings requirements. See Mayrath Co. v. Helgeson, 258 Iowa 543,
547, 139 N.W.2d 303, 305–06 (1966) (acknowledging that “usually the
nature and extent of the authority of an agent, and whether his acts . . .
are within the scope of his authority, are questions of fact”). If the court
finds an agency relationship existed and Administrator Furler acted
within the scope of her authority in helping the supervisors to deliberate
the details of reorganization, it should apply section 21.2(2) in
accordance with this opinion to conclude that a violation of the open
meetings law occurred.
The board argues we should not interpret section 21.2(2) in this
manner because treating public employees as the agents of public
27
officials would in effect prohibit communication between employees and
elected officials outside public meetings. We disagree. The open
meetings law permits members of a governmental body to discuss with
its employees matters concerning its operation.
In Telegraph Herald, we rejected the contention that a prohibited
closed meeting occurs any time a member of a governmental body
discusses government business with another individual. 297 N.W.2d at
534. In doing so, we concluded,
The composite rationale which may be distilled from [judicial
decisions addressing open meetings laws] is that such laws
do not prohibit gatherings of less than a majority of the
governing body where decisions are not made and official
actions are not taken and that the right of free speech might
be violated by a law forbidding any discussion by public
officers between meetings. Activities of a governmental
body’s individual members to secure information to be
reported and acted upon at an open meeting ordinarily do
not violate sunshine statutes. Any other rule would
hamstring the progress of governmental bodies, and impose
intolerable time burdens on unpaid officeholders.
Id. at 533–34 (footnote omitted).
If the individual board members and the county administrator had
gathered merely for the purpose of gathering information or discussing
the various options available to the board in implementing the
reorganization or achieving government efficiency, a meeting under
section 21.2(2) would not have occurred. However, the district court
found much more than general discussion or information exchange took
place. The district court expressly found the supervisors intentionally
used the county administrator to deliberate concerning matters of public
policy by having her engage in “discussion and evaluative processes in
arriving at a decision.” See Hettinga v. Dallas Cty. Bd. of Adjustment, 375
28
N.W.2d 293, 295 (Iowa Ct. App. 1985) (quoting 1997 Op. Iowa Att’y Gen.
164, 166, 1979 WL 21166, at *3).
In fact, the supervisors concede they intentionally used the county
administrator to facilitate discussion amongst themselves concerning
various aspects of the reorganization and to negotiate an agreement
concerning the precise details of the reorganization plan, as evidenced by
the fact that the board never discussed the plan at an open meeting
before they actually implemented it. The legislature clearly intended
public bodies subject to the open meetings law to deliberate the basis
and rationale for important decisions such as these, as well as the
decisions themselves, during open meetings. Iowa Code § 21.1.
Thus, we conclude district courts must apply agency principles in
determining whether an in-person gathering satisfies the statutory
definition of meeting in section 21.2(2). Accordingly, the open meetings
requirements apply to all in-person gatherings at which there is
deliberation upon any matter within the scope of the policy-making
duties of a governmental body by a majority of its members, including in-
person gatherings attended by members of a governmental body through
agents or proxies.
VI. Conclusion and Disposition.
In summary, the open meetings law does not prohibit discussions
between members of a governmental body and its staff to exchange ideas
and gather information in order for the body to act upon an issue during
an open meeting. However, the open meetings law does prohibit the
majority of a governmental body gathering in person through the use of
agents or proxies to deliberate any matter within the scope of its policy-
making duties outside the public view. The open meetings law is
29
intended to safeguard free and open democracy by ensuring the
government does not unnecessarily conduct its business in secret.
Because the district court incorrectly interpreted section 21.2(2) in
applying the open meetings law, we reverse its judgment and remand the
case. On remand, the district court should make the necessary factual
findings and apply the proper interpretation of the statute in a manner
consistent with this opinion.
If the district court finds the supervisors acted through an agent
when they deliberated the reorganization, the district court should grant
the employees appropriate relief. We are aware Iowa Code section
21.6(3)(c) allows the district court to void any action taken by the board if
the “the court finds under the facts of the particular case that the public
interest in the enforcement of the policy of [chapter 21] outweighs the
public interest in sustaining the validity of the action taken in the closed
session.” However, in considering what relief is appropriate under the
circumstances of this case, the court should note that the board
eventually approved the reorganization plan at an open meeting and
should consider whether this subsequent approval complied with the
open meetings requirements and cured any violation of the open
meetings law. See Valley Realty & Dev., Inc. v. Town of Hartford, 685
A.2d 292, 296 (Vt. 1996) (holding a land purchase made in violation of
an open meetings law should not be voided because its ratification in a
subsequent meeting complying with open meetings requirements cured
the violation of the open meetings law).
REVERSED AND REMANDED WITH DIRECTIONS.
Cady, C.J., Hecht and Appel, JJ., join this opinion. Waterman, J.,
files a dissenting opinion in which Mansfield and Zager, JJ., join.
Mansfield, J., files a separate dissenting opinion in which Waterman and
Zager, JJ., join.
30
#14–1649, Hutchison v. Shull
WATERMAN, Justice (dissenting).
I respectfully dissent. I would affirm the well-reasoned district
court decision that correctly applied the plain language of Iowa Code
section 21.2(2) (2013) and our precedent. The majority opinion today
replaces a clear, easy-to-follow rule with a vague standard that will invite
costly litigation and deter diligent public officials from conferring with
administrators to prepare for public meetings. The majority adopts a
new agency theory at odds with Iowa municipal law and never adopted
by any other appellate court. This agency theory treats an unelected
administrator as an elected county supervisor in order to find the
“majority” required to trigger the open meetings law. This untested and
novel agency theory was not raised by plaintiffs in district court or on
appeal. We should not change the rules after the game is played and
then allow a retrial on a theory that was not preserved.
The majority also gratuitously suggests that actions taken at
improper closed meetings can simply be ratified at an open meeting.
Those dicta may undermine an important statutory remedy that deters
violations of the open meetings law—a judicial declaration that the action
taken behind closed doors is void. Ironically, the majority’s goal of
furthering transparency in local government actions could have the
opposite effect.
I agree with the majority that substantial evidence supports the
district court’s finding that the individual Warren County supervisors
“deliberated” about the challenged reorganization through serial private
one-on-one meetings with Administrator Furler acting as a “conduit” who
relayed messages between supervisors. Based on the documents
executed before the public meeting, the details of the reorganization were
31
approved and finalized privately subject to ratification at the public
meeting. But the district court correctly concluded the supervisors did
not violate the open meetings law because a majority of the supervisors
never gathered in person as required by the statutory definition, which
provides:
“Meeting” means 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.
Iowa Code § 21.2(2) (second emphasis added). It is undisputed that the
supervisors took no binding vote on the reorganization until the public
meeting.
The majority acknowledges “our legislature twice considered, but
failed to pass, proposed bills that would have amended section 21.2(2) to
address serial submajority gatherings.” Yet, the majority effectively
rewrites the statutory definition of “meeting” to prohibit informal
practices that the legislature has allowed to continue since our
unanimous decision thirty-five years ago in Telegraph Herald, Inc. v City
of Dubuque, 297 N.W.2d 529, 533–34 (Iowa 1980) (interpreting the
statute to allow private in-person gatherings of less than a majority).
I would defer to the elected branches to redefine the requirements
of the open meetings law. That is their policy decision to make. The
Iowa legislature has clearly acquiesced in our interpretation of chapter
21 in Telegraph Herald. See Ackelson v. Manley Toy Direct, L.L.C., 832
N.W.2d 678, 688 (Iowa 2013) (“[W]e presume the legislature is aware of
our cases that interpret its statutes. When many years pass following
32
such a case without a legislative response, we assume the legislature has
acquiesced in our interpretation.” (Citation omitted.)).
Unfortunately, no amici curiae briefs were filed on behalf of the
Iowa State Association of Counties, the Iowa League of Cities, the Iowa
Association of School Boards, or the executive branch of state
government to address the practical problems that may result from the
majority’s new interpretation. Today’s decision can be and should be
limited to its facts—a fait accompli arranged behind closed doors. My
concern, however, is that the decision will have a chilling effect on well-
intentioned public officials who consider themselves duty-bound to get
up to speed on pending matters before public meetings. Let us consider
the dilemma now faced by public officials who want to do their homework
by sitting down with an administrator privately, rather than prolonging a
public meeting. May they continue to confer privately with staff or in
small groups? Or, if they do, could someone sue them for violating
chapter 21, putting their personal assets at risk for a judgment for
attorney fees? Chapter 21 provides that statutory penalties and attorney
fees may be imposed on elected officials personally unless they establish
a defense of reasonable good faith or reliance on a court opinion or
advice of counsel. See Iowa Code § 21.6(3) (providing remedies for
violations of chapter 21); City of Postville v. Upper Explorerland Reg’l
Planning Comm’n, 834 N.W.2d 1, 7 (Iowa 2013) (“Generally, Iowa law
makes members of governmental bodies subject to liability for [chapter
21] violations.”); cf. City of Riverdale v. Diercks, 806 N.W.2d 643, 654–59
(Iowa 2011) (discussing the good-faith defense to fee awards under the
Open Records Act, Iowa Code chapter 22). Elected officials always face
the consequences of unpopular or controversial decisions at the ballot
33
box. But potential personal liability for thousands of dollars in attorney
fees is a different matter.
In my view, we correctly interpreted section 21.2(2) over three
decades ago in Telegraph Herald. In that case, the local newspaper and
its publisher sued the City of Dubuque and individual members of the
city council, alleging that private interviews of applicants for the city
manager position violated the open meetings law. 297 N.W.2d at 531.
City council members alone or in pairs personally interviewed the seven
finalists behind closed doors. Id. The district court ruled that these
interviews did not violate the open meetings law “because less than the
majority of the council were present at each interview.” Id. at 532. We
affirmed, holding that “the legislature’s definition of ‘meeting’ . . .
requires a gathering (in person or by electronic means) of a majority of
the members of a governmental body.” Id. We noted “[t]he attorney
general ha[d] reached the same interpretation.” Id. at 533 n.1. We
expressly rejected the argument that the statute was violated by the
interviews conducted by less than a majority of the council. Id. at 534.
We noted the legislature required “that temporal proximity exist among
members of the governmental body” to constitute a “meeting.” Id.Today’s decision overrules that holding. I would honor stare decisis.
The majority purports to distinguish Telegraph Herald by stating,
“[T]he council members [in that case] obviously did not deliberate
regarding whom they would actually hire during the interviews.” We did
not say that in Telegraph Herald. Rather, we noted the “[t]rial court did
not find an intent to violate the act” and “concluded the council members
were, at all times, acting reasonably on their corporation counsel’s
advice.” Id. at 533. We also noted that the legislature’s definition of
meeting required both a gathering of a majority and deliberation. Id. at
34
532. We squarely held the statute is not violated when fewer than a
majority meet. Id. at 533. The district court correctly understood and
applied the statute and Telegraph Herald when it stated:
The definition of meeting in section 21.2(2) plainly
states that a gathering of the majority of the members of the
governmental body must occur. Telegraph Herald
interpreted the legislature’s definition as requiring temporal
proximity. Here, there is no proof of temporal proximity
among the Supervisors when they met with Administrator
Furler to discuss restructuring the County government. In
fact, it appears as though deliberate efforts were made to
insure that there was no temporal proximity among the
discussions between Administrator Furler and the individual
Supervisors. . . . Therefore, there was no “gathering (in
person or by electronic means) of a majority of the
members.” The Court is bound by the words chosen by the
legislature, not by what it thinks the legislature should have
said.
We applied Telegraph Herald in Wedergren v. Board of Directors,
307 N.W.2d 12, 18 (Iowa 1981). In that case, we addressed a
superintendent’s challenge to his termination by a school board. Id. at
15. He contended three members of the five-member school board
violated the open meetings law when they discussed his termination in
phone calls with each other. Id. at 18. We reiterated that “[t]he
legislature has decided to extend coverage of the law only to a gathering
of a majority of the members of a governmental body.” Id. We concluded
that phone calls between two members were not a meeting subject to the
requirements of chapter 21 and that “[t]he only possible violation of the
open meetings law occurred” when three members (a majority)
participated in a conference call to discuss the role of outside counsel in
the termination. Id. at 18–19. We thereby squarely rejected the theory
that serial meetings or discussions between fewer than a majority of the
board can violate the open meetings law. The majority reaches a
35
different result today without even acknowledging Wedergren. Again, I
would honor stare decisis.
We noted in Telegraph Herald that ambiguities in the open
meetings law are to be construed in favor of openness but concluded the
plain meaning of the statutory definition of “meeting” meant a gathering
of a majority of the council, not smaller groups. 297 N.W.2d at 532–33.
That interpretation is supported by dictionary definitions:
meeting, n. (14c) Parliamentary law. A single official
gathering of people to discuss or act on matters in which
they have a common interest; esp., the convening of a
deliberative assembly to transact business. ● A deliberative
assembly’s meeting begins with a call to order and continues
(aside from recesses) until the assembly adjourns.
Black’s Law Dictionary 1131 (10th ed. 2014). Webster’s Third New
International Dictionary defines “meeting” as “a gathering for business,
social, or other purposes.” Webster’s Third New International Dictionary
1404 (unabr. ed. 2002). “Gathering” is defined as “a coming together of
people in a group (as for social, religious, or political purposes).” Id. at
940. Dictionary definitions contradict the majority’s interpretation that a
meeting of a majority of supervisors could occur with only one supervisor
present. Importantly, the majority upholds the district court’s factual
finding that no two supervisors gathered in the same place at the same
time to deliberate about the reorganization in private. That factual
finding should be dispositive and forestalls the legal conclusion that
defendants violated the open meetings law.
The majority erroneously invokes the absurd results doctrine to
assert the statutory definition of “meeting” is ambiguous. We recently
and unanimously reiterated that the absurd results doctrine should be
used sparingly lest we contradict legislative intent expressed in plain
language:
36
Establishing absurdity in an unambiguous statute is difficult
for good reason. We have explained that “we will not ignore
clear legislative language merely because it leads to a result
that seems contrary to the court’s expectations.” The
express language must produce a result that is
“demonstrably at odds with the intention” of the legislature.
In re J.C., 857 N.W.2d 495, 503 (Iowa 2014) (citations omitted) (quoting
Sherwin-Williams Co. v. Iowa Dep’t of Revenue, 789 N.W.2d 417, 427,
429 (Iowa 2010)). And I find nothing absurd about limiting the open
meeting requirements to a gathering in person (or electronically) of a
majority of the elected officials, which provides a workable bright-line
rule that allows elected officials to prepare for open meetings in smaller
private groups.
Other jurisdictions resoundingly reject the majority’s
interpretation. As the majority notes, in our 1980 decision in Telegraph
Herald, we surveyed cases construing similar “sunshine laws” to
conclude such laws do not apply to gatherings of less than a majority.
297 N.W.2d at 533–34 (“Any other rule would hamstring the progress of
governmental bodies[] and impose intolerable time burdens on unpaid
officeholders.”). Courts continue to reach the same conclusion. See,
e.g., Slagle v. Ross, 125 So. 3d 117, 124 (Ala. 2012) (holding “a ‘meeting’
occurs when a majority of the members of a governmental body come
together at the same time” (emphasis added)); Del. Solid Waste Auth. v.
News-Journal Co., 480 A.2d 628, 635 (Del. 1984) (holding the Open
Records Act does not apply to standing committees because such a
meeting could not be a quorum under the statute); Dillman v. Trs. of Ind.
Univ., 848 N.E.2d 348, 351 (Ind. Ct. App. 2006) (holding that the plain
meaning of “meeting” requires a majority of people present at the same
time); Willems v. State, 325 P.3d 1204, 1209 (Mont. 2014) (“[T]he
definition of ‘meeting’ does not include ‘serial one-on-one discussions.’ ”);
37
City of Elkhorn v. City of Omaha, 725 N.W.2d 792, 806 (Neb. 2007)
(declining to apply open meetings law to nonquorum government
subgroups); Dewey v. Redevelopment Agency of Reno, 64 P.3d 1070,
1077–78 (Nev. 2003) (holding that “back-to-back briefings” by members
of a government agency did not “create[] a constructive quorum or serial
communication in violation of” Nevada’s open meeting law); Citizens
Alliance for Prop. Rights Legal Fund v. San Juan County, 359 P.3d 753,
762 (Wash. 2015) (en banc) (“We see no reason to depart from our long-
standing rule requiring the presence of a simple majority of a governing
body’s members—a rule that provides clear guidance to public agencies
regarding the application of the [open meetings act].”).
These appellate courts confront the practical problems our
majority opinion glosses over—that its interpretation will chill necessary
and appropriate private consultations by public officials that precede
open meetings. The Delaware Supreme Court noted the open meetings
law shows
a legislative recognition of a demarcation between the
public’s right of access and the practical necessity that
government must function on an orderly, but nonetheless
legitimate, basis. The legislature has thus recognized that
literal enforcement of the sunshine law at the standing
committee level could so disrupt the orderly function of the
Authority as to defeat the basic purposes for which it was
created. The gathering of information and the free exchange
of ideas should not be hampered at the outset, and thus
dampen a careful examination of potentially controversial
matters, before the Authority can even function. Certainly
this does not rise to the level of “closed door” government.
The public’s right of access at later stages in the
decisionmaking process, and its accompanying right to
question, is a strong safeguard that public servants remain
accountable to the citizens. Any interpretation of the Act
beyond its obvious purpose and intent could bring the
wheels of government to a halt.
38
Del. Solid Waste Auth., 480 A.2d at 635 (citation omitted). More recently,
the Nebraska Supreme Court aptly observed the open meetings law
does not require policymakers to remain ignorant of the
issues they must decide until the moment the public is
invited to comment on a proposed policy. The public would
be ill served by restricting policymakers from reflecting and
preparing to consider proposals, or from privately suggesting
alternatives. By excluding nonquorum subgroups from the
definition of a public body, the Legislature has balanced the
public’s need to be heard on matters of public policy with a
practical accommodation for a public body’s need for
information to conduct business.
City of Elkhorn, 725 N.W.2d at 806 (citation omitted). The majority
simply ignores these well-reasoned decisions.
We have never held that an administrator acting as an agent for a
board member can be counted to reach a majority that triggers the
requirements of chapter 21. Iowa law distinguishes between elected
supervisors and administrators employed by the county. I would not
count an unelected administrator as a stand-in for an elected supervisor
regardless of whether he or she is engaged in shuttle diplomacy between
supervisors. The majority’s new agency theory rests on a legal fiction
that treats the county administrator as a supervisor. The agency theory
conflicts with our precedent limiting the ability of supervisors to use
agents. As the majority recognizes, it is a general principle that public
board members “may authorize performance of ministerial or
administrative functions” but cannot delegate “matters of judgment and
discretion.” Bunger v. Iowa High Sch. Athletic Ass’n, 197 N.W.2d 555,
559–60 (Iowa 1972). The principle that an elected county supervisor
cannot delegate matters of judgment precludes the legal conclusion that
Administrator Furler, who is not a supervisor, could act as one.
Obviously, an administrator could not stand in for a supervisor to vote at
39
a public meeting. So how could she act as a supervisor privately to
trigger chapter 21? 5
The majority cites two open meetings cases in support of its agency
theory: Claxton Enterprise v. Evans County Board of Commissioners, 549
S.E.2d 830, 834–35 (Ga. Ct. App. 2001), and State ex rel. Newspapers,
Inc. v. Showers, 398 N.W.2d 154, 164–65 (Wis. 1987). Neither case
supports the majority. The reference to proxies in Showers is dicta
because the plaintiffs “conceded the four Commissioners did not have
the proxies of any other member of the Commission.” 398 N.W.2d at
157. The holding of Claxton Enterprise contradicts the majority’s
interpretation. See 549 S.E.2d at 835 (“Because this meeting occurred
between the county administrator and the commissioners individually,
5The majority’s agency theory not only is at odds with the nondelegation
principle noted in Bunger but also conflicts with well-established authority that the
apparent authority doctrine cannot be used against a local government entity or official.
See, e.g., City of Norwalk v. Conn. State Bd. of Labor Relations, 538 A.2d 694, 697
(Conn. 1988) (holding that a municipality may not be bound to an agreement under
apparent authority because “[e]very person who deals with [a municipal corporation] is
bound to know the extent of its authority and the limitations of its powers” (quoting
John J. Brennan Constr. Corp. v. Shelton, 448 A.2d 180, 185 (Conn. 1982))); Patrick
Eng’g, Inc. v. City of Naperville, 976 N.E.2d 318, 330 (Ill. 2012) (noting that “Illinois
courts . . . have never held that apparent authority may apply against municipalities”
and discussing the public policy reasons therefor); Potter v. Crawford, 797 A.2d 489,
492 (R.I. 2002) (“[T]he authority of a public agent to bind a municipality must be actual
. . . [and] any representations made by such an agent lacking actual authority are not
binding on the municipality.” (quoting Casa DiMario, Inc. v. Richardson, 763 A.2d 607,
610 (R.I. 2000)); 10 Eugene McQuillin, Municipal Corporations, § 29:21, at 419–20 (3d
rev. ed. 2009) (collecting cases). Under Bunger, Furler as a matter of law lacked
authority to vote for the reorganization. See also Dillon v. City of Davenport, 366 N.W.2d
918, 923–25 (Iowa 1985) (enforcing city’s settlement within actual authority extended to
its attorney while determining that insurance term beyond his authority “must be
deleted from the settlement agreement”). The foregoing authorities make clear that the
apparent authority doctrine cannot be used to create such authority. Thus, Furler
cannot be deemed to be a supervisor’s agent or proxy to trigger the open meeting
requirements of chapter 21. I fear today’s majority decision—which distorts basic
principles of municipal law—will have unintended consequences.
40
over a period of time, and at no particular place, the trial court properly
found that the Board did not violate the Act . . . .”).
The majority’s agency theory has not been adopted by any other
appellate court interpreting equivalent sunshine laws. Perhaps for that
reason, the plaintiffs in this case did not argue an agency theory in
district court or on appeal. Nor did their pleadings allege Administrator
Furler acted as an agent or proxy for any supervisor. 6 Rather, the
agency theory appears for the first time in this case in the amicus curiae
brief filed by the Iowa Newspaper Association and Freedom of
Information Council.
Not only is the agency theory a misreading of chapter 21, I would
hold that the theory was not preserved. We have repeatedly held that
amici cannot preserve issues for a party or raise new issues on appeal.
Press-Citizen Co. v. Univ. of Iowa, 817 N.W.2d 480, 493–94 (Iowa 2012)
(“Although this argument is developed at some length in the brief of the
amici, it was not raised below or by the Press–Citizen. We therefore
decline to reach it.”); see also Rants v. Vilsack, 684 N.W.2d 193, 198–99
(Iowa 2004) (declining to reach an argument raised by amici curiae that
was not presented to the district court); Mueller v. St. Ansgar State Bank,
465 N.W.2d 659, 660 (Iowa 1991) (noting that ‘[u]nder Iowa law, the only
issues reviewable are those presented by the parties’). The majority fails
to explain why the same rules do not apply here.
Plaintiffs are not entitled to a retrial because they never raised or
otherwise preserved an agency or proxy theory in district court. The
existence of an agency relationship and the extent of the agent’s
6If the agency theory had been raised in district court, the defendants would
have had the opportunity to respond and rebut it with testimony on Furler’s actual
authority, or lack of it.
41
authority are questions of fact. St. Malachy Roman Catholic Congregation
of Geneseo v. Ingram, 841 N.W.2d 338, 347 (Iowa 2013) (“Whether the
agency exists and its extent are questions of fact.” (quoting Fowler v.
Berry Seed Co., 248 Iowa 1158, 1165, 84 N.W.2d 412, 416 (1957))); see
also Peak v. Adams, 799 N.W.2d 535, 546 (Iowa 2011) (stating that
“[a]gency is generally a question of fact” and reversing a summary
judgment on an agency issue). The district court made no finding that
Furler acted as an agent for any supervisor. Rather, the district court
found each supervisor retained his authority to approve or veto the
reorganization while Furler merely acted as a “conduit” between them. A
conduit who relays information differs from an agent with authority to
negotiate policy decisions for her principal, as Justice Mansfield explains
today in his separate dissent, which I join. The district court never
found that Furler was authorized to act in the place of one supervisor
when she met with another. Nor can the court’s actual findings be
interpreted to include an implicit finding of agency. Appellate courts may
only use implicit findings to affirm a judgment. See Diercks, 806 N.W.2d
at 654–55 (“We assume the district court implicitly found the facts
necessary to support the fee award, including that the City did not
litigate in good faith.”); Gray v. Osborn, 739 N.W.2d 855, 861 (Iowa 2007)
(holding ambiguous findings “will be construed to uphold, not defeat, the
judgment” (quoting Johnson v. Kaster, 637 N.W.2d 174, 177 (Iowa 2001));
City of Des Moines v. Huff, 232 N.W.2d 574, 576 (Iowa 1975) (“In review
of any case tried to the court at law, findings of the trial court are to be
broadly and liberally construed, rather than narrowly or technically, and
in case of ambiguity, they will be construed to uphold, rather than
defeat, the judgment.”). We have never used implicit findings to reverse a
judgment.
42
The majority makes too much of the district court’s conclusion
that the supervisors “deliberated” by using Furler as a conduit.
Individual supervisors deliberated separately with Furler communicating
between them. 7 The district court never found that Furler deliberated in
the place of a supervisor; rather, Furler relayed information between
them. Furler’s deliberations are not those of a supervisor. Missing is the
requisite real time temporal proximity for the supervisors’ private
deliberations, as well as the requirement that two supervisors meet in
person. The district court expressly found the meetings between Furler
and individual supervisors did not trigger chapter 21.
We do not apply de novo review to fact-finding in an action to
enforce chapter 21. Rather, as the majority acknowledges, we review
actions to enforce the open meetings law as ordinary, not equitable,
actions. Schumacher v. Lisbon Sch. Bd., 582 N.W.2d 183, 185 (Iowa
1998). Accordingly, “the trial court’s findings are binding here if
supported by substantial evidence.” Tel. Herald, 297 N.W.2d at 533.
Most importantly, as an appellate court, we are “not free to substitute
[our] own findings of fact for those of the district court.” Walsh v. Nelson,
622 N.W.2d 499, 502, 504 (Iowa 2001) (vacating fact-finding by court of
appeals). Today’s departure from our precedent is all the more egregious
because the majority reverses the district court to grant a new trial under
a fact-bound theory the plaintiffs never raised. Giving the plaintiffs a
second bite at the apple under these circumstances is unfair to the
district court judge and to the defendants. Our practice until now has
7Deliberate means “to ponder or think about with measured careful
consideration and often with formal discussion before reaching a decision or
conclusion” or “to ponder issues and decisions carefully often with the aid of counsel
and formal consultation . . . THINK.” Webster’s Third New International Dictionary 596
(unabr. ed. 2002). These definitions make clear that a person can deliberate alone.
43
been that new liability rules are applied prospectively and in pending
appeals in which the issue had been preserved. See, e.g., Goetzman v.
Wichern, 327 N.W.2d 742, 746, 754 (Iowa 1982) (applying a new rule
when plaintiff had preserved error and to future trials and to “all pending
cases, including appeals, in which the issue has been preserved”),
superseded on other grounds by Iowa Code ch. 668, as recognized in
Berry v. Liberty Holdings, Inc., 803 N.W.2d 106, 111 (Iowa 2011); cf.
Sechler v. State, 340 N.W.2d 759, 761–62 (Iowa 1983) (declining to apply
Goetzman rule in pending appeal because plaintiff had failed to preserve
error on that issue). I would affirm the district court judgment without a
retrial.
Finally, while remanding this case, the majority misses the
opportunity to provide meaningful guidance on how to apply the
balancing test set forth in Iowa Code section 21.6(3)(c). That provision
expressly requires the court to “void any action taken in violation of this
chapter” unless the court affirmatively finds “the public interest in the
enforcement” of the open meetings law “outweighs the public interest in
sustaining the validity of the action taken in the closed session.” Id. If
defendants indeed violated the open meetings law, why not declare the
illegally consummated reorganization void and reinstate the terminated
employees? The majority, however, citing a single inapposite decision
from Vermont, 8 gratuitously suggests that violations of chapter 21 can be
8The majority cites Valley Realty & Development, Inc. v. Town of Hartford, 685
A.2d 292, 296 (Vt. 1996). That decision applied a statutory remedy provision unlike
Iowa’s to an evidentiary record bearing little resemblance to this Iowa litigation.
Specifically, a real estate developer sought a refund of sewer fees on grounds that the
town had acquired land seven years earlier for the sewage treatment facility allegedly in
violation of Vermont’s open meetings law. Id. at 293. The Vermont statute allowed for
“ ‘appropriate injunctive relief or for a declaratory judgment’ at the request of the
attorney general or a person aggrieved by the violation of the open meetings law.” Id. at
294 (quoting Vt. Stat. Ann. tit. 1, § 314(b)). The Vermont Supreme Court expressly
44
cured simply by ratifying the challenged actions at an open meeting. If
so, the majority has substantially weakened the enforcement
mechanisms for the open meetings law.
For these reasons, I respectfully dissent.
Mansfield and Zager, JJ., join this dissent.
_______________________
noted the “remedy provision of the open meeting law does not provide that actions
taken in violation of the law are void.” Id. Rather, the statute provided that no action
“shall be considered binding except as taken or made at such open meeting.” Id.(quoting Vt. Stat. Ann. tit. 1, § 312(a)). The court concluded that provision allowed
subsequent ratification of the property acquisition at an open meeting. Id. at 295–96.
By contrast, the Iowa statute provides that the court “[s]hall void any action taken in
violation of this chapter” if the suit is filed within six months and the public interest in
enforcing the open meetings law outweighs the public interest in the validity of the
action. See Iowa Code § 21.6(3)(c) (emphasis added). Moreover, the Vermont court
noted “there is no indication . . . the land purchase decision [seven years earlier] was
controversial or that citizens who wanted to comment on it were excluded from the
decision-making process.” Valley Realty, 685 A.2d at 295. Indeed, the plaintiff had no
“debate with the Town’s decision to buy the . . . property or its plans to expand the
sewage treatment facility.” Id. By contrast, the Warren County reorganization was
timely challenged within thirty days by the plaintiff employees who had been terminated
by highly controversial decisions allegedly made behind closed doors in violation of
Iowa’s open meetings law. Thus, Valley Realty is legally and factually inapposite. The
majority’s failure to clarify the balancing test virtually guarantees another appeal in this
contentious litigation if the district court on remand finds the Open Meetings Act was
violated, while attorney fees for both sides continue to mount.
45
#14–1649, Hutchison v. Shull
MANSFIELD, Justice (dissenting).
I join Justice Waterman’s dissenting opinion. I write separately to
discuss the majority’s blurring of concepts regarding the law of agency.
To say that an individual may be an agent merely begins the
analysis. We need to consider the scope of that person’s agency. See In
re Estate of Waterman, 847 N.W.2d 560, 574–75 (Iowa 2014). In
particular, what was the agent’s authority?
The record supports the conclusion that Administrator Furler was
one kind of agent. That is, she had authority to carry messages from one
supervisor to another. This fact, however, does not establish that a
quorum of the supervisors ever held an illegal meeting. As the statute
provides, see Iowa Code § 21.2(2), and as we stated in Telegraph Herald,
Inc. v. City of Dubuque, 297 N.W.2d 529, 532 (Iowa 1980), a meeting
“requires a gathering (in person or by electronic means) of a majority of
the members of a governmental body.” Serial communications, whether
the courier happens to be the mail, a carrier pigeon, Pony Express, or
Administrator Furler, do not violate the open meetings law.
A different question would be presented if Administrator Furler
were another kind of agent—that is, if she were empowered with decision-
making authority. For example, if one of the supervisors delegated to her
the authority to work out a restructuring plan with another supervisor,
this would be more problematic. In that case, Administrator Furler
would be a proxy rather than a conduit.
This distinction is just a matter of common sense. For example,
there is a big difference between a baseball team owner telling the
general manager to offer a specific salary to a specific free agent and the
46
owner giving the general manager permission to sign free agents for the
betterment of the team.
Despite this important distinction, the majority confuses the
matter by treating all agencies as if they were identical and using the
terms agent, conduit, and proxy interchangeably. As discussed above, a
conduit and a proxy are both agents, but they differ as to the scope of
their authority. Here the district court found that Administrator Furler
was a “conduit” or “messenger.” The court did not find that she was a
“proxy,” nor was such a theory tried. Hence, the court correctly found no
violation of the open meetings law.
In my view, our legislature made a logical decision when it allowed
members of state and local boards and governing bodies to communicate
privately in advance of public meetings, so long as the communications
do not amount to a real-time meeting. It is inherently difficult for
decision-making bodies to do all of their business in public. This
observation holds true whether the body is a board of supervisors, a
legislature, an appellate court, the board of directors of a charity, or the
management of a news media organization.
For these reasons, as well as those stated by Justice Waterman, I
would affirm the district court.
Waterman and Zager, JJ., join this dissent.