Koch v. Lower Loup NRD , 931 N.W.2d 160 ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/04/2019 09:07 AM CDT
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KOCH v. LOWER LOUP NRD
Cite as 27 Neb. Ct. App. 301
M ark A llen Koch, appellant, v. Lower Loup
Natural R esources District, appellee.
___ N.W.2d ___
Filed June 4, 2019. No. A-17-1257.
1. Actions: Equity: Public Meetings: Appeal and Error. An appellate
court reviews actions for relief under Nebraska’s Open Meetings Act
in equity because the relief sought is in the nature of a declaration that
action taken in violation of the act is void or voidable.
2. Equity: Appeal and Error. On appeal from an equity action, an appel-
late court tries factual questions de novo on the record and, as to ques-
tions of both fact and law, is obligated to reach a conclusion independent
of the conclusion reached by the trial court. But when credible evidence
is in conflict on material issues of fact, an appellate court considers and
may give weight to the fact the trial court observed the witnesses and
accepted one version of the facts over another.
3. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by the
court below.
4. Public Meetings: Words and Phrases. Although the Open Meetings
Act does not define “subcommittee,” a subcommittee is generally
defined as a group within a committee to which the committee may
refer business.
5. Public Meetings: Public Policy. The purpose of the Open Meetings Act
is to prevent the formation of public policy in secret.
6. Public Meetings: Public Policy: Legislature. The Open Meetings Act
does not require policymakers to remain ignorant of the issues they
must decide until the moment the public is invited to comment on a pro-
posed policy. 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.
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7. Public Meetings. The prohibition against decisions or formal action in
a closed session also proscribes rubberstamping or reenacting by a pro
forma vote any decision reached during a closed session.
Appeal from the District Court for Valley County: K arin L.
Noakes, Judge. Affirmed.
Mark Allen Koch, pro se.
Thomas S. Kruml, of Kruml Law Office, P.C., L.L.O., for
appellee.
Moore, Chief Judge, and R iedmann and Bishop, Judges.
Bishop, Judge.
I. INTRODUCTION
Mark Allen Koch filed a pro se complaint requesting a writ
of mandamus to void various meetings of the Lower Loup
Natural Resources District Programs/Projects Committee
(Committee), and all actions taken therein and therefrom,
alleging that the Committee violated Nebraska’s Open
Meetings Act, Neb. Rev. Stat. §§ 84-1407 to 84-1414 (Reissue
2014 & Cum. Supp. 2018). The district court for Valley
County granted summary judgment in favor of the Lower
Loup Natural Resources District (Lower Loup NRD). Koch
appealed, and this court reversed the judgment and remanded
the cause for further proceedings. See Koch v. Lower Loup
NRD, No. A-15-559, 2016 WL 7209828 (Neb. App. Dec.
13, 2016) (selected for posting to court website). After a
postremand bench trial, the district court determined that the
Committee was not functioning as a “public body” during the
meetings complained of and that therefore, it did not violate
the Open Meetings Act. Koch’s requested relief was denied,
and judgment was entered in favor of the Lower Loup NRD.
Koch appeals; we affirm.
II. FACTUAL BACKGROUND
This case concerns four meetings that took place in June
and July 2014: two meetings of the Committee (June 17 and
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July 15) and two meetings of the Lower Loup NRD Board
of Directors (Board) (June 26 and July 24). Koch attended
the meetings as a citizen, but also as a spokesman for the
“Bredthauer Dam Proposal,” a project which was discussed at
the meetings. We briefly summarize what happened at these
four meetings.
1. June 17, 2014—Committee Meeting
The Committee held a meeting on June 17, 2014. In attend­
ance at that meeting were six Committee members (all of whom
were directors on the Board), two other directors from the
Board, five staff members, and five members of the public. It
is undisputed that Koch, Eugene Bredthauer, and Bredthauer’s
son were not in the meeting room when the meeting began, but
entered some minutes later. Five items appeared on the meeting
agenda, one of which was the dam proposal.
The section of the minutes discussing the dam proposal
reveals the following: The Committee was informed that Koch
was told that in order for him to speak to the Committee, he
was to send an updated proposal prior to the meeting so
that staff could review the new information before it was
presented to the Committee. The proposal was not submit-
ted prior to the meeting. Discussion was had as to how to
proceed. It was “again” explained to Koch that “normal pro-
cedure” is to give the proposal to staff in advance, then staff
would review the information and make recommendations to
the Committee; then the Committee would review and discuss
the proposal and make recommendations to the Board. The
Committee ultimately voted to table the proposal until July,
“pending the Bredthauer proposal be[ing] submitted to staff
in advance of the meeting, allowing sufficient time to review
the proposal.”
Other than the budget report, for each of the other items
on the agenda, the Committee voted on what recommendation
to make to the Board: “City of Columbus Area Recreational
Trails (CART) Request”—the Committee voted to recommend
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to the Board to rescind the previous monetary commitment to
“CART” and to recommend to provide funds for the “Columbus
City Hospital Lake Trail” and for the “Lost Creek Trail”; “Lake
Ericson Gate Controller Request”—the Committee voted to
recommend to the Board to provide funds for the purchase
of the “SCADA” system; and “Davis Creek Restroom Doors
Bids”—the Committee voted to recommend to the Board that a
bid for the restroom doors and ceilings be approved.
2. June 26, 2014—Board Meeting
The Board held a meeting on June 26, 2014. The minutes
reflect that 17 out of the 21 directors were present at the
meeting. Ten staff members were in attendance, as well as
several “[g]uests,” including Koch and Bredthauer. The sec-
tion of the minutes titled “Public Comments” provides as
follows: Bredthauer told the Board that he had authorized
Koch to speak on his behalf regarding the dam proposal. Koch
handed out a proposal to each member of the Board and said
he understood that the Committee had “tabled the project”
until July. The chairman of the Board informed Koch that
anything the Board would consider for the proposal needed
to be “submitted to management first for [its] review.” Koch
responded that he would not be commenting on anything in
the proposal. However, Koch said the public comment he
wanted to make was that he was not allowed to enter the June
17 meeting of the Committee for 15 minutes and that he had
wanted to record the meeting and was disappointed when that
did not happen. He said he planned to attend the Committee
meeting in July and would like to present the proposal in an
indepth manner. He also said he hoped it would be a “fea-
sible project.”
One of the directors said he requested the dam proposal
be put on the June 2014 agenda for the Committee to deter-
mine whether the request should be revisited, but that Koch
was not “necessarily ‘on’ the agenda.” The director said that
the procedure was to “submit information to staff for [its]
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review, and if staff felt it was warranted, [staff] would bring
it to the Committee”; “staff would determine if the project
would be on the July Committee agenda.” Leon Koehlmoos,
the general manager of the Lower Loup NRD, said that at
the June meeting of the Committee, he had said he would
review proposals to see if there were any changes from the
original discussions with Bredthauer, and if there was nothing
new and Koch was asking for the same things as in the past,
Koehlmoos “probably would not be taking the information
forward.” Koch responded that the proposal he distributed to
the Board was “an entirely new proposal”; Koehlmoos said he
would review it.
The section of the minutes titled “Programs/Projects
Committee Report” contains a section regarding the dam pro-
posal and states as follows: A director said that the Committee
discussed whether or not to bring the dam proposal “forward”
and that it decided not to because Koch and Bredthauer did
not follow the protocol of giving information to staff first for
its review and letting staff decide whether or not to bring the
information to the Committee. The director told the Board that
the Committee voted to table the proposal until July, pending
the proposal being submitted to staff in advance of the meeting
and allowing sufficient time for review. Koehlmoos also told
the Board that it was a “misunderstanding” when Koch was
not immediately allowed to enter the Committee meeting and
that having someone wait to be introduced and brought into a
meeting is the process for certain other committee meetings,
so “the mistake was not intentional.” The chairman stated that
“the meeting was advertised as a public meeting, so . . . Koch
could have come in right from the beginning”; Koehlmoos
agreed and stated he would correct the misunderstanding for
public meetings in the future.
The section of the minutes titled “Programs/Projects
Committee Report” also contains sections for the “CART”
request, the “Lake Ericson Gate Controller Request,” and the
“Davis Creek Restroom Doors Bids.” After a report was given
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to the Board on each of these items, the Board took votes on
each. The Board’s votes were the same as the Committee’s
recommendations.
3. July 15, 2014—Committee Meeting
The Committee held a meeting on July 15, 2014. The
Committee minutes appearing in our record do not appear to
be a complete copy of the minutes (there are only two pages,
and the second page appears to be from the Committee meet-
ing in June). The July minutes state that seven Committee
members were present (all of whom are directors on the
Board). In addition to six “[s]taff present,” the minutes also
list Koch and Bredthauer as “[o]thers present.” The section of
the minutes discussing the dam proposal stated that Koch was
informed he could not make a video recording because the
Committee meeting was not a public meeting. “Koch reviewed
the proposal that he had presented to the Board at its June
meeting. Following the presentation, the Board discussed the
project, discussing issues with the 404 permit, public access
to the property, and the design of the project.” The Committee
then voted to recommend to the Board that the dam proposal
be denied.
Other items discussed were “CART Letters of Support”
(letters of support had been received and were included “in
the packet” for information purposes), “LLNRD Attendance
at County Fairs” (because of cost, Lower Loup NRD decided
to stop participating in county fairs “for a year or two and
then re-evaluate”), “Headquarter Road Signs” (staff provided
Committee “with mock-ups of potential road signs to be added
to the Airport Motel sign to direct the public to the office”;
Koehlmoos said potential expansion at the motel might mean
the sign would be moved, and he proposed waiting on the
sign until more information could be received; and Committee
consensus was to have staff address the issue, select signs,
and have them installed), and “Davis Creek Recreation
Areas” (simply states “Water Line Design and Estimates”; it
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appears we do not have a complete copy of minutes from this
point forward).
4. July 24, 2014—Board Meeting
The Board held a meeting on July 24, 2014. The minutes
reflect that 14 out of the 21 directors were present at the meet-
ing. Twelve staff members were in attendance, and Koch and
Bredthauer were among those listed as “[g]uests” in attend­
ance. The section of the minutes titled “Public Comments”
states that “[t]here were no public comments.”
The section of the minutes titled “Programs/Projects
Committee Report” contains a section regarding the dam pro-
posal, which states as follows: Koehlmoos said that Koch spent
about an hour reviewing the proposal with the Committee
on July 15, 2014. A member of both the Committee and the
Board stated that Koch’s presentation was “very interesting
and well presented,” but there were issues and unanswered
questions about the proposal regarding permits, public access,
and design. He also said that there was “a lot of uncertainty”
about the proposal and that the Committee “didn’t feel com-
fortable moving forward,” so it was recommending denial of
the request.
The minutes note that Koch “outlined his concerns regard-
ing the Open Meetings Act” and gave a 15-minute presentation
reiterating items in the proposal. Another guest in attendance
at the Board meeting then spoke in favor of the dam pro-
posal. Discussion was had “about the project being a private
structure, engineering assistance, DNR permit, and funding.”
Eleven of the directors present at the meeting then voted to
deny the dam proposal.
The section of the minutes titled “Programs/Projects
Committee Report” also contains sections for the “CART
Letters of Support,” “LLNRD Attendance at County Fairs,”
and “Headquarters Road Signs.” A report was given to the
Board on each of these items; however, no vote of the Board
was taken.
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The “Programs/Projects Committee Report” also contained a
section for the “Davis Creek Recreation Area”; it reflects that
more items were addressed at the July 2014 meeting of the
Committee than appear in our incomplete copy of the minutes,
as we noted above. The Committee report states that the “Water
Line Design and Estimates” were discussed. Koehlmoos said
that the “water line design was in the budget” and that the
Committee recommended requests for bidding be sent out to
potential bidders; after the report, the Board voted that requests
for bidding be sent to potential bidders for the water system
and lines at the recreation area. A “Request for Campground
Design” was also discussed for the recreation area. Koehlmoos
said there was a need for more campsites at the recreation
area, that the Committee discussed the development of a new
campsite, and that there was money in the budget for one;
“[i]t was the recommendation of staff and the Committee to
seek a design.” After the report, the Board voted to hire a con­
sultant to design a new campground at the recreation area. The
Committee report included updates on two other items, but no
votes were taken.
III. PROCEDURAL BACKGROUND
On October 14, 2014, Koch filed a “Complaint Request
for Writ of Mandamus for Open Meetings Act and Freedom
of Information Act Violations by the Lower Loup [NRD] and
Discrimination Against Koch Repair When Representing the
Eugene Bredthauer Dam Project.” Koch alleged various viola-
tions of the Open Meetings Act. He asked that actions taken
in violation of the Open Meetings Act be voided and that
those responsible for violating the Open Meetings Act be held
accountable. He also requested that the Lower Loup NRD be
made to allow him access to public records.
On November 14, 2014, the Lower Loup NRD filed its
answer to Koch’s complaint, generally denying all allegations.
The Lower Loup NRD also alleged affirmative defenses.
On December 29, the Lower Loup NRD filed a motion for
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summary judgment, alleging that there were no issues of
material fact and that it was entitled to judgment as a matter
of law.
On March 10, 2015, Koch filed a motion to amend the com-
plaint, stating that the amended complaint was to be filed on
March 16.
On March 16, 2015, Koch, without leave of the court,
filed an “Amended Complaint for Writ of Mandamus for
Open Meetings Act Violations by the Lower Loup Natural
Resource District and Discrimination Against Koch Repair
Representing the Eugene Bredthauer Dam Project.” In his
amended complaint, Koch alleged the following “Cause[s]
of Action”: (1) he was refused access to and the ability to
record the first 14 to 16 minutes of the “published public
meeting” of the Committee on June 17, 2014; (2) the Lower
Loup NRD (a) changed the classification of the Committee to
a “sub-committee” to circumvent the Open Meetings Act and
then (b) changed the date of the published July 2014 meet-
ing of the Committee without published notification; (3) he
was not allowed to video record the July 2014 meeting of the
Committee; and (4) (a) he was not allowed to present the dam
proposal at the “public meeting” even though the proposal was
“on the agenda” (it is unclear which meeting Koch is referring
to in his pleading), (b) he was told he would not get to speak
if staff decided not to put the proposal on the agenda for the
July meeting of the Committee, and (c) staff refused to allow
him an agenda item. Koch asked the district court to (1) “void
the entire meeting of the Programs and Projects Committee for
July, 2014”; (2) order “all information given to the [Board at
the] meeting [in] July, 2014 and action taken on that informa-
tion (including the vote against the Bredthauer Mira Creek
Dam Project) from the illegal meeting be voided”; and (3)
hold all members of the Committee accountable for violating
the Open Meetings Act.
In its journal entry and order filed on March 17, 2015, the
district court memorialized the following: A hearing was held
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that day on the Lower Loup NRD’s motion for summary judg-
ment and on Koch’s motion to amend his complaint. At the
hearing, the Lower Loup NRD agreed to proceed on Koch’s
motion to amend his complaint, even though it was not given
proper notice. Prior to ruling on the motion, the district court
inquired of Koch as to his specific and complete requests for
relief in each cause of action alleged in the amended com-
plaint. Koch stated that as to the first cause of action, he was
requesting an order declaring the June 17, 2014, meeting void.
As to the second cause of action, he was requesting an order
requiring the Committee meetings to be open to the public.
As to the third cause of action, he was requesting an order
directing the Committee to allow video recordings of meet-
ings. As to the fourth cause of action, he was requesting an
order directing the Committee to allow citizens to speak at
the Committee hearings, including items on the agenda. Koch
was also requesting $12,500 in damages and costs. The district
court sustained Koch’s motion to amend his complaint and
found that the amended complaint filed March 16, 2015, was
the operative complaint. The Lower Loup NRD was given 7
days to file an amended answer. The district court also granted
the Lower Loup NRD’s oral motion to continue the motion
for summary judgment, and the matter was rescheduled for
April 21.
On March 18, 2015, the Lower Loup NRD filed its answer
to Koch’s amended complaint and denied all allegations. Also
on March 18, the Lower Loup NRD filed an amended motion
for summary judgment, alleging that there were no issues of
material fact and that it was entitled to judgment as a matter
of law.
On April 21, 2015, a hearing was held on the Lower Loup
NRD’s amended motion for summary judgment. In its order
filed on June 16, the district court granted summary judg-
ment in favor of the Lower Loup NRD on all causes of action
and dismissed Koch’s complaint. Koch appealed; this court
reversed the judgment and remanded the cause for further
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proceedings. See Koch v. Lower Loup NRD, No. A-15-559,
2016 WL 7209828 (Neb. App. Dec. 13, 2016) (selected for
posting to court website). In our memorandum opinion, we
found there was a genuine issue of material fact as to whether
the Committee is a subcommittee, and thus exempt from the
Open Meetings Act. We also noted that neither the parties
nor the district court addressed whether the Committee is
an advisory committee which would be subject to the Open
Meetings Act.
A postremand bench trial was held on August 28, 2017.
Evidence will be discussed as necessary later in our analysis.
In its order filed on November 8, the district court found that
the Committee was a subcommittee of the Board, and not an
advisory committee, and therefore was not a public body as
defined in the Open Meetings Act. The court further found that
the Committee meetings were not required to be open to the
public because there was not a quorum of the Board present
at the Committee meetings and because the Committee did not
hold hearings, make policy, or take formal action on behalf of
the Board. The court denied all relief requested by Koch, and
judgment was entered in favor of the Lower Loup NRD.
Koch appeals.
IV. ASSIGNMENTS OF ERROR
Koch assigns numerous errors to the district court, which
ultimately boil down to whether or not the district court erred
in concluding that the Committee was not a public body sub-
ject to the requirements of the Open Meetings Act.
V. STANDARD OF REVIEW
[1,2] An appellate court reviews actions for relief under
Nebraska’s Open Meetings Act in equity because the relief
sought is in the nature of a declaration that action taken in
violation of the act is void or voidable. Salem Grain Co. v.
City of Falls City, 302 Neb. 548, 924 N.W.2d 678 (2019). On
appeal from an equity action, an appellate court tries factual
questions de novo on the record and, as to questions of both
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fact and law, is obligated to reach a conclusion independent
of the conclusion reached by the trial court. Id. But when
credible evidence is in conflict on material issues of fact,
we consider and may give weight to the fact the trial court
observed the witnesses and accepted one version of the facts
over another. Id.
[3] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an indepen-
dent conclusion irrespective of the decision made by the court
below. Id.
VI. ANALYSIS
1. Nebraska’s Open Meetings Act in General
“Every meeting of a public body shall be open to the
public . . . except as otherwise provided by the Constitution
of Nebraska, federal statutes, and the Open Meetings Act.”
§ 84-1408. Section 84-1409 defines “[p]ublic body” as follows:
(1)(a) Public body means (i) governing bodies of all
political subdivisions of the State of Nebraska, (ii) gov-
erning bodies of all agencies, created by the Constitution
of Nebraska, statute, or otherwise pursuant to law, of the
executive department of the State of Nebraska, (iii) all
independent boards, commissions, bureaus, committees,
councils, subunits, or any other bodies created by the
Constitution of Nebraska, statute, or otherwise pursuant
to law, (iv) all study or advisory committees of the execu-
tive department of the State of Nebraska whether having
continuing existence or appointed as special committees
with limited existence, (v) advisory committees of the
bodies referred to in subdivisions (i), (ii), and (iii) of this
subdivision, and (vi) instrumentalities exercising essen-
tially public functions; and
(b) Public body does not include (i) subcommittees of
such bodies unless a quorum of the public body attends a
subcommittee meeting or unless such subcommittees are
holding hearings, making policy, or taking formal action
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on behalf of their parent body, except that all meetings
of any subcommittee established under section 81-15,175
[to evaluate projects and proposals seeking allocations
from the Nebraska Environmental Trust Fund and/or the
Nebraska Environmental Endowment Fund] are subject to
the Open Meetings Act, and (ii) entities conducting judi-
cial proceedings unless a court or other judicial body is
exercising rulemaking authority, deliberating, or deciding
upon the issuance of administrative orders.
(Emphasis supplied.) “[N]o public body shall designate itself
a subcommittee of the whole body for the purpose of circum-
venting the Open Meetings Act.” § 84-1410(4).
The public has the right to attend and speak at meetings of
the public bodies. § 84-1412(1). Any person in attendance may
videotape or record all or any part of a meeting of the public
body. Id. However, the public body may make and enforce rea-
sonable rules and regulations regarding the conduct of persons
attending, speaking at, videotaping, or recording its meetings.
§ 84-1412(2). A body may not be required to allow citizens to
speak at each meeting, but it may not forbid public participa-
tion at all meetings. Id. No public body shall, for the purpose
of circumventing the Open Meetings Act, hold a meeting in a
place known by the body to be too small to accommodate the
anticipated audience. § 84-1412(4).
Finally, § 84-1414(1) provides in relevant part:
Any motion, resolution, rule, regulation, ordinance, or
formal action of a public body made or taken in violation
of the Open Meetings Act shall be declared void by the
district court if the suit is commenced within one hundred
twenty days of the meeting of the public body at which
the alleged violation occurred.
Koch filed his original complaint within 120 days of all meet-
ings at issue.
2. Board Is Public Body
In 1969, the Nebraska Legislature created the State’s natu-
ral resources districts. See Neb. Rev. Stat. § 2-3201 (Reissue
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2012). The Legislature has declared that natural resource dis-
tricts are political subdivisions of the State. See Neb. Rev. Stat.
§ 2-3213 (Reissue 2012). Each district is governed by a board
of directors. Id. Accordingly, the Board is a “public body,”
and its meetings are subject to the Open Meetings Act. See
§§ 84-1408 and 84-1409(1)(a)(i). See, also, Neb. Rev. Stat.
§ 2-3219 (Reissue 2012) (notice of all board meetings shall be
given pursuant to § 84-1411 of Open Meetings Act).
3. Is Committee a Subcommittee?
We must determine whether or not the Committee is a sub-
committee of the Board; the district court concluded it was.
If the Committee is a subcommittee, then its meetings are not
subject to the Open Meetings Act unless a quorum of the pub-
lic body attends a subcommittee meeting or unless it is hold-
ing hearings, making policy, or taking formal action on behalf
of its parent body. See §§ 84-1408 and 84-1409.
(a) Applicable Law
[4-7] Although the Open Meetings Act does not define
“subcommittee,” a subcommittee is generally defined as a
group within a committee to which the committee may refer
business. City of Elkhorn v. City of Omaha, 272 Neb. 867,
725 N.W.2d 792 (2007) (citing Black’s Law Dictionary 290
(8th ed. 2004)). In City of Elkhorn, members of the Omaha
City Council attended informational sessions prior to a public
meeting regarding the annexation of Elkhorn, Nebraska; there
was no quorum of council members present at any one of the
informational sessions. The Nebraska Supreme Court held
that informational sessions attended by a subgroup of the city
council, consisting of less than a quorum which, according
to city charter, had no power to make any determination or
effect any action, were not meetings of a public body under
the Open Meetings Act. The Supreme Court noted that the
purpose of the Open Meetings Act is to prevent “the forma-
tion of public policy . . . in secret.” § 84-1408. The court
then stated:
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But it does not require policymakers to remain igno-
rant 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 policymak-
ers from reflecting and preparing to consider proposals,
or from privately suggesting alternatives. See Hispanic
Educ. Com. v. Houston Ind. Sch. Dist., 886 F. Supp. 606
(S.D. Tex. 1994) [(actual decision to appoint specific per-
son formally to position of superintendent was undisput-
edly made at open meeting in full compliance with Texas
law, and earlier discussions of that person’s candidacy for
position were not final decisions and thus not illegal)].
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 practi-
cal accommodation for a public body’s need for informa-
tion to conduct business.
Also, other courts have declined to apply public meet-
ing laws to nonquorum gatherings intended to obtain
information or voice opinions. See, e.g., id.; Freedom
Newspapers v. Orange Cty., 6 Cal. 4th 821, 863 P.2d 218,
25 Cal. Rptr. 2d 148 (1993) [(committee composed solely
of board members numbering less than quorum of board
was excluded from open meeting requirements; commit-
tee’s function was to review various matters related to
business of board and to make recommendations to full
board for action; full board considered committee’s rec-
ommendations in public meetings, at which time there
was opportunity for full public discussion and debate; and
committee did not have any decisionmaking authority)];
Delaware Solid Waste Authority v. News-Journal, 480
A.2d 628 (Del. 1984) [(standing committee composed
solely of directors numbering less than quorum of direc-
tors for Delaware Solid Waste Authority (Authority) are
not subject to open meetings laws; standing committee
investigated Authority operations and then reported its
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conclusions and recommendations, if any, to full board;
all meetings of Authority, where work of committees
is discussed, are open to public; after debate, Authority
as whole publicly renders policy decision, and publicly
takes steps to implement it; and throughout its meetings,
Authority is open to public questions, comment, and
criticism)]; Lyon v. Lake County, 765 So. 2d 785 (Fla.
App. 2000) [(when committee has been established for
and conducts only information gathering and reporting,
activities of that committee are not subject to open meet-
ings laws)]; Mason v. Vision Iowa Bd., 700 N.W.2d 349
(Iowa 2005) [(committee not subject to open meetings
laws; committee did not have policymaking duties, but,
rather, it made recommendations and then board made
ultimate decision on course of action to be taken)]. It is
true that we have been concerned with a public body’s
perfunctorily approving a decision in a public meeting
that was apparently reached in a private meeting. “The
prohibition against decisions or formal action in a closed
session also proscribes . . . rubberstamping or reenacting
by a pro forma vote any decision reached during a closed
session.” Grein v. Board of Education, 216 Neb. 158, 168,
343 N.W.2d 718, 724 (1984). But Grein is distinguishable
on two counts.
First, Grein involved a closed session of a full school
board. Obviously, a private meeting of a full public body,
or a quorum thereof, raises the concern that the mem-
bers will reach consensus on a matter of public concern
out of the public’s view. See, also, Johnson v. Nebraska
Environmental Control Council, 2 Neb. Ct. App. 263, 509
N.W.2d 21 (1993).
Second, the school board in Grein immediately voted
on an agenda item after a closed session, without further
discussion or deliberations. “The necessary inference is
that the vote during the reconvened open session was
the extension, culmination, and product of the closed
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session.” 216 Neb. at 167-68, 343 N.W.2d at 724. Here,
Omaha informed the public of all relevant facts support-
ing the annexation, and the public had full opportunity to
voice its concerns.
City of Elkhorn v. City of Omaha, 272 Neb. 867, 881-82, 725
N.W.2d 792, 806 (2007). And the Supreme Court noted that
the Omaha City Council did not reach a final decision on the
annexation until it had received the public’s input on the plan.
In addressing the claim in City of Elkhorn that under
§ 84-1410(4), “no public body shall designate itself a subcom-
mittee of the whole body for the purpose of circumventing the
Open Meetings Act,” the Nebraska Supreme Court stated:
We need not decide whether, under this section, a sub-
committee need be composed of the entire body or a
quorum before it could circumvent the [Open Meetings]
Act, because here, the evidence shows Omaha did not
attempt to circumvent the [a]ct. As noted, Omaha gave
the public access to the same information as the council
received and an opportunity to be heard. We conclude that
the informational sessions of less than a quorum of the
Omaha City Council members did not constitute a public
meeting under the [a]ct.
272 Neb. at 883, 725 N.W.2d at 807.
(b) Trial Evidence
At the bench trial, Russell Callan, the assistant general
manager of the Lower Loup NRD, testified and explained the
project proposal process as follows: When someone applies for
a project approval to the Lower Loup NRD, the application is
initially submitted to staff. “[S]taff . . . usually tries to sit with
folks and review it to make sure that . . . it’s warranted, that
it’s even an NRD activity,” and to determine the appropriate
committee for the proposal. Staff helps “participant[s] accu-
mulate the correct information” and makes sure that “they get
all their information put together so when they come to the
committee they can make a presentation to the committee.”
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After being presented to the Committee, the Committee looks
through the proposal and then votes to send it to the Board as
“an approval request or recommendation” or “a denial recom-
mendation.” Callan affirmed that if the Committee believes
that it needs more information or further study of the matter,
it can refer that proposal back to staff for further development.
Regardless of whether the Committee recommends approval
or denial, all proposals are presented to the entire Board. On
cross-examination, Callan stated that “there’s usually discus-
sion” on all proposals that are brought to the Board. Callan
agreed that the Board usually follows the recommendation of
the Committee.
According to Callan, neither staff nor the Committee has
any absolute authority to approve or deny a project proposal.
The “Board of directors has the authority to . . . approve or
deny projects.” The Board, not the Committee, is the govern-
ing body of the Lower Loup NRD. Callan agreed that the
Committee is “a committee underneath [or] a subgroup” of
the Board; the Committee does not involve a quorum of the
Board and does not have any authority to act on behalf of the
Board. He affirmed that the role of the Committee is to con-
sider information and make recommendations to the Board for
a final decision.
Callan was present at the Committee meetings on June
17 and July 15, 2014. Callan testified that “[d]uring the
[C]ommittee meeting, staff takes minutes and then records
them and submits them through the agenda process to the . . .
full [B]oard.” There were a total of eight directors present at
the June 17 meeting (six members of the Committee and two
other directors not on the Committee), and there were seven
directors present at the July 15 meeting. There are 21 direc-
tors on the Lower Loup NRD, so 11 directors are needed for
a quorum; there was no quorum at the Committee meetings on
either June 17 or July 15. According to Callan, the Committee
does not hold hearings and no hearings were held at either the
June 17 or July 15 meeting. Callan’s definition of a hearing is
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“a formal process that a governing body goes through to take
testimony and . . . information from . . . a person or the general
public . . . for a certain function or need,” weighing both evi-
dence and testimony. Callan denied that the Committee holds
hearings where it takes sworn testimony or public information
of that nature. Callan also denied that the Committee made any
policy binding upon the Lower Loup NRD or that it took any
formal action on behalf of the Board.
Callan acknowledged that Koch was present at the
Committee meeting on June 17, 2014, but was “very agitated
that he was not able to enter the meeting right away.” Koch
was able to present his proposal regarding the dam, and “[i]t
was recommended to go back to staff for review.” The meeting
minutes do not reflect that Koch was able to present his pro-
posal. Rather, the minutes reflect that the Committee voted to
table the proposal until July, “pending the Bredthauer proposal
be[ing] submitted to staff in advance of the meeting, allowing
sufficient time to review the proposal.”
Callan acknowledged that Koch was also present at the
Committee meeting on July 15, 2014, and gave a presentation
regarding the dam proposal. Members of the Committee were
able to ask questions and have interaction with Koch, and the
members had “concerns about permitting, engineering and
design, [and] the fact that it’s a private structure, not a public
structure.” The Committee’s recommendation was to deny the
request. Callan acknowledged that the recommendation would
include a presentation of the findings and studies and the con-
cerns that were developed at that meeting.
Koehlmoos, the general manager of the Lower Loup NRD,
was called as a rebuttal witness by Koch. Koch had Koehlmoos
read a portion of the minutes from the June 26, 2014, meeting
of the Board, which state:
Koehlmoos said, that at the June Committee meeting,
he had said he would review proposals to see if there were
any changes from original discussions with Bredthauer;
and if there was nothing new and Koch was asking for the
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same things as in the past, Koehlmoos said he probably
would not be taking the information forward.
Koch then asked Koehlmoos if that meant that Koehlmoos
could decide if the proposal went forward to the Committee.
Koehlmoos responded, no, that there were “a number of ways
to be put on any agenda.” Koehlmoos said that the chairman
of the Board can request an agenda item be added or that two
members of the Board can ask that an agenda item be added.
But that as the preparer of the agenda, Koehlmoos said it was
his job to “look through the information, and if its informa-
tion that’s already been covered and nothing significantly has
changed, because of time of directors, . . . I don’t report the
same thing over and over and over again.” He further said,
“So, I think, per my statement, that . . . I looked to see if
there were changes from the original discussion and there
were none, so, you know, it didn’t go forward.” Koehlmoos
was also asked who had the authority to place things on the
agenda for the Board. He responded, “I do as far as the pre-
parer of the agenda, or I can be directed to add an agenda
item by the chair” or by “two or more . . . members on the
NRD Board.”
Koehlmoos stated that if something “doesn’t meet our
[Lower Loup] NRD authority, I probably will not take it before
the [C]ommittee,” but “it’s not to say that it can’t get to the
[C]ommittee by way of either the chairman or . . . a number of
directors that wish [it] to be placed there.” At the Committee
meetings, “ideas are brought, discussion is made” and “we do
discuss the item in greater detail than allowable during the
public [meeting of the Board].” The Committee is a “subcom-
mittee or a committee of a non-quorum group that are allowed
some flexibility in asking questions and throwing out ideas and
maybe even doing some discussions on the items to come to
what then is carried, you know, a recommendation to take to
the [B]oard.”
Koch testified that he attempted to present the dam proposal
for Bredthauer, whose dam washed out in 2010 (Bredthauer
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asked Koch for assistance in building his dam). Koch said he
attempted to get the proposal on the agenda for the Committee
meeting on June 17, 2014, but was told that it would not be on
the agenda; however, the Committee meeting agenda had the
proposal listed.
Koch said he was refused entry to the Committee meeting
on June 17, 2014, for 15 minutes, but was then told he could
go in because it was a “public meeting.” He could not record
the entire meeting because of the late entry. He claimed that
the meeting room was too small for the number of people
in attend­ance. (Bredthauer also testified that the room was
“cramped.”) According to Koch, a discussion regarding the
“CART” agenda item was in progress when Koch entered
the meeting and “specific dialogue made me understand that
there were decisions being formulated” in the Committee
that “were not represented entirely” in front of the Board.
Koch wants every decision of the Committee that was not
public—“[a]nything that I wasn’t allowed to hear”—to be
declared void.
When the Committee reached the agenda item for the dam
proposal on June 17, 2014, Koch said he was told that the pro-
posal was “on the agenda to decide whether [it was] going to
[be] on the agenda.” (An audio recording of the meeting made
by Koch was received into evidence and reveals that the dam
proposal was listed on the agenda so that the Committee could
decide whether it wanted to discuss the proposal again. The
Committee noted that the proposal had been brought to the
Board and voted against in the past, so if there was nothing
new in the proposal, there was no reason to look at it again.
Because Koch had not submitted the allegedly new proposal
to staff for review prior to the Committee meeting, the issue
was tabled until July in order to allow the review to occur.)
Koch sought to have the proposal put on the agenda for the
Committee meeting in July, and he noted that the meeting date
had been changed from July 17 to July 15. He said he was
told he could not record the Committee meeting on July 15
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because the Committee does not go by the Open Meetings Act.
Koch stated that the meeting room for the Committee meeting
in July was again too small. According to Koch, he presented
the dam proposal for 2 hours at the Committee meeting in
July, but at the Board meeting in July, only 4 or 5 minutes
were taken to summarize his 2-hour presentation; the Board
voted to deny any funding for the dam proposal.
Koch stated that votes were taken at the Committee meet-
ings in June and July. He further stated that each of the agenda
items for the Board meeting in July took 2 to 5 minutes to
decide, whereas discussion at the Committee meeting took 30
to 45 minutes. Koch believes what the Committee does is “rub-
berstamped” by the Board.
(c) Our Decision
Although there is evidence in the record that staff and/
or the Committee had stated that the Committee meeting in
June was an “open meeting” and was “public,” their personal
descriptions of the meeting is not controlling for purposes of
determining whether the Committee is a subcommittee subject
to the Open Meetings Act.
Keeping in mind the evidence and the legal principles
set forth previously, we conclude that the Committee was a
subcommittee of the Board and was not subject to the Open
Meetings Act at either its June or July 2014 meetings. Neither
of those meetings of the Committee had a quorum of the Board
in attendance. And as testified to by Callan, the Committee
does not hold hearings, make policy, or take formal action on
behalf of the Board.
According to the testimony of Callan and Koehlmoos, ideas
are brought and discussion is had at the Committee meet-
ings; the Committee considers the information and makes
recommendations to the Board for a final decision. According
to Callan, neither staff nor the Committee has any absolute
authority to approve or deny a project proposal. The Board
“has the authority to . . . approve or deny projects.” The
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Board, not the Committee, is the governing body of the Lower
Loup NRD. We have reviewed the meeting minutes of the
Committee and the Board, as well as listened to the various
audio recordings made by Koch that were received into evi-
dence, and we note that no final decisions were made at the
Committee meetings; the Committee only voted on what rec-
ommendations to make to the Board on the various proposals.
The Board then held a public meeting, where the public was
allowed to comment, further discussion was had, and a final
decision was made.
As the Nebraska Supreme Court stated in City of Elkhorn
v. City of Omaha, 272 Neb. 867, 881, 725 N.W.2d 792, 806
(2007), the Open Meetings Act “does not require policymak-
ers 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 policy-
makers from reflecting and preparing to consider proposals, or
from privately suggesting alternatives.” The court also recog-
nized that “other courts have declined to apply public meeting
laws to nonquorum gatherings intended to obtain information
or voice opinions.” Id. The City of Elkhorn court cited author-
ity from other states which held that committees that did not
have any decisionmaking authority, but reviewed matters and
made recommendations to the full board for final decision
(after full public discussion and debate) were not subject to
the Open Meetings Act. That is exactly what occurred in the
instant case. The Committee reviewed projects and propos-
als and then made recommendations to the Board. The Board
had a public meeting, where the public was allowed to com-
ment, further discussion was had, and then a final decision
was made.
Although Koch contends that the Committee’s decision
is “rubberstamped” by the Board, we disagree. Unlike in
Grein v. Board of Education, 216 Neb. 158, 343 N.W.2d 718
(1984), where the school board immediately voted on an
agenda item after a closed session without further discussion
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or deliberations, the Board in the instant case had a public
meeting more than a week after the Committee meeting. At
the public meeting, the public was allowed to comment, fur-
ther discussion was had, and then a final decision was made.
Just like in City of Elkhorn, supra, and the cases cited therein,
the Board did not reach a final decision on issues until it had
allowed and received the public’s input.
For the sake of completeness, we note that the district
court also concluded that the Committee was not an advisory
committee. This finding was made in response to our previ-
ous opinion where we noted that neither party nor the district
court had addressed whether the Committee was an advisory
committee. See Koch v. Lower Loup NRD, No. A-15-559,
2016 WL 7209828 (Neb. App. Dec. 13, 2016) (selected for
posting to court website). However, that observation was
made solely to point out that the record on summary judg-
ment lacked sufficient information to determine exactly what
the Committee’s role was with respect to actions taken by the
Board; the record before this court now sufficiently estab-
lishes that the Committee qualifies as a subcommittee under
§ 84-1409(1)(b) and is therefore not a public body subject to
the Open Meetings Act. That being the case, it follows that
the Committee cannot also be an advisory committee, which
is specifically identified as a public body subject to the Open
Meetings Act. See § 84-1409(1)(a)(v).
VII. CONCLUSION
Because we have determined that the Committee was not
functioning as a public body at the meetings complained of,
and thus not subject to the requirements of the Open Meetings
Act, we affirm the district court’s denial of all relief requested
by Koch and its judgment in favor of the Lower Loup NRD.
A ffirmed.