State board says Floyd County supervisors COVID-19 agenda item doesn’t satisfy requirements

By Bob Steenson, bsteenson@charlescitypress.com

A state board voted Thursday afternoon that the Floyd County supervisors did not meet the Iowa Open Meetings Law requirements regarding their agenda for a meeting in December where a courthouse mask mandate was discussed.

As a result of the decision, staff from the Iowa Public Information Board (IPIB) will meet with the supervisors or their representative and the person who filed the complaint, former supervisor Mark Kuhn, to try and reach an informal resolution.

The issue was whether an item regarding COVID-19 and the coronavirus that had been repeated on just about every Board of Supervisors agenda since early last summer was specific enough to let the public know what was actually going to be discussed or acted upon at the meeting.

The repeated agenda item said, “Review/Action regarding coronavirus (COVID-19) issues as applicable.”

At its Dec. 8 regular meeting, then-Chairman Roy Schwickerath made a motion under that agenda item to require that masks be worn in public places in the courthouse. The motion died when neither of the other two supervisors seconded it.

Kuhn, who had been attending several meetings during that time period, asking the board to enforce COVID-19 policies regarding screening for people entering county buildings and also asking for a mask requirement, had told the board at its workshop meeting Dec. 7, the day before, that he didn’t think the agenda listing met the requirements of the Iowa Open Meetings Law.

After the board considered the mask mandate at its Dec. 8 meeting, Kuhn filed a complaint with the IPIB.

At its monthly meeting on Thursday, IPIB Executive Director Margaret Johnson recommended that the state board accept Kuhn’s complaint. After just a few comments by board members, the body accepted the recommendation by a 9-0 vote.

Kuhn said in a statement after the meeting, “I was pleased the Iowa Public Information Board unanimously approved the acceptance order of my complaint, because openness and accountability are guiding principles that Floyd County must follow to earn the trust of its citizens.

“I look forward to working with the Iowa Public Information Board staff and the board of supervisors to find an informal resolution that insures the public’s right to know what is going to be considered at supervisors meetings and meets the requirements of the Iowa Open Meetings Law.”

The IPIB had first discussed Kuhn’s complaint at its meeting the month before. At that time, Johnson had recommended that the board dismiss Kuhn’s complaint, writing that it was “legally insufficient” because current state law as defined by an Iowa Supreme Court opinion isn’t clear as to agenda requirements.

In that recommendation to dismiss she wrote that the agenda item “could reasonably be understood to include issues such as masks and signage related to coronavirus protection.”

A number of the members of the state board indicated they thought the agenda item was not specific enough, but weren’t sure whether it violated the law. The board ended up tabling the item to the February meeting by an 8-1 vote.

After the meeting Thursday, Johnson told the Press that she changed her recommendation from dismiss to accept based on the board’s comments at the January meeting.

“Last time they weren’t in agreement to dismiss, so I wrote an acceptance order. It’s one of those that’s real subjective,” she said. “As was noted, there’s not a whole lot of law that would back up an acceptance. We’re just kind of informally trying to increase transparency.”

Johnson said one difference is that she was more clear in her recommendation this time that Assistant Floyd County Attorney Randy Tilton had given the supervisors advice before the Dec. 8 meeting.

“If this was the first time this agenda item had appeared on an agenda, it might have been sufficient to address all aspects of coronavirus issues,” Johnson wrote, “However, in this instance, an assistant county attorney advised the Board that the agenda item had been consistently used to address signage at the courthouse and considering a mask mandate went beyond the scope of the agenda item. Additional description was needed to be compliant with Iowa Code chapter 21.

“As used on the December 8, 2020, Board agenda, the agenda topic did not sufficiently advise the public that a mask mandate would be considered,” Johnson wrote.

Johnson explained to the Press what will happen next.

“By state law, once we accept a complaint then we engage in trying to negotiate an informal resolution, which I think will be pretty easy to do in this case,” she said. The law says “the board shall promptly work with the parties through employees of the board to reach an informal, expeditious resolution of the complaint.”

If a resolution is approved by both parties and the IPIB, then the case is dismissed, Johnson said.

If the parties can’t reach an agreement, then there are other steps the board can take. One of the options is sending the IPIB staff back “and tell us to try harder to get a resolution,” she said.

As a final resort the issue could be decided legally.

“They can determine that, yes, there is probably cause to decide there was a violation of state law and designate a prosecutor and go forward with a contested case proceeding under administrative law procedures,” Johnson said.

“Prosecution is way down the line — wa-a-ay down the line,” she said. “In the seven years we’ve been here, we’ve probably had 750 complaints and we’ve only had three that have gone to contested case. Three or four. It hardly ever does that, because our role, according to statute, is to try to assist local government to be transparent, not run around charging people with violations.”

Johnson noted that a couple of other items the board discussed Thursday also dealt with the specificity of agenda items.

IPIB Chairperson Julie Pottorf said during the meeting she was reluctant to vote to accept Kuhn’s complaint because the law is so subjective, but she would do so, and she would like the board at some point to consider recommending specific agenda requirements to the Iowa Legislature.