As previously discussed in part one of this three-part series, in Hutchison v. Shull, the Iowa Supreme Court considered whether meetings of individual members of the three-member Warren County Board of Supervisors (“Supervisors”) with the non-elected Warren County Administrator (“Administrator”), deliberating about the reorganization of county government, should have been held as open meetings. The Court remanded the case to the district court and instructed it to apply agency principles in determining whether, in this case, an in-person meeting of one Supervisor with the Administrator was a “meeting” as defined by Iowa Code section 21.1(2) because the Administrator was acting as the agent of another Supervisor. The Court concluded its opinion by stating that the open meetings law prohibits the majority of a governmental body from gathering in-person through the use of agents or proxies in order to deliberate any matter within the scope of its policy-making duties outside of an open meeting.
The conclusion in Hutchison turns on two important concepts that we explore further in this article. First, what constitutes “deliberation”? Second, who is considered to be an “agent” or proxy? The first concept has been addressed by several previous courts and in attorney general opinions. The second issue has not been addressed in depth previously in the open meetings law context, and is the subject of additional analysis on remand of the Hutchison case to the district court.
What is Deliberation?
Under the Iowa Code, a “meeting” is defined as “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 [Chapter 21].” Iowa Code section 21.2(j)(2).
In Hutchison, the Court did not decide whether the Supervisors “deliberated” but instead assumed they had. However, it is worthwhile to spend some time exploring what constitutes deliberation in order to better understand Iowa’s open meetings law.
The Iowa Code does not define the term “deliberation”, but Iowa courts have provided further definition of its meaning, over time. The Hutchison Court notes that “[i]f 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”, or to “exchange ideas”, a meeting would not have occurred.
In 2008, the court of appeals stated that “[t]he difference between a ministerial gathering and one that involves deliberation appears to be whether members are gathering information or are discussing opinions.” See Dooley v. Johnson Cty. Bd. of Supervisors, 760 N.W.2d 210, at *4 (Iowa Ct. App. 2008) (unpublished decision). Likewise, in Telegraph Herald, Inc. v. City of Dubuque, the Supreme Court found that “[a]ctivities of a governmental body’s individual members to secure information to be reported and acted upon at an open meeting ordinarily do not violate [open meetings] statutes.” 297 N.W.2d 529, 534 (Iowa 1980).
The Hutchison Court, in dicta, explains that the Iowa Court of Appeals has previously held that deliberation “generally involves ‘discussion and evaluative processes in arriving at a decision or policy.’” (citing Hettinga v. Dallas Cty. Bd. of Adjustment, 375 N.W.2d 293, 295 (Iowa Ct. App. 1985)). Additionally, the Hettinga court noted that “although a gathering may be ‘purely ministerial’ if members of a body assemble simply to receive information without discussing policy . . . ministerial activities may develop into deliberation if members of a governmental body ‘engage in any discussion that focuses at all concretely on matters over which they exercise judgment or discretion.’” Id. (citing Iowa Op. Att’y Gen. 81-7-4(L) at 10) (emphasis added).
It is important that governmental bodies understand the sometimes subtle distinction between deliberation and non-deliberation. It is not always clear when “gathering information”, “exchanging ideas” or “discussing various options” crosses the line into discussions that “focus at all concretely” or express opinions. Each circumstance will be unique, and will depend on the facts at hand. However, a prudent approach may be to consider deliberation as any discussion of matters over which the governmental body exercises judgment or discretion, other than merely receiving information, eliciting clarification about information presented, or discussing matters in general, non-concrete, terms (such as exchanging general ideas or discussing various options in a given situation). Even where there is no intention to deliberate, members of a governmental body should be constantly aware, when they are in a group of a majority, that their general discussions or information gathering sessions could effortlessly become deliberation under Iowa law if they are not careful to monitor and restrict the content of the discussion. Boards should discuss and better understand situations when discussions and evaluations can, and are, taking place in order to guard against unwittingly deliberating in private.
Who is an Agent?
The Hutchison Court states that “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 Court remanded the case to the district court to determine the nature and extent of the actual agency authority the Supervisors had granted the Administrator under the circumstances. While we await the analysis and conclusion of the district court on this point, it is useful to explore Iowa’s law on agency in order to better understand this concept.
In the majority opinion, the Court held that, in common law, there are generally two types of agents: those who have actual authority and those who have apparent authority. “Actual authority exists when a principal has expressly or by implication granted an agent authority to act on his or her behalf.” (citing Soults Farms v. Schafer, 797 N.W.2d 92, 102 (Iowa 2011)). The Court notes that it has never decided whether apparent authority exists in the context of municipal government and declined to address the issue now.
Actual authority is express authority to the extent that the principal has specified what the agent can and/or cannot do (such as through a bylaw provision or board resolution). See 6 MATTHEW G. DORE, IA. PRAC., BUS. ORG. § 29:10 (2015). Implied actual authority includes not only those powers that have been expressly given to the agent (e.g., through bylaws or resolutions), but also the agent’s reasonable interpretation of the principal’s consent, through contexts such as customs and relationships of the parties. Id.
In Hutchison, the Court acknowledges that “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.’” (citing Bunger v. Iowa High Sch. Athletic Ass’n, 197 N.W.2d 555, 555-60 (Iowa 1972)).
The district court on remand will determine whether the Supervisors, through writing or other conduct, gave the Administrator actual authority (either expressly or impliedly) to deliberate on their behalf. Traditionally, the following factors are evaluated by Iowa courts when determining agency by actual authority: an individual’s title or position, the nature of the transaction being conducted, the board’s usual course of business, customs of the industry, and past transactions by the board and who had authority to act for those past transactions. See Soults Farms, 797 N.W.2d at 99-102.
In the months ahead, we anticipate that the Iowa Public Information Board will consider seeking input and issuing advisory opinions addressing issues related to the establishment, and scope, of agency relationships in the context of Iowa’s open meeting laws.
In the meantime, governmental entities could evaluate the duties delegated to the non-elected individuals to ensure that the duties are only administrative or ministerial and do not involve any delegation of the elected official’s judgment or discretion.
In the third and final part of this series discussing the Hutchison v. Shull opinion, we will explore some actions that Boards may consider to protect themselves from challenges under the open meetings laws in light of this opinion.