Amended June 28, 2016 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

• Court: Supreme Court of Iowa
• Decided: March 18, 2016
• Docket: 14–1649
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 14–1649

Filed March 18, 2016

Amended June 28, 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

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 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, Administrator 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, Administrator 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 Administrator 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

Administrator 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 Administrator 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 Administrator 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 Administrator Furler as a

conduit. Individual supervisors deliberated separately with

Administrator Furler communicating between them. 7 The district court

never found that Administrator Furler deliberated in the place of a

supervisor; rather, Administrator Furler relayed information between

them. Administrator 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

Administrator 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

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

second bite at the apple under these circumstances is unfair to the

district court judge and to the defendants. Our practice until now has

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 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.

_______________________ 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 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.