City of Postville, Iowa and Jason Meyer v. Upper Explorerland Regional Planning Commission, Martin Brennan, Kathy Campbell, Ray Whalen, Leon Griebenow, Andrew Wenthe, Karla Organist, Warren Steffen, Michael Kenedy, Janet McGovern, Dean Darling, Les Askelson, and Randy Uhl

IN THE SUPREME COURT OF IOWA
No. 12–1002
Filed June 7, 2013
CITY OF POSTVILLE, IOWA and JASON MEYER,
Appellants,
vs.
UPPER EXPLORERLAND REGIONAL PLANNING COMMISSION,
MARTIN BRENNAN, KATHY CAMPBELL, RAY WHALEN, LEON
GRIEBENOW, ANDREW WENTHE, KARLA ORGANIST, WARREN
STEFFEN, MICHAEL KENEDY, JANET McGOVERN, DEAN DARLING,
LES ASKELSON, and RANDY UHL,
Appellees.
Appeal from the Iowa District Court for Allamakee County,
Thomas A. Bitter, Judge.
A city and a citizen appeal from the district court’s grant of
summary judgment involving Iowa’s Open Meetings Act. DISTRICT
COURT DECISION AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED WITH DIRECTIONS.
Anne E.H. Loomis of Allen, Vernon & Hoskins, PLC, Marion, and
Charles R. Kelly Jr. of Charles Kelly Law Office, PC, Postville, for
appellants.
Thomas D. Wolle of Simmons Perrine Moyer Bergman PLC, Cedar
Rapids, and Carlton G. Salmons of Gaudineer, Comito & George, LLP,
West Des Moines, for appellees.
2
WIGGINS, Justice.
This matter involves a claim against a local governmental body and
its members for violating the Iowa Open Meetings Act (IOMA). The three
issues involved in this appeal are (1) whether a volunteer of a
governmental body is immune under Iowa Code section 28H.4 (2011) for
damages due to alleged IOMA violations; (2) whether the governmental
body’s meeting notices met the requirements of section 21.4(1); and (3)
whether a certain publication is a newspaper of general circulation, as
required by section 28E.6(3)(a). The local governmental body and its
members moved for summary judgment. The district court found no
genuine issue of material fact existed as to each issue. Thus, the district
court found the volunteers had immunity, the meeting notices satisfied
the requirements of section 21.4(1), and the newspaper used for
publication is a newspaper of general circulation pursuant to section
28E.6(3)(a). Accordingly, the district court dismissed the action. On
appeal, we affirm the district court’s grant of summary judgment on the
immunity issue as to damages a court can assess against the individual
members. We reverse the district court’s grant of summary judgment on
the reasonableness of the notice because a genuine issue of material fact
exists regarding whether the notice given was reasonable. We also affirm
the district court’s grant of summary judgment because no genuine issue
of material fact exists as to whether the publication is a newspaper of
general circulation, as defined by section 28E.6(3)(a). Finally, we find
any established violation of IOMA may require the court to void any
action taken under IOMA if the requirements of section 21.6(3)(c) are
proved.
3
I. Background Facts and Proceedings.
A. Facts. The Upper Explorerland Regional Planning Commission
is a body exercising public and essential government functions. Iowa
Code §§ 28H.1, .3. The Commission is organized under Iowa Code
chapters 28E and 28H. The Commission serves five counties: Allamakee,
Clayton, Fayette, Howard, and Winneshiek. Id. § 28H.1. Prior to the
acts at issue, the Commission had only one office located in Postville.
There are twenty-four commission members. None receive
compensation from the Commission or the county that appointed them
for attending the Commission’s meetings. However, three commission
members have salaries for full-time government positions, which require
them to serve on the Commission. Several other members receive
reimbursement for mileage.
In March 2009, the Commission appointed a team to study the
feasibility and cost of either expanding the Postville office or locating
alternative office space in any of the five counties served by the
Commission. The Commission met on August 19, 2010, at the Postville
office to discuss the expansion plan. The Commission unanimously
authorized individuals to engage in contract negotiations for the
purchase of prospective properties, including one in Decorah. The
Commission retained authority to approve the proposed contract.
On September 23, the Commission held another meeting. Sixteen
members attended. The meeting’s agenda included approving a contract
to purchase property in either Decorah or Postville. After lengthy
discussion, the proper motion was made to approve a proposed purchase
contract for the Decorah property. None of the attending members
contested a secret ballot vote and unanimously agreed to such a vote.
The members cast their ballots and then publicly counted the votes. The
4
motion to purchase the Decorah property carried with ten votes in favor
and six opposed.
It was not until after the September 23 vote that there was concern
about the propriety under IOMA of the secret ballot vote. The
Commission does not dispute that immediately after the meeting one of
the commission members told another member before leaving that there
was a problem with the ballot vote. The same night, this concern was
relayed to the Commission’s executive director.
The following Monday after the vote, all commission members
received an email indicating concern about the legality of the secret
ballot vote. After exchanging emails, several members proposed that if
the voting members revealed their vote and recorded their decision in the
minutes, then the Commission’s action would be legally appropriate.
For guidance in resolving the issue, the Commission contacted the
State Ombudsman’s Office, which recommended sending new written
ballots to each voting member. The Commission heeded this
recommendation and instructed each voting member to reaffirm their
vote and include their name on the ballot.
Of the sixteen original voting members, one abstained, another
returned the ballot unmarked, and a third did not return the ballot at all.
Six members changed their votes in the subsequent reaffirmation.
Despite this, the outcome remained the same with ten “yes” votes in
favor of purchasing the property in Decorah. The Commission
distributed revised minutes of the meeting, which listed the name and
vote of each member who was present for the September 23 meeting.
Other relevant facts are discussed below, as needed.
B. Proceedings. The City of Postville and Jason Meyer, a resident
and taxpayer of Allamakee County, filed their original petition on
5
October 18, 2010.1 After various amendments, the amended petition
contains fifty-one counts against the Commission, alleging various IOMA
violations.
Counts one and two assert the meeting on September 23, 2010,
when the vote by secret ballot occurred, and the Commission’s
subsequent reaffirmation of the vote by mail constituted improper closed
sessions lacking reasonable meeting notices. In counts three through
thirty-nine, the City alleges that the Commission conducted improper
closed sessions lacking reasonable notice for meetings from October 28,
1999, through August 19, 2010. The City claims the notices posted by
the Commission in the hallway of its offices did not constitute reasonable
notice. Counts forty through fifty detail charges that for the years 1999
through 2009, the Commission failed to comply with the annual
publication requirements in section 28E.6(3). Finally, count fifty-one
alleges a particular commission meeting was not reasonably accessible to
the public, as required by law, due to inadequate seating
accommodations.
In its answer, the Commission and its members admitted their
actions, as alleged in counts one and two, violated IOMA when the vote
by secret ballot occurred and the Commission reaffirmed the vote by
mail, but denied the rest of the allegations.
In its request for relief, the City sought from each individual
member of the Commission $500 per IOMA violation. The City also
requested the court order either the individual members or the
Commission pay its attorney fees. Other relief sought included voiding
the action taken at the closed session, enjoining the commission
1For clarity, the opinion refers to both plaintiffs as “the City.”
6
members from further violating the law, removing the eleven named
commission members from their positions, and nullifying and voiding all
actions taken by the Commission at any session violating IOMA. Thus,
the relief sought was against both the individual members of the
Commission and the governmental body as a whole.
On April 18, the Commission moved to file an amended answer to
the City’s amended petition. In the amended answer, the Commission
admitted that by taking a vote in writing with anonymity, the
Commission violated section 21.3 because each individual defendant was
required to state their vote in open session.
The Commission then moved to file a second amended answer to
the City’s amended petition in order to respond to the addition of count
fifty-one. In the second amended answer, the Commission added new
affirmative defenses, including mootness, state law immunity under
section 28H.4(2), and federal law immunity under the Volunteer
Protection Act of 1997 in 42 U.S.C. § 14503(a) (2006).
On November 14, the Commission filed its first motion for
summary judgment. Therein, the Commission once again admitted their
actions offended IOMA. Nonetheless, the Commission argued (1) the
individual members of the Commission are immune from liability under
the Federal Volunteer Protection Act and the state immunity provision in
section 28H.4(2); (2) the Commission as an entity is not liable for IOMA
violations due to the members’ immunity under section 28H.4(2); and (3)
counts one and two are moot because both the Commission and its
individual members are immune from liability.
The City resisted the motion for summary judgment with a
memorandum of law. Relevant to these proceedings, the City argued
there are disputed facts involving the reasonableness of the
7
Commission’s meeting notices and the Commission’s compliance with
the publication requirement in section 28E.6(3). The City did not brief
the immunity issue in its memorandum of law.
The Commission filed a motion to strike the City’s supplemental
memorandum of law and a reply brief. In its supplemental
memorandum of law, the City contended section 28H.4(2) “does not
provide blanket immunity to all members of a Council of Governments,
as the director and members may be personally liable for acts or
omissions which involve intentional misconduct or knowing violation of
the law.” Moreover, the City argued the Volunteer Protection Act is
inapplicable because it only immunizes tort liability, not damages for
IOMA violations.
The district court dismissed counts one through fifty in the City’s
second amended petition.2 The district court found there was no
genuine issue of material fact that the commission members did not
engage in intentional conduct or a knowing violation of the law.
Therefore, the district court dismissed counts one and two as to all
defendants. Moreover, the district court found the Commission complied
with the applicable meeting notice and publication requirements. The
district court did not rule on the immunity claim regarding the meeting
notice and publication requirements. Thus, the district court dismissed
counts three through thirty-nine regarding the reasonableness of the
meeting notices, as well as counts forty through fifty addressing the
publication requirements in section 28E.6(3)(a).
The City timely appealed.
2The Commission later filed a second motion for summary judgment on count
fifty-one. The proceedings arising from this motion are not relevant to the matter before
us because the City only appeals counts one through fifty.
8
II. Standard of Review.
We review a grant of summary judgment for correction of errors at
law. Minor v. State, 819 N.W.2d 383, 393 (Iowa 2012). The district court
properly grants a party’s motion for summary judgment if “there is no
genuine issue as to any material fact and . . . the moving party is entitled
to judgment as a matter of law.” Iowa R. Civ. P. 1.981(3); Zimmer v.
Vander Waal, 780 N.W.2d 730, 732–33 (Iowa 2010). To determine
whether the moving party met this burden, we examine the record in the
light most favorable to the nonmoving party. Minor, 819 N.W.2d at 393.
We afford the nonmoving party “every legitimate inference that can be
reasonably deduced from the evidence.” Bank of the W. v. Kline, 782
N.W.2d 453, 456–57 (Iowa 2010) (citation and internal quotation marks
omitted). The court should not grant summary judgment “if reasonable
minds can differ on how the issue should be resolved,” because a fact
question is generated in such instances. Id. at 457 (citation and internal
quotation marks omitted). Therefore, “our review is limited to the
determination of whether a genuine issue of material fact exists and
whether the district court applied the correct law.” Id.
We must interpret various statutes to determine the propriety of
the district court’s grant of summary judgment. The correction of errors
at law standard also applies when an appeal raises a question of
statutory interpretation. State v. Wiederien, 709 N.W.2d 538, 541 (Iowa
2006).
III. Immunity.
The Commission and its members admitted in their pleadings to
violating IOMA in counts one and two with respect to the September 23
meeting when the vote by secret ballot occurred and subsequently when
the Commission reaffirmed the vote by mail. Thus, the first question we
9
must answer is whether a volunteer of a council of government is
personally liable for IOMA violations pursuant to Iowa Code section
21.6(3).3 The commission members argued they are immune from
liability under the Federal Volunteer Protection Act and the state
immunity provision in Iowa Code section 28H.4(2). Furthermore, the
Commission asserted it is not liable as an entity for IOMA violations due
to the members’ immunity under section 28H.4(2).
A. Statutory Framework. To understand these claims, it is first
necessary to set forth the relevant state law provisions. IOMA provides
in pertinent part:
1. The remedies provided by this section against state
governmental bodies shall be in addition to those provided
by section 17A.19. Any aggrieved person, taxpayer to, or
citizen of, the state of Iowa, or the attorney general or county
attorney, may seek judicial enforcement of the requirements
of this chapter. . . .
....
3. Upon a finding by a preponderance of the evidence
that a governmental body has violated any provision of this
chapter, a court:
a. Shall assess each member of the governmental
body who participated in its violation damages in the
amount of not more than five hundred dollars nor less than
one hundred dollars. These damages shall be paid by the
court imposing it to the state of Iowa, if the body in question
is a state governmental body, or to the local government
involved if the body in question is a local governmental body.
A member of a governmental body found to have violated this
3The City failed to raise on appeal that the three members who have salaries for
full-time government positions requiring them to serve on the Commission were not
volunteers under Iowa Code section 28H.4(2) (2011). Therefore, we will not reach this
issue and assume for purposes of this appeal they were volunteers covered by section
28H.4(2). See City of Asbury v. Iowa City Dev. Bd., 723 N.W.2d 188, 198 (Iowa 2006)
(holding when a party fails to articulate a claim in its brief, the party waives the
argument on the issue).
10
chapter shall not be assessed such damages if that member
proves that the member did any of the following:
(1) Voted against the closed session.
(2) Had good reason to believe and in good faith
believed facts which, if true, would have indicated
compliance with all the requirements of this chapter.
(3) Reasonably relied upon a decision of a court or a
formal opinion of the attorney general or the attorney for the
governmental body.
b. Shall order the payment of all costs and reasonable
attorney fees in the trial and appellate courts to any party
successfully establishing a violation of this chapter. The
costs and fees shall be paid by those members of the
governmental body who are assessed damages under
paragraph “a”. If no such members exist because they have
a lawful defense under that paragraph to the imposition of
such damages, the costs and fees shall be paid to the
successful party from the budget of the offending
governmental body or its parent.
c. Shall void any action taken in violation of this
chapter, if the suit for enforcement of this chapter is brought
within six months of the violation and the court finds under
the facts of the particular case that the public interest in the
enforcement of the policy of this chapter outweighs the
public interest in sustaining the validity of the action taken
in the closed session. . . .
Iowa Code § 21.6.
Generally, Iowa law makes members of governmental bodies
subject to liability for IOMA violations. See Barrett v. Lode, 603 N.W.2d
766, 768 (Iowa 1999) (recognizing only a member of a governmental
body’s board, council, commission, or other governing body of a political
subdivision or tax-supported district is subject to IOMA). It is
undisputed the individuals serving on the Commission qualify as
members of a governmental body and thus, are subject to IOMA. Id.;
Iowa Code § 21.2(1).
11
However, Iowa Code section 28H.4(2) rebuffs this imposition of
personal liability by broadly immunizing citizens who volunteer to serve
on councils of governments. Section 28H.4(2) provides in relevant part:
A director, officer, employee, member, trustee, or volunteer is
not personally liable for a claim based upon an act or
omission of the person performed in the discharge of the
person’s duties, except for acts or omissions which involve
intentional misconduct or knowing violation of the law, or for
a transaction for which the person derives an improper
personal benefit.
Thus, a volunteer is not personally liable, unless (1) the person’s actions
involve intentional misconduct or a knowing violation of the law or (2) the
person derived improper personal benefit from the act or omission.
Accordingly, this is a broad immunity provision applying to any act or
omission of any volunteer serving on any council of government.
B. Analysis. In the district court, the City admits the members of
the Commission are immune unless their actions or omissions involved
“intentional misconduct” or a “knowing violation” of IOMA. It argued in
the district court that a genuine issue of material fact existed as to
whether there was intentional misconduct or a knowing violation of
IOMA. The district court found no genuine issue of material fact existed
as to these issues. We agree.
“Intentional misconduct” requires more than a reckless disregard
for the law. See Woodruff Constr. Co. v. Mains, 406 N.W.2d 787, 790
(Iowa 1987) (distinguishing between reckless disregard and intentional
misconduct in tort law). A “knowing violation” requires a deliberate or
conscious act. See Black’s Law Dictionary 950 (9th ed. 2009) (defining
“knowing” as “[d]eliberate; conscious”).
On our review of the record, we find no evidence to show the
actions of the members of the Commission amounted to intentional
12
misconduct or a knowing violation of IOMA. Instead, the record shows
the members did not identify an issue with the secret ballot vote until
after its completion. Upon identifying the problem, the commission
members self-policed their actions, engaged in repeated conversations
amongst themselves regarding the issue and potential corrective
measures, contacted state authorities at the ombudsman’s office for
advice, and then undertook the recommended remedial action in a timely
manner with the reaffirmation vote and distribution of minutes including
the names of the members and their respective voting decision. Such
actions demonstrate a desire to comply with the requirements of IOMA,
not sidestep the statute. Therefore, we find there is no genuine issue of
material fact as to any intentional misconduct or a knowing violation of
IOMA by the members of the Commission. We need not discuss whether
there is immunity afforded under federal law because we conclude the
individual members are immune under state law.
On appeal, the City makes an additional argument that the
immunity provided by section 28H.4(2) does not apply to liability created
by volunteers violating IOMA. The City did not make this argument in
the district court. We do not decide issues presented to us on appeal
that a party did not present to the district court. DeVoss v. State, 648
N.W.2d 56, 60 (Iowa 2002). Thus, we will not reach the issue whether
section 28H.4(2) applies to liability created by volunteers violating IOMA
and leave it for another day. Accordingly, we affirm the district court’s
grant of summary judgment on the immunity issue because we find
section 28H.4(2) exempts volunteers serving on councils of governments
from personal liability under this record. Accordingly, the district court
13
was correct to dismiss counts one and two of the petition on the
immunity issue as to the individual members’ liability for damages.4
IV. Posting of the Meeting Notices.
In counts three through thirty-nine, the City alleges the
Commission conducted improper closed sessions lacking reasonable
meeting notice from October 28, 1999, through August 19, 2010. The
City bases this claim on the fact the Commission posted its meeting
notice on a bulletin board located in the hallway of the Commission’s
Postville office. The bulletin board is approximately thirty to forty feet
from the main public access door. The bulletin board is not visible from
the entrance door to the office. The office is open to the public Monday
through Friday from 8:00 a.m. until 4:30 p.m. These facts are
undisputed in this record.
A reasonableness standard applies to the notice requirements for
government meetings. During the relevant time period, section 21.4(1) of
IOMA provided: “A governmental body . . . shall give notice of the time,
date, and place of each meeting and its tentative agenda, in a manner
reasonably calculated to apprise the public of that information.” Iowa
Code § 21.4(1) (emphasis added). One statutorily prescribed method for
providing reasonable notice is to
post[] the notice on a bulletin board or other prominent place
which is easily accessible to the public and clearly
designated for that purpose at the principal office of the body
holding the meeting, or if no such office exists, at the
building in which the meeting is to be held.
4The court also dismissed the claim against the Commission in counts one and
two. The City did not argue on appeal that the Commission can be found to violate the
Open Meetings Act even though the members may have immunity. See Iowa Code
§ 21.6(3)(b) (recognizing that if the members of a governmental body are immune,
damages, costs, and fees may be assessed against the governmental body). Thus, we
will review the district court’s dismissal of the Commission as to counts one and two.
14
Iowa Code § 21.4(1) (emphasis added); see generally Steve Stepanek, The
Logic of Experience: A Historical Study of the Iowa Meetings Law, 60
Drake L. Rev. 497, 519 (2012).
These notice requirements are not mere formalities. Op. Iowa Att’y
Gen. No. 81–7–4(L) (July 6, 1981), 1981 WL 178383, at *4. Chapter 21 is
a critical mechanism for ensuring government transparency.
KCOB/KLVN, Inc. v. Jasper Cnty. Bd. of Supervisors, 473 N.W.2d 171,
173 (Iowa 1991) (noting advance notice of the content of a public meeting
is not the primary purpose of chapter 21). The goal of these laws is to
ensure “ ‘the basis and rationale of governmental decisions . . . are easily
accessible to the public’ ” in order to prevent councils of governments
from becoming secret or star chambers. Id. (quoting Iowa Code § 21.1);
Dobrovolny v. Reinhardt, 173 N.W.2d 837, 840–41 (Iowa 1970).
Substantial compliance with the statute is all that is required.
KCOB/KLVN, Inc., 473 N.W.2d at 176.
The issue is whether the placement of the notice in the hallway is a
“prominent place which is easily accessible to the public and clearly
designated for that purpose at the principal office of the body holding the
meeting” as a matter of law, or if a genuine issue of material fact exists
as to whether placement of the notice substantially complied with the
requirements of section 21.4(1). See Iowa Code § 21.4(1).
The secretary posted the notice on the board at least five days in
advance of each meeting. However, the public generally does not utilize
the hallway where the bulletin board is located, unless the individual has
an appointment or uses the restroom.
Although, the Commission offered some germane evidence, it failed
in its motion for summary judgment to establish there was no genuine
issue of material fact the public had reasonable access to the bulletin
15
board. We do not know how often the public uses the hallway or if the
board and its contents are visible from the reception area. Accordingly,
the district court should have denied summary judgment on the notice
issue because there is a genuine issue of material fact regarding the
reasonableness of the notices.
The district court did not rule on the immunity issue regarding the
meeting notice counts of the petition. We find the record is insufficient
for us to rule on this issue. Moreover, even if the members of the
Commission have immunity, there is a legal question as to whether that
immunity extends to the Commission. See Iowa Code §§ 21.6(3)(b)
(recognizing that if the members of a governmental body are immune,
damages, costs, and fees may be assessed against the governmental
body), 28H.4 (providing immunity to the members, not the council of
governments). Therefore, we remand this issue to the district court for
further proceedings consistent with this opinion.
V. Publication in a Newspaper of General Circulation.
Beginning in 2007, the Commission started publishing the names
and salaries of its members in the Oelwein Daily Register. The Register is
a daily newspaper with distribution in the Commission’s five-county
region and the ability to publish information within ten days. There are
1982 individual subscriptions to the Register—1529 for Fayette County,
46 for Clayton County, and 5 for Allamakee County. For business
subscriptions, there are 319 for Fayette County but none for Allamakee,
Clayton, Howard, or Winneshiek Counties. There are no individual or
business subscriptions for either Winneshiek or Howard Counties.
To ensure accountability, councils of governments must annually
publish the “names and gross salaries of persons regularly employed by
the entity.” Iowa Code § 28E.6(3)(a); see Iowa Code §§ 28H.5, 28E.1,
16
28E.6 (describing councils of governments); 2006 Iowa Acts ch. 1153, § 7
(adding the publication requirement in 2006 through “[a]n Act relating to
government accountability”). Publication of this information must occur
in “one newspaper of general circulation within the geographic area
served by the joint board of the entity.” Iowa Code § 28E.6(3)(a).
The City contends the Register is not a newspaper of general
circulation. The district court found there is no genuine issue of material
fact concerning whether the Register is a newspaper of general
circulation. We agree and affirm the grant of summary judgment on this
issue.
First, the statute only requires publication in one newspaper. Id.
Thus, the legislature expressly stated it is not necessary to publish in
multiple newspapers within a single geographic area. Moreover, it is not
necessary to publish using a newspaper outside the geographic region.5
Second, we must analyze whether the Register is a newspaper of
general circulation. Id. A “newspaper of general circulation” is a
publication that “contains news and information of interest to the general
public, rather than to a particular segment, and that is available to the
public within a certain geographic area.” Black’s Law Dictionary 1141
(emphasis added). The newspaper need only contain some news of
general character and interest to the community, even though the
newspaper may also be of particular interest to a specific class of
individuals. Burak v. Ditson, 209 Iowa 926, 930, 229 N.W. 227, 228
(1930) (finding a newspaper specializing in legal news, but containing
If a newspaper within the community refuses to publish the notice, then the
5
publication can occur in a newspaper published “outside the district but which has
general circulation within the district.” Op. Iowa Att’y Gen. No. 88–12–3(L) (Dec. 9,
1988), 1989 WL 411501, at *2.
17
some general news, with subscribers of various occupations was a
newspaper of general circulation). The City does not challenge the
sufficiency of the Register based on its content.
The fighting issue is whether the newspaper is available “within the
geographic area served by the joint board of the entity.” Iowa Code
§ 28E.6(3)(a). This is a factual inquiry. Op. Iowa Att’y Gen. No. 88–12–
3(L) (Dec. 9, 1988), 1989 WL 411501, at *1. When determining whether
the newspaper has a sufficiently broad circulation within the region, the
ultimate consideration is whether publication in that newspaper fulfills
the purpose underlying this statute and other similar provisions—to give
notice to the general public. Id.
We reject the City’s challenges that a genuine issue of material fact
exists as to the adequacy of the Register as a newspaper of general
circulation based upon the breadth of its circulation. The City alleged
the Register is not a newspaper of general circulation because it does not
serve the entirety of the Commission’s five-county area. However, the
City does not contend a newspaper of general circulation must cover all
five counties.
The undisputed record establishes there is no single newspaper
available that has subscriptions in all five counties within the
Commission’s service region. However, the Commission specifically
selected the Register to publish its meeting minutes, and subsequently,
the annual report of the members’ names and salaries, because it is the
only daily newspaper serving the five-county area. Thus, the Register
complies with the statute in serving the same area as the Commission.
Iowa Code § 28E.6(3)(a).
The City seems to rely on the fact the Register is available for
subscription in the Commission’s five-county area, but no one
18
subscribes in certain counties within that region. Therefore, the City
contends the Register fails to reach a diverse population within the
Commission’s five-county region because there are no individual
subscriptions in either Winneshiek or Howard Counties. Moreover, there
are no locations for the general public to purchase the Register in four of
the counties served by the Commission—Allamakee, Clayton, Howard,
and Winneshiek. This means Winneshiek County lacks any individual or
business subscriptions.
This is essentially a numbers argument. A newspaper of general
circulation is not determined by the number of its subscribers, but by its
diversity. Burak, 209 Iowa at 930, 229 N.W. at 228; Op. Iowa Att’y Gen.
No. 88–12–3(L) (Dec. 9, 1988), 1989 WL 411501, at *1. The numbers
argument is not persuasive.
More compelling is the fact the Register serves the same area as
the Commission. By having subscriptions in all but one county of the
Commission’s five-county region, the purpose of the publication
requirement is fulfilled—individuals within the area served by the
Commission have notice of the members’ names and salaries.
We find there is no genuine issue of material fact on this issue.
The Register has sufficiently diverse subscriptions within the area served
by the Commission to qualify as a newspaper of general circulation
under section 28E.6(3)(a). Accordingly, we affirm the district court’s
grant of summary judgment.
VI. Conclusion.
We affirm the district court’s grant of summary judgment as to
counts one and two on the immunity issue as to the individual members’
liability for damages because under this record, we find no genuine issue
of material fact as to whether the members’ actions involved intentional
19
misconduct or a knowing violation of the law. On the notice issue, we
find a genuine issue of material fact exists as to whether placing the
notices of meetings on the bulletin board in the hallway complied with
IOMA under section 21.4(1). Therefore, we remand this issue to the
district court for further proceedings. Finally, we affirm the district
court’s grant of summary judgment on the newspaper’s status as one of
general circulation in accordance with section 28E.6(3)(a). On remand,
the district court shall determine if the City is entitled to any attorney
fees and costs for this appeal and in any subsequent proceedings in the
district court under IOMA pursuant to Iowa Code section 21.6(3)(b).
DISTRICT COURT DECISION AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED WITH DIRECTIONS.