Ombudsman says supervisors' discussion was close, but not 'illegal'

By STEPH TAHTINEN

Mt. Pleasant News

Although it was described as a ?close call,? the discussion held between the Henry County Board of Supervisors and Planning and Zoning Administrator Joe Buffington on Feb. 14, was not illegal, according to a letter the supervisors received Monday from the State of Iowa Citizens? Aide/Ombudsman office.

?I?m pleased to receive acknowledgement that the Iowa State Ombudsman Office agrees with our interpretation of the Open Meetings, Sunshine Laws,? commented Supervisor Chairman Kent White. ?As we?ve always stated, we make every effort to comply with the laws at all times. For those activists who are constantly seeking confrontation in the county, I hope they now realize that these laws are up for interpretation in many instances.?

White added, ?I hope Mr. Batey understands that we were in no way criticizing or belittling he and his family?s contributions to Henry County.?

According the letter signed by Bert Dalmer, assistant citizens? aide/ombudsman, dated June 15, the ombudsman?s office received several inquiries in May and June about the legality of the board?s discussion concerning Mt. Pleasant resident Robert Batey and the cross he erected on his property along Highway 218 just south of Mt. Pleasant, near Kentucky Avenue.

The discussion began when Buffington entered the supervisors? office to ?give them a head?s up? about a potential zoning issue with the large cross.

There was concern raised by citizens present at the meeting that the supervisors were in violation of Open Meetings/Sunshine Laws, as it was not a published agenda item and the cross was discussed at length. Then, on May 31, Batey attended the meeting with his legal council, which alleged that the discussion was illegal.

However, according to the letter received Monday, the supervisors were not in violation of the law.

The letter presents a lengthy summary of the discussion, referencing a YouTube video of the board meeting posted from a video of the meeting recorded by New London resident Ron Osborne.

The letter states that in order to be in violation of the Open Meetings/Sunshine Law, it must be shown that

? The board deliberated or acted on a matter

? The board had the authority to act

? The board intended to circumvent the law?s purpose

Dalmer wrote in the letter, ?Based on the totality of the evidence I have seen, I cannot find that all of these conditions existed and thus cannot substantiate the complaint that Henry County supervisors violated the Open Meetings Law on Feb. 14, 2012.?

Dalmer wrote that he was convinced the supervisors did engage in deliberation and tried to take action on the zoning matter; however, the last two criteria were not met.

The supervisors did not have the authority to act on the issue ? that responsibility fell to Buffington ? and Dalmer wrote that Buffington insisted he had planned to send the letter to Batey regardless of what the supervisors? input.

The supervisors? intent was also of major consideration, as Dalmer wrote that in order to be in violation of the law, the supervisors must have actually intended to avoid the purposes of the law.

Dalmer wrote, ?Buffington told me that it was his decision to approach the supervisors right after the meeting ? not theirs. Supervisors were also acutely aware that at least one local activist remained in the room during the discussion with his video recorder on ? and they took no action to remove him or to stop him from taping. This could indicate that there was no pre-planned intention by the Board to take action on the zoning matter outside of the public eye.?

Although this discussion was found not to be in violation of the law, Dalmer urged that the supervisors have caution in the future.

He wrote, ?However, I believe that the facts in this case made the legality of your actions a close call, and I urge the Board to exercise more caution in the future ? so long as the law exists as written, I believe it is incumbent upon you to take all reasonable steps necessary to avoid even an appearance of illegal meetings among you.?

Some suggestions Dalmer provided were having the county staff communicate with the supervisors via email or written memos; solely with the chairman, out of earshot of the other supervisors; as a group on an informational basis without deliberation among supervisors; in a public meeting with public notice of the subjects to be discussed.

Dalmer also suggested that the supervisors have separate offices or create a schedule so that only one supervisor is working in the office at a time when they are not in session.