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.