IN THE COURT OF APPEALS OF IOWA
No. 15

- 1837 Filed December 21, 2016

JAMES W. OLINGER and LARRY C. MEYER, Plaintiffs

- Appellants/Cross

- Appellees,

vs. ROBERT SMITH, WALTER UTMAN, GAYLORD PITT, HARRISON COUNTY, IOWA, and UTMAN DRAINAGE DISTRICT, Defendants

- Appellees/Cross

- Appellants.

________________________________________________________________ Appeal from the Iowa District Court for Harrison County, James M. Richardson , Judge.

The p laintiffs appeal various aspects of the district court’s o rd er and judgment on their claim the d efendants violated the Iowa Open Meetings Act.
The d efendants cross

- appeal. AFFIRMED IN PART , REVERSED IN PART,
AND REMANDED

.

Jessica A. Zupp of Zupp & Zupp Law Firm, P.C. , Denison , and Allen K. Nepper of Nepper La w Firm, Denison, for appellants /cross

- appellees

. Sasha L. Monthei of Scheldrup Blades, Cedar Rapids, for appellees /cross

appellants

.

Heard by Vogel, P.J., and Tabor and Mullins, JJ.2

MULLINS, Judge. James Olinger and Larry Meyer appeal various aspects of the district court’s ord er and judgment on their claim the trustees of the Utman Drainage District violated the Iowa Open Meetings Act (IOMA)

. The d rainage d istrict and its t rustees cross - appeal. We affirm in part, reverse in p art, and remand

. I. Background Facts and Proceedings In its order and judgment, the district court summariz ed the following relevant facts:

[Olinger and Meyer] are reside nts of Harrison County, Iowa.

. . . Robert Smith, Walter Utman, and Gaylor d Pitt are e lected members of the Harris on County Board of Supervisors w ho act as the trustees of the Utman Drainage District. Elizabeth Lenz has b een the drainage clerk for the Utman Drainage District for more than [twenty] years. Ms. Lenz acted as a liaison betwee n the t rustees and legal counsel. She would gather information from legal c ounsel and pass it on to the t rustees as issues arose.

. . . During the fall of 2013, a levy became a hotly contested issue in Harrison County, Iowa. [Olinger and Meyer] in a dif ferent cause of action filed for a writ of mandamus. . . . On or about November 4, 2013, counsel for [the] plaintiffs sen t a threatening letter to the [t rustees]. This letter threatened certain legal ramification s if certain actions were not taken prior to November 15, 2013

. . . . The Harrison County board of supervisors meets weekly

. . . . At th eir weekly . . . meeting on November 7, 2013, the matter of the drainage district litigation came up. Based upon advice given by counsel to Ms. Lenz, it was determined any discussion of the litigation should not be in a n open meeting. . . . [T]he t rustees entered a closed session to discuss litigation for approximately [three] minutes. The subject discussed was the November 4, 2013 letter threatening legal a ction. . . . No specific action was discussed. As it pertains to the payment of court costs requested in the previous litigation, the transcript of the November 4 closed meeting session indicates that the court had not yet assess[ed] t he cost and as a re sult, the t rustees all agreed to wait on any action. Similarl y, on November 14, 2013, the t rustees went into closed session to discuss threatened litigation for approximately3 [six] minutes. No specific action was discussed. Again, this was pursuant to l egal advice given by counsel to t he t rustees through Ms. Lenz. On November 25, 2013, Olinger and Smith filed a petition alleging both closed sessions were held in violation of IOMA , as provided in Iowa Code chapter 21 (2013)

. Olinger v. Smith , No. 14

- 075 1, 2015 WL 1331269 , at *1 (Iowa Ct. App. Mar. 25, 2015)

. Olinger and Smith then “ filed a motion seeking an in camera inspection of the recording of the closed sessions.” Id. ; see also Iowa Code § 21.5(4) (providing for in camera inspection). After the i nspection, the district court determined Olinger and Smith were entitled to access the recording of the November 7 meeting but the November 14 recording should not be released. Olinger

, 2015 WL 1331269 , at *1

. Having found the recording from
the November 7 meeting must be disclosed, the district court invoked Iowa Code section 21.6(3)(a) and ordered each t rustee to pay a $100 fine. Id. The court later suspen ded the fine in the event each t rustee purchased an “Open Meetings, Open Records” handbook. Id. Olinger and Smith filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2) , asserting the district court’s order should have been limited to the in camera motion; the district court summarily denied the motion. Olinger and Smith appealed. This court reversed on appeal, finding the district court erred by prematurely assessing damages without exp ressly determining whether the
t rustees knowingly violated IOMA, by failing to allow the t rustees an opportunity to present defenses, by suspending the f ine without statutory authority, and by failing to address whether Olinger and Smith were entitled to attorney fees. Id. at *3. Based on the t rustees ’ admission counsel for the drainage d istrict was not4

present at either meeting, t his court further clari fied “a closed session under Iowa Code section 21.5(1)(c) requires the presence of counsel at the meeting in order to satisfy the requirement ‘to discuss strategy with counsel.’” Id. at *7 (footnote omitted). On appeal, it is undisputed by the parties th at counsel was not present during the November 7 and 14 gatherings. Upon remand, trial was held. The district court’s order did not explicitly
state a violation of the act occurred. Instead, the district court found: (1) “a
clo sed meeting occurre d,” (2) the t rustees entered into the closed meetings on advice of counsel, (3) “the t rustees intended to fully comply with all aspects of the open meet ing law,” (4) the “t rustees substantially complied wit h the open meetings statute on b oth November 7 and 14,” a nd (5) “[w]hether or not a violation occurred, the [ t rustees] ha[ve] met all burdens in establishing their actions were made in good faith in attempting to comply with the open meetings statutes.” Having made these findings, the district court imposed a f ine up on the drainage d istrict

— concluding the t rustees were not individually liable based on their “good faith” defense

— and taxed the drainage d istrict with costs including
p laintiffs’ attorney fees, as reduced by the district court. Following Olinger and Smith’s rule 1.904 (2) motion to amend or enlarge, the district court entered an amended ruling elimin at ing the fine imposed upon the drainage d istrict. Olinger and Smith appeal; the drainage district and its
trustees cross - appeal.
II. Standard s and Scope of Review “Actions to enforce the open meetings law are ordinary, not equitable, actions.” Hutchison v. Shull , 878 N.W.2d 221 , 229 (Iowa 2016). “In such5

actions, we accord a trial court’s factual findings the same degree of deference
we accord a jury’s special verdict.” Id. (citing Iowa R. App. P. 6.907). “Thus, factual findings by the trial court are binding if substantial evidence supports them.” Id

. “Substantial evidence supports a factual finding when the finding ‘may
be reasonabl y infe rred from the evidence presented.’” Id. at 229

– 30 (quoting Vaughan v. Must, Inc. , 542 N.W.2d 533, 538 (Iowa 1996)). Our review is for correction of errors at law. See T el

. Herald, Inc. v. City of Dubuque , 297 N.W.2d 529, 533 (Iowa 1980). We review the a ward of attorney fees for an abuse of discretion. See Schumacher v. Lisbon Sch. Bd. , 582 N.W.2d 183, 186 (Iowa 1998).
III. Analysis
A. IOMA Violation Iowa Code section 21.1 “seeks to assure, through a requirement of open meetings of governmental bodies, that the basis an d rationale of governmental decisions, as well as those decisions themselves, are easily accessible to the people.” In furth erance of this purpose, “[a]mbig ui t y in the construction or application of [ IOMA ] should be resolved in favor of o penness.” Iowa Code § 21.1. The initial burden rests with the party seeking judicial enforcement of IOMA to “demonstrate[] to the court that the body in question is subject to the requirements of [ IOMA ] and has held a closed session.” Id. § 21.6(2). Once the claimant has done so, “the burden of going forward shall be on the body and its members to demonstrate compliance with the requirements of [ IOMA ].” Id.6

There is no dispute the drainage d istrict and its t rustees are subject to the requirement s of IOMA

. The Iowa Code provides that “ [ m ] eetings of governmental bodies,” such as the drainage d istrict, “shall be held in open session unless closed sessions are expressly permitted by law.” Id. § 21.3. An

“ [ o ] pen session” is defined as “a meeting to which all members of the public have access.” Id. § 21.2(3). The code, in turn, defines “ [ m ] eeting” to mean a gathering in person or by electronic means, formal or informal, of a majority of the members of a governmental body where there is deliberatio n 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 in tent to avoid the purposes of this chapter. Id. § 21.2(2). A closed session may lawfully be held under certain enumerated exceptions. See id. § 21.5. On the initial appeal, the exception forwarded by the drainage d istrict was section 21.5(1)( c), which provides a closed session can be held “[t]o discuss strategy with counsel in matters that are presently in litigation or where litigation is imminent where its disclosure would be likely to prejudice or disadvantage the position of the government al body in that litigation.” However,
the drainage di strict conceded no attorney was present at these meetings, a prerequisite this court determined was needed for section 21.5(1)(c) to apply. Olinger , 2015 WL 1331269, at *3. There is no dispute the Nov ember 7 and 14 gatherings were “closed” to the public. Instead, the drainage district and its trustees argue the gatherings

— even though closed

— did not constitute “meetings” under section 21.2(2). They further argue they “substantially complied” with IOMA ’s requirements and thus no7

violation occurred. Finally, th e t rustees argue, even if a violation did occur, they are not subject to damages based upon the defenses found in section 21.6, namely , that they “[h]ad good reason to believe and in good faith be lieved facts which, if true, would have indicated compliance with all the requirements of [IOMA].” Iowa Code § 21.6(3)(a)(2).

B. Meeting On appeal, the drainage district and its trustees first argue there was no meeting held within the statutory meaning of Iowa Code section 21.2. As an initial matter, we note neither the drainage district nor its trustees appeal ed the district court’s implicit finding in its March 4, 2014 ruling that the November 7 and November 14 gatherings were meetings. See generally Ol inger , 2015 WL
1331269 , at *1

. 1 However, this court vacated the district court’s findings insofar as they exceeded the scope of the limited matter actually before the district
court

— whether the drainage district and its trustees were required to disclose the recordings of the two November gatherings. Id. at *8. Further, the issue was subsequently litigated before and decided by the district court in its September 29, 2015 order and judgment; thus, we will address this claim on its merits. The district co urt found “[t]he Harrison County board of supervisors meets weekly ” and “ [t]he individual members of the Harrison County Board of Supervisors also serve as the trustees for the Utman Drainage District.” The

1 Olinger and Meyer contend this argument was not preserved because the drainage district and its trustees admitted the events at issue were meetings in their answer to the petition. Paragraph 13 of the petition states , “The meeting at the Board of Supervisors’ meeting room on November 7, 2013 and November 14, 2013, constitute a ‘meeting’ under Iowa Code § 21.2(2).” This paragraph was denied by the drainage district and its trustees . We find the issue was preserved

.8

events at issue arose “[a]t their weekly Harrison County Board of Supervisors meeting.” The drainage district and its trustees contend this weekly, scheduled meeting was not a “meeting” under chapter 21 because there was no “deliberation or action” and “no intent to avoid the purposes” of IOMA. “Deliberation generally involves ‘discussion and evaluative processes in arriving at a decision or policy. ’ ” Hutchison , 878 N.W.2d at 232 n.1 (quoting Hettinga v. Dallas Cty. Bd. of Adjustment , 375 N.W.2d 293, 295 (Iowa 1985)). “[A] gathering may be ‘pu rely 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”; however, “ministerial activities may develop into deliberation if the members of a governm ental body ‘engage in any discussion that focuses at all concretely on matters over which they exercise judgment or discretion.’” Id. (citation omitted).
While the drainage district and its trustees contend no deliberation or action occurred, the district court found and the record supports that, at the November 7, 2013 meeting, “the t rustees entered a closed session to discuss litigation for appro ximately [three] minutes”; the t rustees discussed the letter received from Olinger and Meyer threaten ing legal action

— specifically addressing who had rece ived the letter; and “the t rustees all agreed to wait on any action” with regard “to the payment of court costs requested in the previous litigation.” The drainag e d istrict’s own meeting notes indicate the t rustees “discuss[ed] the litigation against the [drainage d istrict ] .” The transcript from the
closed session demonstrates the t rustees discussed how to respond to the letter9

threatening litigation and how to re spond to the demand for payment of costs. 2
The t rustees’ deliberation and decision not to act was more than a gathering to “receive information” and constitutes a “deliberation or action” within the meaning of section 21.2 (2)

. 3
There is less evidence ava ilable regarding what occurred during the November 14 meeting . The drainage d istrict’s notes from the November 14 gathe ring indicate the t rustees “entered into close d session to discuss the possible litigation against the [drainage] district,” a descripti on adopted by the district court in its ruling. It is apparent the t rustees, in some manner, discussed the threatened litigation. F ol lowing the closed session, the t rustees hired outside counsel for the drainage d istrict. The drainage district and its trustees reference numerous cases in support of their contention the gatherings did not constitute meetings

— all of which are distinguishable. They rely on Gavin v. City of Cascade , 500 N.W.2d 729 (Iowa Ct. App. 1993). In Gavin , the district court found, and our court affirmed, that a genuine issue of fact existed as to whether a meeting was held when two council

2 The t rustees claim there is no indication they went into closed session to discuss the court costs. Contrary to this contention, the majority of the discussion held on November 7 pertained to the court costs , not the letter received from Olinger and Meye r

. Further, Utman testified he belie ved it was appropriate for the t rustees to go into a closed session to d iscuss the letter from Olinger and Meyer and the court costs from the previous litigation. Further, chapter 21 specifically precludes discussion o f any topics in closed sessions that did not serve as a basis for entering into a closed session. See Iowa Code § 21. 5 (2) (“A governmental body shall not discuss any business during a closed session which does not directly relate to the specific reason an nounced as justification for the closed session.”). Thus, by discussing the court costs, the trustees presumably intended it to serve as a basis for entering into a closed session. 3 We note, however, while section 21.2(2) defines a “meeting,” section 21. 5(3) provides “[f]inal action by any government body on any matter shall be taken in an open session unless some other provision of the Code expressly permits such actions to be taken in closed session.” Iowa Code §§ 21.2(2), .5(3).10

members met at an excavation s ite with the excavator and contacted two other council member s by phone before giving t he excavator approval to conduct certain work at the cit y’s expense. 500 N.W.2d at 730

– 31. Our court also affirmed the district court’s finding no meeting had occurred on a separate occasion whe n there was never a majority of the council present, as stat utorily required to constitute a meeting. Id. at 732. Finally, our court considered whether a meeting was held when three of the council members went to view some rock one of the council members was considering purchasing. Id. Our
court found “no evide nce any deliberation or action took place when the men met at the rock” and there was “no evidence of any intent to avoid the purpose s of chapter 21.” Id. This case is distinguishable because in Gavin the gathering was not a structured, routinely held me eting of the council where council business was discussed and action was taken. This was simply three council members viewing some rock in order to consider later whether a purchase should be made
at some future date. Id. Similarly, in Dooley v. Johnson County Board of Supervisors , No. 08

- 0195, 2008 WL 5234382, at *1 (Iowa Ct. App. Dec. 17, 2008), the Johnson County Board of Supervisors contracted with a party to study the issue of whether to develop a new road through part of Johnson County. Following a preliminary recommendation, the contractor met with the board members in groups of two to discuss the preliminary report and acquire their input. Dooley , 2008 WL 5234382, at *2. The court of ap peals noted it was a close case but found no deliberation o r action was discussed, as the gatherings simply provided the board members the opportunity to obtain information and clarification from11

the contractor about the preliminary report. Id. at *4

– 5. However, the court of appeals noted it “believe[d] that the board’s decision to review the draft in this fash ion was a poor one,” that the “purpose [of the gatherings] appears dangerously close to ‘deliberation,’” and cautioned the board about its statutory obligations. Id. at *5. The court did not reach the iss ue of whether a majority of the board was present and whether there was any intent to avoid the purposes of IOMA

. Id. at * 4

– 5. Again, here, the t rustees met and entered into closed sessions during routine meetings of the drainage d istrict to discuss the pending litigation and demand for court costs ; they were not simply gatherings to obtain information.
In Hettinga , 375 N.W.2d at 294, a majority of board members met privately with the county attorney prior to a scheduled meeting to dis cuss a zoning ordinance

. In finding no “meeting” occurred, the court of appeals reasoned : All parties who were in that adjoining room testified that merits of the case were not mentioned and only the a pplicable law was discussed. It further does not a ppear that an y member of the board intended to violated chapter 21. Based on this record, we hold that the provisions of chapter 21 were not violated because no deliberation or action regarding board policy

- making occurred during the gathering. The gathe ring was solely for the purpose t o elicit a clarification of a point of law fr o m the county attorney. Hettinga , 375 N.W.2d at 295. Again , here, this was not a circumstance in which a gathering occurred prior to a scheduled meeting. This was a scheduled meeting. The discussion was not with a county attorney for fact

- gathering ; it was

a discussion of the board members about what action

— if any

— to take.
In Mason v. Vision Iowa B oard , 700 N.W.2d 349, 356 (Iowa 2005), the Iowa Supreme Court determined no mee ting had occurred because the12

committee at issue had no authority to decide the issues at hand , only to make recommendations to the board about what course of action to take. Because the board was the actual decision maker, and the committe e did not have or exercise any policy

- making duties, no meeting was held. Mason , 700 N.W.2d at 357. This is not a circumstance in which the trustees were constrained to function only in an “advisory function,” as was the case in Mason

. See id. at 358. Finally, the drainage district and its trustees rely upon KCOB/KLVN, Inc. v. Jasper County Board of Supervisors , 473 N.W.2d 171 (Iowa 1991). In KCOB , the claimants challenged the sufficiency of the notice of certain meetings . 473 N.W.2d at 173

– 75. N otice is not at i ssue here. The c laimants also alleged a budget session constituted a meeting under chapter 21; but the supreme court noted the claimants failed to challenge the district court’s finding that no policy

making occurred at the gatherings. Id. at 175. The c laimants then challenge d the method by which a closed session was held. Id. at 175

- 76. Notably, the dispute was not whether the closed session constituted a meeting. The supreme court affirmed the district court’s finding the board “substantially compli ed” with its obligations under section 21.5(2) (providing the means by which a closed session can be held) and only “procedural irregularit[ies]” occurred. Id. at 176. Finally, the supreme court affirmed the district court’s ruling the claimants otherwis e failed to prove any other gathering

— let alone meeting for statutory purposes

— ever occurred. Id. at 176

- 78. Collectively, these cases do not support the drainage district and its trustees’ cont ention that no meeting occurred. Further, the Iowa Code de fines “open session” to “mean[] a meeting to which all members of the public have access.” Iowa Code § 21.2(3) (emphasis13

added). Section 21.3 provides “[ m ] eetings of governmental bodies . . . shall be held in open session unless closed sessions are expre ssly permitted by law.” Id. § 21.3 (emphasis added). Here, the t rustees explicitly voted to hold closed session s under section 21.5, which indicates their own determination that the gathering s constituted meeting s

. 4 Likewise, they recorded the sessions and kept meeting notes as required by section 21.5(4)(a) and provided notice of the meeting s as required by section 21.4

. In its holding, the district court determined, It is clear from the record that defendants considered this gathering to be a meeting governed by the open meetings law. Their actions voting to close as well as keeping a record supports this conclusion. Decisions simply to wait or to further contact legal counsel were made. This Court concludes, as did the individual trustees, that a closed meeting occurred. We find substantial evidence supports the district court’s conclusion and affirm.

C. Substantial Compliance Having found a governmental body held meeting s that w ere closed, the burden rests with the governmental body to demonstrate it satisfied the requirements of IOMA. Id. § 21.6(2)

. The trustees first argue they “substantially complied” with IOMA, noting the district court’s repeated findings to that effect. We acknowledge the district court’s finding of substantial compliance i s inconsistent with its finding of a violation. Thus, we next consider whether the district court’s finding of “substantial compliance” was correct

.

4 The trustees repea tedly contend there is no evidence they were trying to “avoid the purposes of this chapter.” Iowa Code § 21.2(2). But th ese gathering s w ere held as standard, weekly meeting s of the drainage d istrict. There is no indication th ey w ere just gathering s for “purely ministerial or social purpose [s] ” used as a means “to avoid the purposes” of IOMA , because it is facially apparent they were routine “gathering [s]

. . . of a majority of the members of a governmental body where there [wa]s deliberation or action.” Id.14

O ur supreme court firs t applied the “substantial compliance” standard in the IOMA context in KCOB . 473 N. W.2d at 176 ; see also City of Postville v. Upper Explorerland Reg’l Planning Comm’n , 834 N.W.2d 1, 9 (Iowa 2013) . In KCOB , The deputy auditor, the secretary of the meeting, was asked to leave and then the Board voted to go into a closed session. Due to the deputy auditor’s absence, no minutes of the vote of each member or the reason for holding the closed session were taken as required by chapter 21. A tape recorder, turned on before the [relevant] meeting started , revealed that the deputy auditor was asked to leave and that a vote was taken. The tape was played as evidence at trial. Although notice of the [relevant] meeting was posted, no one attended the meeting except Board members, the employee, and the deputy auditor. With the exception of the deputy auditor, no members of the public were unlawfully excluded from the closed meeting. 473 N.W.2d at 176

. The supreme court “agree[d] with the trial court’s finding that the Board was in substantial compliance with [IOMA]” as “t he Board satisfied the statutory requirements but the deputy auditor was excused before the vote and could not record the minutes” ; thus, only a “procedural irregularity occurred.” Id. Here, two meetings were held, twice the t rustees voted to go into clo sed session, and both times there was no statutory basis for closing the session. This was more than a “procedural irregularity,” which resulted in the actual exclusion of persons from the meeting. While the t rustees may well have been unaware that their actions violated IOMA, “[i]gnorance of the legal requirements” of IOMA is “no defense to an enforcement proceeding.” 5 Iowa Code § 21.6(4). We

5 The drainage district and its trustees also rely upon Wings v. Dunlap , 527 N.W.2d 407, 409 (Iowa Ct. App. 1994), where this court first applied the “substantial compliance” test in an Iowa Code chapter 22 (Open Records Act) challenge. Notably, the supreme court has yet to decide if the “substantial compliance” standard applies in the Open Records Act context. See Horsfield Materials, Inc. v. City of Dyersville , 834 N.W.2d 444, 46215

determine the district court erred in finding the trustees substantially complied with the requirements of IOMA

.

D. Good - Faith Defense Iowa Code section 21.6(3)(a) provides “[a] member of a governmental body fo und to have violated [IOMA] shall not be a ssessed

. . . damages if that member proves that the member” either “[v]oted against the closed session,” “[h]ad good reason to believe and in good faith believed facts which, if true, would have indicated compl iance with all the requirement s of [ IOMA],” or “[r]easonably relied upon . . . a formal opinion of . . . the attorney for the governmental body, given in writing, or as memorialized in the minutes of the meeting at which a formal oral opinion was g iven, or an advisory opinion of

. . . the attorney for the governmen tal body, given in writing.” Accordingly, these defenses only come into play after a finding of a violation has been made. Without specifically making a finding th at IOMA had been violated, the
district court concluded [The t rustees] had good reason to believe and in good faith believed that they were in compliance with all the requirements of the open meetings law. They had relied upon advice of legal counsel conveyed to them through clerk Elizabeth Lenz. There is not a scintilla of evidence that anyo ne intended to violate the open meetings statute. Rather, the evidence establishes that the supervisors did everything in their power pursuant to legal advice to comply with the open meetings statute. This Court specifically finds that defendants substan tially complied with all requirements of the open meetings statute. The technical violation of the physical (Iowa 2013) (finding no substantial compliance). Regardless, in Wings , the dispute was over the approximate month delay the plaintiff faced before receiving “full access and an opportunity to review all of the documents she wanted to see.” 527 N.W.2d at 409. Based on the specific circumstances of that case, we deter mined the governmental party had substantially complied with its statutory obligations. Id. at 410. It does not prove analogous to our situation here, where the meetings were held in closed sessions without statutory justification.16 absence of legal counsel does not weaken or diminish th e good faith exhibited by [the t rustees]. The Court speci fically finds that the [t rustees] have met their burden in showing both good faith and good reason to believe all requirements of the open meetings law h ad been complied with by the t rustees. Based on these conclusions

— and despite its statement the trustees “substantially complied” with the code

— the district court appears to have foun d a violation occurred but the t rustees proved they had good reason to , and in fact did , act in good faith. See I owa Code § 21.6(3)(a)(2). Olinger and Meyer dispute this finding, arguing the t rustees did no t have good reason to believe they were acting in compliance with chapter 21

. First, we note the code requires the individuals have “good reason to believe and in good faith believed facts if true, would have indicated compl iance with all the requirement s of [ IOMA].” Id. (emphasis added)

. Here, n o “facts” are proffered by the t rustees. See, e.g. , H awkeye Comm c’ns , Inc. v. Carlson , No. 04

- 1674, 2005 WL 3940279 , at *6 (Iowa Ct. App. Dec. 21, 2005)

. 6 They simply repeatedly contend they believed they were not in violation of chapter 21

. 7 The only argument proffered in the record

— though not in the parties’ b riefing

— seems to have been the t rustees’ belief counsel did not need to be present for a
closed session to be held. But this i s not a “fact” ; it i s a misunderstanding of the law, and “[i] gnorance of the legal requirements of [ IOMA ] [is] no defen se to a n enforcement proceeding. ” Iowa Code § 21.6(4).

6 In Hawkeye Commc’ns , the court found the good

- faith defense was not met when the individual was aware of the change in circumstances by the time the meeting began, was advised of a legal opinion that the meeting violated chapter 21, and had been trained on what constitutes a violation of chapter 21 and the consequences for such a violation. 2005 WL 3940279, at *6. 7 For instance, Smith vaguely testified he thought he was complying with chapter 21 and relied on advice of counsel.17
Rather than discuss a “fact” that, if true, would have meant the t rustees would not be assessed damages for a violation of the requirements of IOMA , the
t rustees 8 and the district court 9 invoke the t rustee s ’ reliance on the alleged legal advice of counsel. See id. § 21.6(3)(a) (2)

– (3). Reliance on legal counsel, however, is a separate defense. See id. § 21.6(3)(a)(3). To apply, the legal advice of counsel must either be “given in writing” or “memorialized in the minutes of the meeting at which a formal oral opinion was given .” Id

. Neither applies here. The t rustees did not receive a written opinion from counsel

— any opinion they received was from Lenz who corresponded directly with counsel. Further, it is undisputed no counsel directly provided oral advice to the t rustees at any time before or during the meeting . The de fense in section 21.6(3)(a)(3) is
thus not met. 10

8 At trial, Lenz testified she routinely gathered information from the at torney and passed it on to the trustees, including whether the t rustees could lawfully enter into a closed session. Utman testified they relied upon Lenz for this information. 9 Specifically, the district court ruled, “In the case at a hand, all evidence presented at trial indicates that the individual supervisors did their utmost to comply with the open meetings statute. Simply, the supervisors relied on the advice of legal counsel at all times.” 10 The t rustees also rely upon City of Riverdale v. Diercks , 806 N.W.2d 643 (Iowa 2011). In Diercks , a violation of chapter 22 (Open Records Act), not chapter 21 , was at issue. 806 N.W.2d at 645. Chapter 22 provides “[g]ood

- faith, reasonable delay by a lawful custodian in permit ting the examination and copying of a government record is not a violation of this chapter” when “the purpose of the delay” is to “seek an injunction,” “determine whether the lawful custodian is entitled to seek an injunction,” “determine whether the gover nment record

. . . is a public record,” or “determine whether a confidential record should be available for inspection.” Iowa Code § 22.8(4). Chapter 22 does not comparably require the same belief in a fact that, if true, would have brought the governmen t actors in compliance with the code section. In Diercks , the court considered whether reliance on advice of counsel could establish subjective good faith on the part of the government actors. 806 N.W.2d at 657. Again, in chapter 22, “good faith” is a r equirement that is paired with a certain action, like seeking an injunction. Iowa Code § 22.8(4). Under chapter 21, the “good faith” at issue is a “good faith belie[f]” in a fact or facts. Id. § 21.3(a)(2). It appears t he t rustees are attempting to esc ape the requirements of section 21.6(3)(a)(3)

— which are not met in this matter

— by using the advice of counsel to satisfy section 21.6(3)(a)(2)’s requirement for a “fact.”18

The district court also noted the t rustees did not have the benefit of this court’s previous decision when they went into closed session. The district court concluded, “The presence of legal counsel requir ement was contrary to the advice given to the t rustees by their own legal counsel. It is s imply not proper to hold the t rustees accountable for

. . . a legal interpretation of [IOMA] that did not exist at the time the choice to go into closed session was made.” A party may rely “upon a decision of a court,” id. § 21.6(3)(a)(3), but where a potential ambiguity exists, a governmental body “is authorized to bring suit . . . to ascertain the propriety of [holding a closed meeting], or seek a formal opinion of

. . . an attorney of the governmental body,” id. § 21.6(4). Here, the t rustees did not rely upon a decision of a court or the requisite written opinion of counsel. This court’s subsequent decision on th e section does not provide the t rustees a defense o f good faith. See id. (“Ignorance of the legal requirements of this chapter shall be no defense . . . .”).
There is no doubt t he district court believed the t rustees’ actions were
well

- intended. But good intentions do not equate to a “good reason to believe” and “good faith belie[f]” in “facts” that, “if true, would have indicated compliance with all the requirements of this chapter.” Id. § 21.6(3)(a)(2) ; see also Hawkeye Commc’ns , 2005 WL 3940279, at *6 (“[E]ven if [the individual] honestly believed he was acting in compliance with chapter 21, he did not have good reason to hold such a belief.”).

E. Removal Olinger and Meyer allege the district court should have removed th e
t rustees from office pursuant to section 21.6(3), which provides :19

U pon a finding by a preponderance of the evidence that a governmental body has violated any provision of this chapter, a court:

. . . . d. S hall issue an order removing a member of a governmental body from office if that member has engaged in a prior violation of this chapter for which damages were assessed against the member during the member’s term. ” ( E mphasis added

. ) There is no ev idence in the record before us of any judicial
determination of a “prior violation” by the t rustees for which damages were assessed. The fact Olinger and Meyer allege more than one violation in this action does not satisfy the requirement for a “prior vio lation.”

F. Damages Olinger and Meyer seek the imposition of maximum statutory damages against the t rustees. See Iowa Code § 21.6(3)(a) (instructing that “[u]pon a finding by a preponderance of the evidence that a governmental body has violated any provision of this chapter, a court . . . [s]hall assess each member of the governmental body who participated in its violation damages in the amount of not more than fi ve hundred dollars and not less than one hundred dollars. However, if a member of a governmental body knowingly participated in such a violation, damages shall be in the amount of not more than two thousand five hundred dollars and not less than one thous and dollars.”). We find the record is sufficient to address this on appeal and conclude the record does not support a finding of a knowing violation by the t rustees. As no ted by the district court, the
t rustees communicated with counsel, endeavoring t o c omply with IOMA. While
the t rustees have not m et the burden of proving a good

- faith defense, their efforts to remain in compliance with IOMA mitigate against a finding of a knowing20

violation an d toward an assessment of the l owest damage award provided und er section 21.6(3)(a) . Accordingly, we a ssess a $2 00 total fine against each t rustee for the two violation s

.

G. Attorney Fees The parties dispute the attorney fees awarded by the district court. The drainage district and its trustees contend the district court’s finding of substantial compliance means no violation of chapter 21 occurred; thus, fees should not have been awarded. Olinger and Meyer contend the district court abused its discretion in reducing the amount of fees awarded. For the reasons stat ed above, we find the trustees were in violation of IOMA and thus the award of fees was mandated. See Iowa Code § 21.6(3) (“Upon a finding by a preponderance of the evidence that a governmental body has violated any provision of [IOMA], a
court :

. . . b. S hall 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

. ”). At trial, Olinger and Meyer sought $6430 in appellate fees

— for approximately 35 hours billed at $175 an hour

— and $5440.83 in trial fees. The record did not indicate the trial counsel’s hourly r ate. The district court noted Olinger and Meyer were charged $1000 for trial prepara tion and $1200 for trial.
The district c ourt concluded trial

— which lasted three hours

— and trial preparation should have required a total of six hours billed . The district court also determined a reasonable fee was $100 per hour and adjusted the appellate fee s to $4106.96 and the trial fees to $3940.83. Olinger and Meyer contend this adjustment was an abuse of discretion.21 In setting reasonable attorney fees, courts consider the following factors: [T]he time necessarily spent, the nature and extent of the se rvice, the amount involved, the difficulty of handling and importance of the issues, the responsibility assumed and results obtained, the standing and experience of the attorney in the profession, and the customary charges for similar service. Boyle v. Al um - Line, Inc. , 773 N.W.2d 829, 832

– 33 (Iowa 2009) (alteration in original). The district court did not explicitly consider the attorney’s standing and experience or the customary charges for similar services. See id. at 833 (“[D]etailed findings of fact with regard to the factors considered must accompany the attorney fee award.”). However, we note the hours billed and the rate applied for building, prosecuting, and appealing this case were not excessive. Further, cases based on IOMA are not run

- of

- the

- mill cases, and the p laintiffs’ attorneys obtained favorable results. We reverse the district court’s downward adjustment of the fee total and awar d the full amount requested by Olinger and Meyer

.

H. Appellate Attorney Fees Olinger and Meyer seek and are entitled to appellate attorney fees. See Iowa Code § 21.6(3)(b). Based on the affidavits submitted and the above consideration of the applicable factors, which we find equally applicable here , we award Olinger and Meyer $13,037.22 in appell ate attorney fees.
IV. Conclusion We affirm the district court’s finding the trustees violated IOMA . We

revers e the district court’s finding the t rustees m et their burden to prove a good

faith defense. We, therefore, assess a $200 total fine against each t rustee for
the two violations. We further reverse the district court’s downward adjustment of
the attorney fee s requested at trial and award the full amount sought by Olinger22

and Meyer

. We further award Olinger and Meyer appellate attorney fees to be joi ntly and severally paid by the t rustees . We remand for an entry of judgment by the district court consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

.