- 301 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

KOCH v. LOWER LOUP NRD

Cite as 27 Neb. App. 301

Mark Allen Koch, appellant, v. Low

Natural Resources District, appel

___ N.W.2d ___

Filed June 4, 2019. No. A-17-1257.

1. Actions: Equity: Public Meetings: Appeal and Error. An appellate 

court reviews actions for relief under Nebraska’s Open Meetings Act 

in equity because the relief sought is in the nature of a declaration that 

action taken in violation of the act is void or voidable.

2. Equity: Appeal and Error. On appeal from an equity action, an appellate court tries factual questions de novo on the record and, as to questions of both fact and law, is obligated to reach a conclusion independent 

of the conclusion reached by the trial court. But when credible evidence 

is in conflict on material issues of fact, an appellate court considers and 

may give weight to the fact the trial court observed the witnesses and 

accepted one version of the facts over another.

3. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach 

an independent conclusion irrespective of the decision made by the 

court below.

4. Public Meetings: Words and Phrases. Although the Open Meetings 

Act does not define “subcommittee,” a subcommittee is generally 

defined as a group within a committee to which the committee may 

refer business.

5. Public Meetings: Public Policy. The purpose of the Open Meetings Act 

is to prevent the formation of public policy in secret.

6. Public Meetings: Public Policy: Legislature. The Open Meetings Act 

does not require policymakers to remain ignorant of the issues they 

must decide until the moment the public is invited to comment on a proposed policy. By excluding nonquorum subgroups from the definition of 

a public body, the Legislature has balanced the public’s need to be heard 

on matters of public policy with a practical accommodation for a public 

body’s need for information to conduct business.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/04/2019 09:07 AM CDT
- 302 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

KOCH v. LOWER LOUP NRD

Cite as 27 Neb. App. 301

7. Public Meetings. The prohibition against decisions or formal action in 

a closed session also proscribes rubberstamping or reenacting by a pro 

forma vote any decision reached during a closed session.

Appeal from the District Court for Valley County: Karin 

Noakes, Judge. Affirmed.

Mark Allen Koch, pro se.

Thomas S. Kruml, of Kruml Law Office, P.C., L.L.O., for 

appellee.

Moore, Chief Judge, and Riedmann and Bishop, Ju

Bishop, Judge

I. INTRODUCTION

Mark Allen Koch filed a pro se complaint requesting a writ 

of mandamus to void various meetings of the Lower Loup 

Natural Resources District Programs/Projects Committee 

(Committee), and all actions taken therein and therefrom, 

alleging that the Committee violated Nebraska’s Open 

Meetings Act, Neb. Rev. Stat. §§ 84-1407 to 84-1414 (Reissue 

2014 & Cum. Supp. 2018). The district court for Valley 

County granted summary judgment in favor of the Lower 

Loup Natural Resources District (Lower Loup NRD). Koch 

appealed, and this court reversed the judgment and remanded 

the cause for further proceedings. See Koch v. Lower Loup 

NRD, No. A-15-559, 2016 WL 7209828 (Neb. App. Dec. 

13, 2016) (selected for posting to court website). After a 

postremand bench trial, the district court determined that the 

Committee was not functioning as a “public body” during the 

meetings complained of and that therefore, it did not violate 

the Open Meetings Act. Koch’s requested relief was denied, 

and judgment was entered in favor of the Lower Loup NRD. 

Koch appeals; we affirm.

II. FACTUAL BACKGROUND

This case concerns four meetings that took place in June 

and July 2014: two meetings of the Committee (June 17 and 
- 303 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

KOCH v. LOWER LOUP NRD

Cite as 27 Neb. App. 301

July 15) and two meetings of the Lower Loup NRD Board 

of Directors (Board) (June 26 and July 24). Koch attended 

the meetings as a citizen, but also as a spokesman for the 

“Bredthauer Dam Proposal,” a project which was discussed at 

the meetings. We briefly summarize what happened at these 

four meetings.

1. June 17, 2014—Committee Mee

The Committee held a meeting on June 17, 2014. In attendance at that meeting were six Committee members (all of whom 

were directors on the Board), two other directors from the 

Board, five staff members, and five members of the public. It 

is undisputed that Koch, Eugene Bredthauer, and Bredthauer’s 

son were not in the meeting room when the meeting began, but 

entered some minutes later. Five items appeared on the meeting 

agenda, one of which was the dam proposal.

The section of the minutes discussing the dam proposal 

reveals the following: The Committee was informed that Koch 

was told that in order for him to speak to the Committee, he 

was to send an updated proposal prior to the meeting so 

that staff could review the new information before it was 

presented to the Committee. The proposal was not submitted prior to the meeting. Discussion was had as to how to 

proceed. It was “again” explained to Koch that “normal procedure” is to give the proposal to staff in advance, then staff 

would review the information and make recommendations to 

the Committee; then the Committee would review and discuss 

the proposal and make recommendations to the Board. The 

Committee ultimately voted to table the proposal until July, 

“pending the Bredthauer proposal be[ing] submitted to staff 

in advance of the meeting, allowing sufficient time to review 

the proposal.”

Other than the budget report, for each of the other items 

on the agenda, the Committee voted on what recommendation 

to make to the Board: “City of Columbus Area Recreational 

Trails (CART) Request”—the Committee voted to recommend 
- 304 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

KOCH v. LOWER LOUP NRD

Cite as 27 Neb. App. 301

to the Board to rescind the previous monetary commitment to 

“CART” and to recommend to provide funds for the “Columbus 

City Hospital Lake Trail” and for the “Lost Creek Trail”; “Lake 

Ericson Gate Controller Request”—the Committee voted to 

recommend to the Board to provide funds for the purchase 

of the “SCADA” system; and “Davis Creek Restroom Doors 

Bids”—the Committee voted to recommend to the Board that a 

bid for the restroom doors and ceilings be approved.

2. June 26, 2014—Board Meet

The Board held a meeting on June 26, 2014. The minutes 

reflect that 17 out of the 21 directors were present at the 

meeting. Ten staff members were in attendance, as well as 

several “[g]uests,” including Koch and Bredthauer. The section of the minutes titled “Public Comments” provides as 

follows: Bredthauer told the Board that he had authorized 

Koch to speak on his behalf regarding the dam proposal. Koch 

handed out a proposal to each member of the Board and said 

he understood that the Committee had “tabled the project” 

until July. The chairman of the Board informed Koch that 

anything the Board would consider for the proposal needed 

to be “submitted to management first for [its] review.” Koch 

responded that he would not be commenting on anything in 

the proposal. However, Koch said the public comment he 

wanted to make was that he was not allowed to enter the June 

17 meeting of the Committee for 15 minutes and that he had 

wanted to record the meeting and was disappointed when that 

did not happen. He said he planned to attend the Committee 

meeting in July and would like to present the proposal in an 

indepth manner. He also said he hoped it would be a “feasible project.”

One of the directors said he requested the dam proposal 

be put on the June 2014 agenda for the Committee to determine whether the request should be revisited, but that Koch 

was not “necessarily ‘on’ the agenda.” The director said that 

the procedure was to “submit information to staff for [its] 
- 305 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

KOCH v. LOWER LOUP NRD

Cite as 27 Neb. App. 301

review, and if staff felt it was warranted, [staff] would bring 

it to the Committee”; “staff would determine if the project 

would be on the July Committee agenda.” Leon Koehlmoos, 

the general manager of the Lower Loup NRD, said that at 

the June meeting of the Committee, he had said he would 

review proposals to see if there were any changes from the 

original discussions with Bredthauer, and if there was nothing 

new and Koch was asking for the same things as in the past, 

Koehlmoos “probably would not be taking the information 

forward.” Koch responded that the proposal he distributed to 

the Board was “an entirely new proposal”; Koehlmoos said he 

would review it.

The section of the minutes titled “Programs/Projects 

Committee Report” contains a section regarding the dam proposal and states as follows: A director said that the Committee 

discussed whether or not to bring the dam proposal “forward” 

and that it decided not to because Koch and Bredthauer did 

not follow the protocol of giving information to staff first for 

its review and letting staff decide whether or not to bring the 

information to the Committee. The director told the Board that 

the Committee voted to table the proposal until July, pending 

the proposal being submitted to staff in advance of the meeting 

and allowing sufficient time for review. Koehlmoos also told 

the Board that it was a “misunderstanding” when Koch was 

not immediately allowed to enter the Committee meeting and 

that having someone wait to be introduced and brought into a 

meeting is the process for certain other committee meetings, 

so “the mistake was not intentional.” The chairman stated that 

“the meeting was advertised as a public meeting, so . . . Koch 

could have come in right from the beginning”; Koehlmoos 

agreed and stated he would correct the misunderstanding for 

public meetings in the future.

The section of the minutes titled “Programs/Projects 

Committee Report” also contains sections for the “CART” 

request, the “Lake Ericson Gate Controller Request,” and the 

“Davis Creek Restroom Doors Bids.” After a report was given 
- 306 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

KOCH v. LOWER LOUP NRD

Cite as 27 Neb. App. 301

to the Board on each of these items, the Board took votes on 

each. The Board’s votes were the same as the Committee’s 

recommendations.

3. July 15, 2014—Committee Meet

The Committee held a meeting on July 15, 2014. The 

Committee minutes appearing in our record do not appear to 

be a complete copy of the minutes (there are only two pages, 

and the second page appears to be from the Committee meeting in June). The July minutes state that seven Committee 

members were present (all of whom are directors on the 

Board). In addition to six “[s]taff present,” the minutes also 

list Koch and Bredthauer as “[o]thers present.” The section of 

the minutes discussing the dam proposal stated that Koch was 

informed he could not make a video recording because the 

Committee meeting was not a public meeting. “Koch reviewed 

the proposal that he had presented to the Board at its June 

meeting. Following the presentation, the Board discussed the 

project, discussing issues with the 404 permit, public access 

to the property, and the design of the project.” The Committee 

then voted to recommend to the Board that the dam proposal 

be denied.

Other items discussed were “CART Letters of Support” 

(letters of support had been received and were included “in 

the packet” for information purposes), “LLNRD Attendance 

at County Fairs” (because of cost, Lower Loup NRD decided 

to stop participating in county fairs “for a year or two and 

then re-evaluate”), “Headquarter Road Signs” (staff provided 

Committee “with mock-ups of potential road signs to be added 

to the Airport Motel sign to direct the public to the office”; 

Koehlmoos said potential expansion at the motel might mean 

the sign would be moved, and he proposed waiting on the 

sign until more information could be received; and Committee 

consensus was to have staff address the issue, select signs, 

and have them installed), and “Davis Creek Recreation 

Areas” (simply states “Water Line Design and Estimates”; it 
- 307 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

KOCH v. LOWER LOUP NRD

Cite as 27 Neb. App. 301

appears we do not have a complete copy of minutes from this 

point forward).

4. July 24, 2014—Board Meeti

The Board held a meeting on July 24, 2014. The minutes 

reflect that 14 out of the 21 directors were present at the meeting. Twelve staff members were in attendance, and Koch and 

Bredthauer were among those listed as “[g]uests” in attendance. The section of the minutes titled “Public Comments” 

states that “[t]here were no public comments.”

The section of the minutes titled “Programs/Projects 

Committee Report” contains a section regarding the dam proposal, which states as follows: Koehlmoos said that Koch spent 

about an hour reviewing the proposal with the Committee 

on July 15, 2014. A member of both the Committee and the 

Board stated that Koch’s presentation was “very interesting 

and well presented,” but there were issues and unanswered 

questions about the proposal regarding permits, public access, 

and design. He also said that there was “a lot of uncertainty” 

about the proposal and that the Committee “didn’t feel comfortable moving forward,” so it was recommending denial of 

the request.

The minutes note that Koch “outlined his concerns regarding the Open Meetings Act” and gave a 15-minute presentation 

reiterating items in the proposal. Another guest in attendance 

at the Board meeting then spoke in favor of the dam proposal. Discussion was had “about the project being a private 

structure, engineering assistance, DNR permit, and funding.” 

Eleven of the directors present at the meeting then voted to 

deny the dam proposal.

The section of the minutes titled “Programs/Projects 

Committee Report” also contains sections for the “CART 

Letters of Support,” “LLNRD Attendance at County Fairs,” 

and “Headquarters Road Signs.” A report was given to the 

Board on each of these items; however, no vote of the Board 

was taken.
- 308 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

KOCH v. LOWER LOUP NRD

Cite as 27 Neb. App. 301

The “Programs/Projects Committee Report” also contained a 

section for the “Davis Creek Recreation Area”; it reflects that 

more items were addressed at the July 2014 meeting of the 

Committee than appear in our incomplete copy of the minutes, 

as we noted above. The Committee report states that the “Water 

Line Design and Estimates” were discussed. Koehlmoos said 

that the “water line design was in the budget” and that the 

Committee recommended requests for bidding be sent out to 

potential bidders; after the report, the Board voted that requests 

for bidding be sent to potential bidders for the water system 

and lines at the recreation area. A “Request for Campground 

Design” was also discussed for the recreation area. Koehlmoos 

said there was a need for more campsites at the recreation 

area, that the Committee discussed the development of a new 

campsite, and that there was money in the budget for one; 

“[i]t was the recommendation of staff and the Committee to 

seek a design.” After the report, the Board voted to hire a consultant to design a new campground at the recreation area. The 

Committee report included updates on two other items, but no 

votes were taken.

III. PROCEDURAL BACKGROUND

On October 14, 2014, Koch filed a “Complaint Request 

for Writ of Mandamus for Open Meetings Act and Freedom 

of Information Act Violations by the Lower Loup [NRD] and 

Discrimination Against Koch Repair When Representing the 

Eugene Bredthauer Dam Project.” Koch alleged various violations of the Open Meetings Act. He asked that actions taken 

in violation of the Open Meetings Act be voided and that 

those responsible for violating the Open Meetings Act be held 

accountable. He also requested that the Lower Loup NRD be 

made to allow him access to public records.

On November 14, 2014, the Lower Loup NRD filed its 

answer to Koch’s complaint, generally denying all allegations. 

The Lower Loup NRD also alleged affirmative defenses. 

On December 29, the Lower Loup NRD filed a motion for 
- 309 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

KOCH v. LOWER LOUP NRD

Cite as 27 Neb. App. 301

summary judgment, alleging that there were no issues of 

material fact and that it was entitled to judgment as a matter 

of law.

On March 10, 2015, Koch filed a motion to amend the complaint, stating that the amended complaint was to be filed on 

March 16.

On March 16, 2015, Koch, without leave of the court, 

filed an “Amended Complaint for Writ of Mandamus for 

Open Meetings Act Violations by the Lower Loup Natural 

Resource District and Discrimination Against Koch Repair 

Representing the Eugene Bredthauer Dam Project.” In his 

amended complaint, Koch alleged the following “Cause[s] 

of Action”: (1) he was refused access to and the ability to 

record the first 14 to 16 minutes of the “published public 

meeting” of the Committee on June 17, 2014; (2) the Lower 

Loup NRD (a) changed the classification of the Committee to 

a “sub-committee” to circumvent the Open Meetings Act and 

then (b) changed the date of the published July 2014 meeting of the Committee without published notification; (3) he 

was not allowed to video record the July 2014 meeting of the 

Committee; and (4) (a) he was not allowed to present the dam 

proposal at the “public meeting” even though the proposal was 

“on the agenda” (it is unclear which meeting Koch is referring 

to in his pleading), (b) he was told he would not get to speak 

if staff decided not to put the proposal on the agenda for the 

July meeting of the Committee, and (c) staff refused to allow 

him an agenda item. Koch asked the district court to (1) “void 

the entire meeting of the Programs and Projects Committee for 

July, 2014”; (2) order “all information given to the [Board at 

the] meeting [in] July, 2014 and action taken on that information (including the vote against the Bredthauer Mira Creek 

Dam Project) from the illegal meeting be voided”; and (3) 

hold all members of the Committee accountable for violating 

the Open Meetings Act.

In its journal entry and order filed on March 17, 2015, the 

district court memorialized the following: A hearing was held 
- 310 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

KOCH v. LOWER LOUP NRD

Cite as 27 Neb. App. 301

that day on the Lower Loup NRD’s motion for summary judgment and on Koch’s motion to amend his complaint. At the 

hearing, the Lower Loup NRD agreed to proceed on Koch’s 

motion to amend his complaint, even though it was not given 

proper notice. Prior to ruling on the motion, the district court 

inquired of Koch as to his specific and complete requests for 

relief in each cause of action alleged in the amended complaint. Koch stated that as to the first cause of action, he was 

requesting an order declaring the June 17, 2014, meeting void. 

As to the second cause of action, he was requesting an order 

requiring the Committee meetings to be open to the public. 

As to the third cause of action, he was requesting an order 

directing the Committee to allow video recordings of meetings. As to the fourth cause of action, he was requesting an 

order directing the Committee to allow citizens to speak at 

the Committee hearings, including items on the agenda. Koch 

was also requesting $12,500 in damages and costs. The district 

court sustained Koch’s motion to amend his complaint and 

found that the amended complaint filed March 16, 2015, was 

the operative complaint. The Lower Loup NRD was given 7 

days to file an amended answer. The district court also granted 

the Lower Loup NRD’s oral motion to continue the motion 

for summary judgment, and the matter was rescheduled for 

April 21.

On March 18, 2015, the Lower Loup NRD filed its answer 

to Koch’s amended complaint and denied all allegations. Also 

on March 18, the Lower Loup NRD filed an amended motion 

for summary judgment, alleging that there were no issues of 

material fact and that it was entitled to judgment as a matter 

of law.

On April 21, 2015, a hearing was held on the Lower Loup 

NRD’s amended motion for summary judgment. In its order 

filed on June 16, the district court granted summary judgment in favor of the Lower Loup NRD on all causes of action 

and dismissed Koch’s complaint. Koch appealed; this court 

reversed the judgment and remanded the cause for further 
- 311 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

KOCH v. LOWER LOUP NRD

Cite as 27 Neb. App. 301

proceedings. See Koch v. Lower Loup NRD, No. A-15-559, 

2016 WL 7209828 (Neb. App. Dec. 13, 2016) (selected for 

posting to court website). In our memorandum opinion, we 

found there was a genuine issue of material fact as to whether 

the Committee is a subcommittee, and thus exempt from the 

Open Meetings Act. We also noted that neither the parties 

nor the district court addressed whether the Committee is 

an advisory committee which would be subject to the Open 

Meetings Act.

A postremand bench trial was held on August 28, 2017. 

Evidence will be discussed as necessary later in our analysis. 

In its order filed on November 8, the district court found that 

the Committee was a subcommittee of the Board, and not an 

advisory committee, and therefore was not a public body as 

defined in the Open Meetings Act. The court further found that 

the Committee meetings were not required to be open to the 

public because there was not a quorum of the Board present 

at the Committee meetings and because the Committee did not 

hold hearings, make policy, or take formal action on behalf of 

the Board. The court denied all relief requested by Koch, and 

judgment was entered in favor of the Lower Loup NRD.

Koch appeals.

IV. ASSIGNMENTS OF ERROR

Koch assigns numerous errors to the district court, which 

ultimately boil down to whether or not the district court erred 

in concluding that the Committee was not a public body subject to the requirements of the Open Meetings Act.

V. STANDARD OF REVIEW

[1,2] An appellate court reviews actions for relief under 

Nebraska’s Open Meetings Act in equity because the relief 

sought is in the nature of a declaration that action taken in 

violation of the act is void or voidable. Salem Grain Co. v. 

City of Falls City, 302 Neb. 548, 924 N.W.2d 678 (2019). On 

appeal from an equity action, an appellate court tries factual 

questions de novo on the record and, as to questions of both 
- 312 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

KOCH v. LOWER LOUP NRD

Cite as 27 Neb. App. 301

fact and law, is obligated to reach a conclusion independent 

of the conclusion reached by the trial court. Id. But when 

credible evidence is in conflict on material issues of fact, 

we consider and may give weight to the fact the trial court 

observed the witnesses and accepted one version of the facts 

over another. Id.

[3] Statutory interpretation presents a question of law, for 

which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court 

below. Id.

VI. ANALYSIS

1. Nebraska’s Open Meetings Act in

“Every meeting of a public body shall be open to the 

public . . . except as otherwise provided by the Constitution 

of Nebraska, federal statutes, and the Open Meetings Act.” 

§ 84-1408. Section 84-1409 defines “[p]ublic body” as follows:

(1)(a) Public body means (i) governing bodies of all 

political subdivisions of the State of Nebraska, (ii) governing bodies of all agencies, created by the Constitution 

of Nebraska, statute, or otherwise pursuant to law, of the 

executive department of the State of Nebraska, (iii) all 

independent boards, commissions, bureaus, committees, 

councils, subunits, or any other bodies created by the 

Constitution of Nebraska, statute, or otherwise pursuant 

to law, (iv) all study or advisory committees of the executive department of the State of Nebraska whether having 

continuing existence or appointed as special committees 

with limited existence, (v) advisory committees of the 

bodies referred to in subdivisions (i), (ii), and (iii) of this 

subdivision, and (vi) instrumentalities exercising essentially public functions; and

(b) Public body does not include (i) subcommittees of 

such bodies unless a quorum of the public body attends a 

subcommittee meeting or unless such subcommittees are 

holding hearings, making policy, or taking formal action 
- 313 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

KOCH v. LOWER LOUP NRD

Cite as 27 Neb. App. 301

on behalf of their parent body, except that all meetings 

of any subcommittee established under section 81-15,175 

[to evaluate projects and proposals seeking allocations 

from the Nebraska Environmental Trust Fund and/or the 

Nebraska Environmental Endowment Fund] are subject to 

the Open Meetings Act, and (ii) entities conducting judicial proceedings unless a court or other judicial body is 

exercising rulemaking authority, deliberating, or deciding 

upon the issuance of administrative orders.

(Emphasis supplied.) “[N]o public body shall designate itself 

a subcommittee of the whole body for the purpose of circumventing the Open Meetings Act.” § 84-1410(4).

The public has the right to attend and speak at meetings of 

the public bodies. § 84-1412(1). Any person in attendance may 

videotape or record all or any part of a meeting of the public 

body. Id. However, the public body may make and enforce reasonable rules and regulations regarding the conduct of persons 

attending, speaking at, videotaping, or recording its meetings. 

§ 84-1412(2). A body may not be required to allow citizens to 

speak at each meeting, but it may not forbid public participation at all meetings. Id. No public body shall, for the purpose 

of circumventing the Open Meetings Act, hold a meeting in a 

place known by the body to be too small to accommodate the 

anticipated audience. § 84-1412(4).

Finally, § 84-1414(1) provides in relevant part:

Any motion, resolution, rule, regulation, ordinance, or 

formal action of a public body made or taken in violation 

of the Open Meetings Act shall be declared void by the 

district court if the suit is commenced within one hundred 

twenty days of the meeting of the public body at which 

the alleged violation occurred.

Koch filed his original complaint within 120 days of all meetings at issue.

2. Board Is Public

In 1969, the Nebraska Legislature created the State’s natural resources districts. See Neb. Rev. Stat. § 2-3201 (Reissue 
- 314 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

KOCH v. LOWER LOUP NRD

Cite as 27 Neb. App. 301

2012). The Legislature has declared that natural resource districts are political subdivisions of the State. See Neb. Rev. Stat. 

§ 2-3213 (Reissue 2012). Each district is governed by a board 

of directors. Id. Accordingly, the Board is a “public body,” 

and its meetings are subject to the Open Meetings Act. See 

§§ 84-1408 and 84-1409(1)(a)(i). See, also, Neb. Rev. Stat. 

§ 2-3219 (Reissue 2012) (notice of all board meetings shall be 

given pursuant to § 84-1411 of Open Meetings Act).

3. Is Committee a Subcom

We must determine whether or not the Committee is a subcommittee of the Board; the district court concluded it was. 

If the Committee is a subcommittee, then its meetings are not 

subject to the Open Meetings Act unless a quorum of the public body attends a subcommittee meeting or unless it is holding hearings, making policy, or taking formal action on behalf 

of its parent body. See §§ 84-1408 and 84-1409.

(a) Applicable Law

[4-7] Although the Open Meetings Act does not define 

“subcommittee,” a subcommittee is generally defined as a 

group within a committee to which the committee may refer 

business. City of Elkhorn v. City of Omaha, 272 Neb. 867, 

725 N.W.2d 792 (2007) (citing Black’s Law Dictionary 290 

(8th ed. 2004)). In City of Elkhorn, members of the Omaha 

City Council attended informational sessions prior to a public 

meeting regarding the annexation of Elkhorn, Nebraska; there 

was no quorum of council members present at any one of the 

informational sessions. The Nebraska Supreme Court held 

that informational sessions attended by a subgroup of the city 

council, consisting of less than a quorum which, according 

to city charter, had no power to make any determination or 

effect any action, were not meetings of a public body under 

the Open Meetings Act. The Supreme Court noted that the 

purpose of the Open Meetings Act is to prevent “the formation of public policy . . . in secret.” § 84-1408. The court 

then stated:
- 315 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

KOCH v. LOWER LOUP NRD

Cite as 27 Neb. App. 301

But it does not require policymakers to remain ignorant of the issues they must decide until the moment 

the public is invited to comment on a proposed policy. 

The public would be ill served by restricting policymakers from reflecting and preparing to consider proposals, 

or from privately suggesting alternatives. See Hispanic 

Educ. Com. v. Houston Ind. Sch. Dist., 886 F. Supp. 606 

(S.D. Tex. 1994) [(actual decision to appoint specific person formally to position of superintendent was undisputedly made at open meeting in full compliance with Texas 

law, and earlier discussions of that person’s candidacy for 

position were not final decisions and thus not illegal)]. 

By excluding nonquorum subgroups from the definition 

of a public body, the Legislature has balanced the public’s 

need to be heard on matters of public policy with a practical accommodation for a public body’s need for information to conduct business.

Also, other courts have declined to apply public meeting laws to nonquorum gatherings intended to obtain 

information or voice opinions. See, e.g., id.; Freedom 

Newspapers v. Orange Cty., 6 Cal. 4th 821, 863 P.2d 218, 

25 Cal. Rptr. 2d 148 (1993) [(committee composed solely 

of board members numbering less than quorum of board 

was excluded from open meeting requirements; committee’s function was to review various matters related to 

business of board and to make recommendations to full 

board for action; full board considered committee’s recommendations in public meetings, at which time there 

was opportunity for full public discussion and debate; and 

committee did not have any decisionmaking authority)]; 

Delaware Solid Waste Authority v. News-Journal, 480 

A.2d 628 (Del. 1984) [(standing committee composed 

solely of directors numbering less than quorum of directors for Delaware Solid Waste Authority (Authority) are 

not subject to open meetings laws; standing committee 

investigated Authority operations and then reported its 
- 316 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

KOCH v. LOWER LOUP NRD

Cite as 27 Neb. App. 301

conclusions and recommendations, if any, to full board; 

all meetings of Authority, where work of committees 

is discussed, are open to public; after debate, Authority 

as whole publicly renders policy decision, and publicly 

takes steps to implement it; and throughout its meetings, 

Authority is open to public questions, comment, and 

criticism)]; Lyon v. Lake County, 765 So. 2d 785 (Fla. 

App. 2000) [(when committee has been established for 

and conducts only information gathering and reporting, 

activities of that committee are not subject to open meetings laws)]; Mason v. Vision Iowa Bd., 700 N.W.2d 349 

(Iowa 2005) [(committee not subject to open meetings 

laws; committee did not have policymaking duties, but, 

rather, it made recommendations and then board made 

ultimate decision on course of action to be taken)]. It is 

true that we have been concerned with a public body’s 

perfunctorily approving a decision in a public meeting 

that was apparently reached in a private meeting. “The 

prohibition against decisions or formal action in a closed 

session also proscribes . . . rubberstamping or reenacting 

by a pro forma vote any decision reached during a closed 

session.” Grein v. Board of Education, 216 Neb. 158, 168, 

343 N.W.2d 718, 724 (1984). But Grein is distinguishable 

on two counts.

First, Grein involved a closed session of a full school 

board. Obviously, a private meeting of a full public body, 

or a quorum thereof, raises the concern that the members will reach consensus on a matter of public concern 

out of the public’s view. See, also, Johnson v. Nebraska 

Environmental Control Council, 2 Neb. App. 263, 509 

N.W.2d 21 (1993).

Second, the school board in Grein immediately voted 

on an agenda item after a closed session, without further 

discussion or deliberations. “The necessary inference is 

that the vote during the reconvened open session was 

the extension, culmination, and product of the closed 
- 317 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

KOCH v. LOWER LOUP NRD

Cite as 27 Neb. App. 301

session.” 216 Neb. at 167-68, 343 N.W.2d at 724. Here, 

Omaha informed the public of all relevant facts supporting the annexation, and the public had full opportunity to 

voice its concerns.

City of Elkhorn v. City of Omaha, 272 Neb. 867, 881-82, 725 

N.W.2d 792, 806 (2007). And the Supreme Court noted that 

the Omaha City Council did not reach a final decision on the 

annexation until it had received the public’s input on the plan.

In addressing the claim in City of Elkhorn that under 

§ 84-1410(4), “no public body shall designate itself a subcommittee of the whole body for the purpose of circumventing the 

Open Meetings Act,” the Nebraska Supreme Court stated:

We need not decide whether, under this section, a subcommittee need be composed of the entire body or a 

quorum before it could circumvent the [Open Meetings] 

Act, because here, the evidence shows Omaha did not 

attempt to circumvent the [a]ct. As noted, Omaha gave 

the public access to the same information as the council 

received and an opportunity to be heard. We conclude that 

the informational sessions of less than a quorum of the 

Omaha City Council members did not constitute a public 

meeting under the [a]ct.

272 Neb. at 883, 725 N.W.2d at 807.

(b) Trial Evidence

At the bench trial, Russell Callan, the assistant general 

manager of the Lower Loup NRD, testified and explained the 

project proposal process as follows: When someone applies for 

a project approval to the Lower Loup NRD, the application is 

initially submitted to staff. “[S]taff . . . usually tries to sit with 

folks and review it to make sure that . . . it’s warranted, that 

it’s even an NRD activity,” and to determine the appropriate 

committee for the proposal. Staff helps “participant[s] accumulate the correct information” and makes sure that “they get 

all their information put together so when they come to the 

committee they can make a presentation to the committee.” 
- 318 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

KOCH v. LOWER LOUP NRD

Cite as 27 Neb. App. 301

After being presented to the Committee, the Committee looks 

through the proposal and then votes to send it to the Board as 

“an approval request or recommendation” or “a denial recommendation.” Callan affirmed that if the Committee believes 

that it needs more information or further study of the matter, 

it can refer that proposal back to staff for further development. 

Regardless of whether the Committee recommends approval 

or denial, all proposals are presented to the entire Board. On 

cross-examination, Callan stated that “there’s usually discussion” on all proposals that are brought to the Board. Callan 

agreed that the Board usually follows the recommendation of 

the Committee.

According to Callan, neither staff nor the Committee has 

any absolute authority to approve or deny a project proposal. 

The “Board of directors has the authority to . . . approve or 

deny projects.” The Board, not the Committee, is the governing body of the Lower Loup NRD. Callan agreed that the 

Committee is “a committee underneath [or] a subgroup” of 

the Board; the Committee does not involve a quorum of the 

Board and does not have any authority to act on behalf of the 

Board. He affirmed that the role of the Committee is to consider information and make recommendations to the Board for 

a final decision.

Callan was present at the Committee meetings on June 

17 and July 15, 2014. Callan testified that “[d]uring the 

[C]ommittee meeting, staff takes minutes and then records 

them and submits them through the agenda process to the . . . 

full [B]oard.” There were a total of eight directors present at 

the June 17 meeting (six members of the Committee and two 

other directors not on the Committee), and there were seven 

directors present at the July 15 meeting. There are 21 directors on the Lower Loup NRD, so 11 directors are needed for 

a quorum; there was no quorum at the Committee meetings on 

either June 17 or July 15. According to Callan, the Committee 

does not hold hearings and no hearings were held at either the 

June 17 or July 15 meeting. Callan’s definition of a hearing is 
- 319 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

KOCH v. LOWER LOUP NRD

Cite as 27 Neb. App. 301

“a formal process that a governing body goes through to take 

testimony and . . . information from . . . a person or the general 

public . . . for a certain function or need,” weighing both evidence and testimony. Callan denied that the Committee holds 

hearings where it takes sworn testimony or public information 

of that nature. Callan also denied that the Committee made any 

policy binding upon the Lower Loup NRD or that it took any 

formal action on behalf of the Board.

Callan acknowledged that Koch was present at the 

Committee meeting on June 17, 2014, but was “very agitated 

that he was not able to enter the meeting right away.” Koch 

was able to present his proposal regarding the dam, and “[i]t 

was recommended to go back to staff for review.” The meeting 

minutes do not reflect that Koch was able to present his proposal. Rather, the minutes reflect that the Committee voted to 

table the proposal until July, “pending the Bredthauer proposal 

be[ing] submitted to staff in advance of the meeting, allowing 

sufficient time to review the proposal.”

Callan acknowledged that Koch was also present at the 

Committee meeting on July 15, 2014, and gave a presentation 

regarding the dam proposal. Members of the Committee were 

able to ask questions and have interaction with Koch, and the 

members had “concerns about permitting, engineering and 

design, [and] the fact that it’s a private structure, not a public 

structure.” The Committee’s recommendation was to deny the 

request. Callan acknowledged that the recommendation would 

include a presentation of the findings and studies and the concerns that were developed at that meeting.

Koehlmoos, the general manager of the Lower Loup NRD, 

was called as a rebuttal witness by Koch. Koch had Koehlmoos 

read a portion of the minutes from the June 26, 2014, meeting 

of the Board, which state:

Koehlmoos said, that at the June Committee meeting, 

he had said he would review proposals to see if there were 

any changes from original discussions with Bredthauer; 

and if there was nothing new and Koch was asking for the 
- 320 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

KOCH v. LOWER LOUP NRD

Cite as 27 Neb. App. 301

same things as in the past, Koehlmoos said he probably 

would not be taking the information forward.

Koch then asked Koehlmoos if that meant that Koehlmoos 

could decide if the proposal went forward to the Committee. 

Koehlmoos responded, no, that there were “a number of ways 

to be put on any agenda.” Koehlmoos said that the chairman 

of the Board can request an agenda item be added or that two 

members of the Board can ask that an agenda item be added. 

But that as the preparer of the agenda, Koehlmoos said it was 

his job to “look through the information, and if its information that’s already been covered and nothing significantly has 

changed, because of time of directors, . . . I don’t report the 

same thing over and over and over again.” He further said, 

“So, I think, per my statement, that . . . I looked to see if 

there were changes from the original discussion and there 

were none, so, you know, it didn’t go forward.” Koehlmoos 

was also asked who had the authority to place things on the 

agenda for the Board. He responded, “I do as far as the preparer of the agenda, or I can be directed to add an agenda 

item by the chair” or by “two or more . . . members on the 

NRD Board.”

Koehlmoos stated that if something “doesn’t meet our 

[Lower Loup] NRD authority, I probably will not take it before 

the [C]ommittee,” but “it’s not to say that it can’t get to the 

[C]ommittee by way of either the chairman or . . . a number of 

directors that wish [it] to be placed there.” At the Committee 

meetings, “ideas are brought, discussion is made” and “we do 

discuss the item in greater detail than allowable during the 

public [meeting of the Board].” The Committee is a “subcommittee or a committee of a non-quorum group that are allowed 

some flexibility in asking questions and throwing out ideas and 

maybe even doing some discussions on the items to come to 

what then is carried, you know, a recommendation to take to 

the [B]oard.”

Koch testified that he attempted to present the dam proposal 

for Bredthauer, whose dam washed out in 2010 (Bredthauer 
- 321 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

KOCH v. LOWER LOUP NRD

Cite as 27 Neb. App. 301

asked Koch for assistance in building his dam). Koch said he 

attempted to get the proposal on the agenda for the Committee 

meeting on June 17, 2014, but was told that it would not be on 

the agenda; however, the Committee meeting agenda had the 

proposal listed.

Koch said he was refused entry to the Committee meeting 

on June 17, 2014, for 15 minutes, but was then told he could 

go in because it was a “public meeting.” He could not record 

the entire meeting because of the late entry. He claimed that 

the meeting room was too small for the number of people 

in attendance. (Bredthauer also testified that the room was 

“cramped.”) According to Koch, a discussion regarding the 

“CART” agenda item was in progress when Koch entered 

the meeting and “specific dialogue made me understand that 

there were decisions being formulated” in the Committee 

that “were not represented entirely” in front of the Board. 

Koch wants every decision of the Committee that was not 

public—“[a]nything that I wasn’t allowed to hear”—to be 

declared void.

When the Committee reached the agenda item for the dam 

proposal on June 17, 2014, Koch said he was told that the proposal was “on the agenda to decide whether [it was] going to 

[be] on the agenda.” (An audio recording of the meeting made 

by Koch was received into evidence and reveals that the dam 

proposal was listed on the agenda so that the Committee could 

decide whether it wanted to discuss the proposal again. The 

Committee noted that the proposal had been brought to the 

Board and voted against in the past, so if there was nothing 

new in the proposal, there was no reason to look at it again. 

Because Koch had not submitted the allegedly new proposal 

to staff for review prior to the Committee meeting, the issue 

was tabled until July in order to allow the review to occur.) 

Koch sought to have the proposal put on the agenda for the 

Committee meeting in July, and he noted that the meeting date 

had been changed from July 17 to July 15. He said he was 

told he could not record the Committee meeting on July 15 
- 322 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

KOCH v. LOWER LOUP NRD

Cite as 27 Neb. App. 301

because the Committee does not go by the Open Meetings Act. 

Koch stated that the meeting room for the Committee meeting 

in July was again too small. According to Koch, he presented 

the dam proposal for 2 hours at the Committee meeting in 

July, but at the Board meeting in July, only 4 or 5 minutes 

were taken to summarize his 2-hour presentation; the Board 

voted to deny any funding for the dam proposal.

Koch stated that votes were taken at the Committee meetings in June and July. He further stated that each of the agenda 

items for the Board meeting in July took 2 to 5 minutes to 

decide, whereas discussion at the Committee meeting took 30 

to 45 minutes. Koch believes what the Committee does is “rubberstamped” by the Board.

(c) Our Decision

Although there is evidence in the record that staff and/

or the Committee had stated that the Committee meeting in 

June was an “open meeting” and was “public,” their personal 

descriptions of the meeting is not controlling for purposes of 

determining whether the Committee is a subcommittee subject 

to the Open Meetings Act.

Keeping in mind the evidence and the legal principles 

set forth previously, we conclude that the Committee was a 

subcommittee of the Board and was not subject to the Open 

Meetings Act at either its June or July 2014 meetings. Neither 

of those meetings of the Committee had a quorum of the Board 

in attendance. And as testified to by Callan, the Committee 

does not hold hearings, make policy, or take formal action on 

behalf of the Board.

According to the testimony of Callan and Koehlmoos, ideas 

are brought and discussion is had at the Committee meetings; the Committee considers the information and makes 

recommendations to the Board for a final decision. According 

to Callan, neither staff nor the Committee has any absolute 

authority to approve or deny a project proposal. The Board 

“has the authority to . . . approve or deny projects.” The 
- 323 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

KOCH v. LOWER LOUP NRD

Cite as 27 Neb. App. 301

Board, not the Committee, is the governing body of the Lower 

Loup NRD. We have reviewed the meeting minutes of the 

Committee and the Board, as well as listened to the various 

audio recordings made by Koch that were received into evidence, and we note that no final decisions were made at the 

Committee meetings; the Committee only voted on what recommendations to make to the Board on the various proposals. 

The Board then held a public meeting, where the public was 

allowed to comment, further discussion was had, and a final 

decision was made.

As the Nebraska Supreme Court stated in City of Elkhorn 

v. City of Omaha, 272 Neb. 867, 881, 725 N.W.2d 792, 806 

(2007), the Open Meetings Act “does not require policymakers to remain ignorant of the issues they must decide until 

the moment the public is invited to comment on a proposed 

policy. The public would be ill served by restricting policymakers from reflecting and preparing to consider proposals, or 

from privately suggesting alternatives.” The court also recognized that “other courts have declined to apply public meeting 

laws to nonquorum gatherings intended to obtain information 

or voice opinions.” Id. The City of Elkhorn court cited authority from other states which held that committees that did not 

have any decisionmaking authority, but reviewed matters and 

made recommendations to the full board for final decision 

(after full public discussion and debate) were not subject to 

the Open Meetings Act. That is exactly what occurred in the 

instant case. The Committee reviewed projects and proposals and then made recommendations to the Board. The Board 

had a public meeting, where the public was allowed to comment, further discussion was had, and then a final decision 

was made.

Although Koch contends that the Committee’s decision 

is “rubberstamped” by the Board, we disagree. Unlike in 

Grein v. Board of Education, 216 Neb. 158, 343 N.W.2d 718 

(1984), where the school board immediately voted on an 

agenda item after a closed session without further discussion 
- 324 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

KOCH v. LOWER LOUP NRD

Cite as 27 Neb. App. 301

or deliberations, the Board in the instant case had a public 

meeting more than a week after the Committee meeting. At 

the public meeting, the public was allowed to comment, further discussion was had, and then a final decision was made. 

Just like in City of Elkhorn, supra, and the cases cited therein,

the Board did not reach a final decision on issues until it had 

allowed and received the public’s input.

For the sake of completeness, we note that the district 

court also concluded that the Committee was not an advisory 

committee. This finding was made in response to our previous opinion where we noted that neither party nor the district 

court had addressed whether the Committee was an advisory 

committee. See Koch v. Lower Loup NRD, No. A-15-559, 

2016 WL 7209828 (Neb. App. Dec. 13, 2016) (selected for 

posting to court website). However, that observation was 

made solely to point out that the record on summary judgment lacked sufficient information to determine exactly what 

the Committee’s role was with respect to actions taken by the 

Board; the record before this court now sufficiently establishes that the Committee qualifies as a subcommittee under 

§ 84-1409(1)(b) and is therefore not a public body subject to 

the Open Meetings Act. That being the case, it follows that 

the Committee cannot also be an advisory committee, which 

is specifically identified as a public body subject to the Open 

Meetings Act. See § 84-1409(1)(a)(v).

VII. CONCLUSION

Because we have determined that the Committee was not 

functioning as a public body at the meetings complained of, 

and thus not subject to the requirements of the Open Meetings 

Act, we affirm the district court’s denial of all relief requested 

by Koch and its judgment in favor of the Lower Loup NRD.

Affirme