Koch v. Lower Loup Natural Res. Dist.
| Citation | 931 N.W.2d 160,27 Neb.App. 301 |
| Decision Date | 04 June 2019 |
| Docket Number | No. A-17-1257.,A-17-1257. |
| Parties | Mark Allen KOCH, appellant, v. LOWER LOUP NATURAL RESOURCES DISTRICT, appellee. |
| Court | Nebraska Court of Appeals |
Mark Allen Koch, pro se.
Thomas S. Kruml, of Kruml Law Office, P.C., L.L.O., Ord, for appellee.
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) (). 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.
This case concerns four meetings that took place in June and July 2014: two meetings of the Committee (June 17 and 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.
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: —the Committee voted to recommend 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.
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] 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 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.
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. 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 appears we do not have a complete copy of minutes from this point forward).
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...
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