Des Moines city leaders sidestep Iowa law, hold secret meetings on development agreements

Des Moines' mayor, city manager and members of the City Council convened behind closed doors and in small groups in February to discuss procedures for development contracts, sidestepping Iowa's open meeting law.

A discussion on the "standard development agreement" was initially slated for a public council work session, typically held in the mornings ahead of the general City Council meeting. Instead, without announcement or access to the public, two meetings titled "Standard Development Agreement" were scheduled back-to-back on Feb. 19, allowing council members to break off into two groups to discuss the topic, according to calendars the Des Moines Register obtained as public records.

The smaller groups meant there was no quorum among council members and therefore the meetings were not required to be public.

A city spokesperson declined to comment on what was discussed during the meetings. But an additional records request of documents provided to the council during and after the meetings revealed city staff made adjustments to development agreement and tax increment financing policies that Des Moines uses to guide conversations and negotiations with developers. Changes include requirements for affordable housing and energy efficiency, such as solar panels and electric vehicle charging stations, for developments getting TIF.

The spokesperson also declined to comment on why the meetings were held in small groups without quorums, and how often this type of meeting occurs. The Register filed a records request for minutes from both meetings, but the city said none were taken.

While small group meetings are allowed under Iowa law, Randy Evans, executive director of the Iowa Freedom of Information Council, a coalition that supports open government, said they violate the spirit and intent behind the state's public meetings law.

"From my vantage point, it's painfully obvious what's occurring here is that by having less than a quorum present at any one time, it's not a public meeting. They don't have to tell the public that it's being held. They don't have to let the public in, and that lets them work out any disagreements without the public watching," Evans said.

But "the whole purpose of a public meeting is to hear what council members say, what is being presented to the council," he said. "And the Des Moines City Council belongs to the citizens of Des Moines. It doesn't belong to the City Council members and the city manager."

Where, when were the Feb. 19 meetings held?

Invited to one meeting, held from 7:30 a.m. to 8:30 a.m. on Feb. 19, were Mayor Connie Boesen, at-large council member Carl Voss and council member Linda Westergaard, according to a copy of their calendars.

Invited to a second meeting immediately after, from 8:30 a.m. to 9:30 a.m., were Boesen and council members Joe Gatto and Josh Mandelbaum.

Calendars show both meetings took place in the lower level conference room at Des Moines City Hall at 400 Robert D. Ray Drive. City Manager Scott Sanders also was slated to attend both meetings. Council member Chris Coleman was not included in the meetings, calendars show.

Some council members' calendars also note that a council work session in the council chambers set for the same morning was canceled.

Mandelbaum and Voss confirmed to the Register they attended the scheduled meeting. Boesen said she was present for at least one of the meetings. Gatto declined to comment, and Westergaard did not return the Register's calls.

Coleman told the Register he was not looped into the meetings because he was out of town. He attended the evening council meeting by phone.

Boesen said no decisions were made. Rather, development staff informed council members of some wording changes to development agreements — changes that staff have the right to make, she said.

"It was only one item. It was very just informational, so that's why it was done how it was done," Boesen said. "We didn't believe it rose to the level" of a council work session. She added it isn't unusual to change or cancel work sessions based on council members' schedules.

What does Iowa law say about public meetings?

Under Iowa law, any time the council has a quorum — the majority of members present — to discuss policy matters, the public has to be allowed to attend, and notice of the meeting must be posted at least 24 hours in advance.

The law does allow all council members to meet for "ministerial," or housekeeping purposes such as monthly expense claims, attending training and events, or meeting socially, without public notice. Closed meetings are allowed to discuss things like personnel matters, pending litigation, or the sale of real estate "where premature disclosure would adversely impact the price," Iowa law says.

According to the Des Moines City Council's procedural rules, a majority of all members of the council constitute a quorum for the transaction of city business. State law also says vacant positions must be included when calculating the number of council members that have to be present for a quorum, according to the Iowa League of Cities. The Des Moines City Council has seven members including the mayor, meaning four are required for a quorum even though the city had one vacant seat at the time of the Feb. 19 meetings.

Evans said he sees this instance of having less than half the members present as an "obvious" way for the city to circumvent the law.

"And in doing so, they're not breaking the law to do that, but it certainly is contrary to the spirit of the public meetings law because it deprives the public, the citizens of Des Moines, of the ability to understand the basis and rationale for decisions that the City Council makes," he said.

Generally, these types of meetings tend to happen when the issue is controversial or where there are "strongly held opinions on both sides of the issue," he said.

"But that is the particular time where it is most troubling because that's an issue that is going to engage more people, and people want to know how their council members feel about it, and the public has been shut out," Evans said.

Coleman, who previously served on the City Council for two decades before he was elected to a new seat last year, said he's never seen an intentional effort to work around open meeting laws.

"Our city manager and our city legal team is very serious about open meetings and us abiding by the law and holding us accountable for that and so there's never really an intended effort to violate it," he said. "But sometimes they really want to get information in our hands, and it's impossible to get everybody together and instead of doing seven meetings, they'll do three or four."

More: Des Moines sets ambitious targets to lower greenhouse gas emissions, go carbon-free by 2035

Documents show changes to TIF policy, development agreement language

Through a records request, the Register obtained two documents handed out to council members during the meetings and emailed to them the next day.

One document includes specific changes for developers to meet the city's goals on energy efficiency and affordable housing if they receive tax increment financing. For example, housing developments should have "at least 10% of the residential units at 65% HOME rent limits, when feasible."

Sustainability goals in the revised TIF policies document include:

• Provide electric vehicle charging stations and infrastructure to accommodate additional charging stations when off-street parking is provided.

• Install energy-efficient systems like solar panels when feasible.

• Comply with the 2021 International Energy Conservation Code, which provides a national model for energy-efficient residential construction, when feasible.

• Participate in Des Moines Area Regional Transit Authority's Unlimited Access Partner program, a contract with a company that allows its employees to ride DART for free, when feasible.

The second document highlights changes and recommendations city staff members have made to development agreement language that requires developers to follow applicable federal, state and local laws related to things like workplace safety, payroll records, and unemployment and workers compensation insurance.

Des Moines council members have openly clashed over development agreements

This isn't the first time council members have shied away from openly discussing development agreement standards. On the heels of a contentious mayoral race, Mandelbaum pushed to discuss development agreements for apartment projects in the Sherman Hill neighborhood and downtown Des Moines during a council meeting in November.

In a roughly 25-minute speech, he also said the city should explore setting other marks for developers to meet, including environmental and labor standards, and suggested devising a clear framework for staff and developers to consult when outlining the terms of agreements that include tax incentives.

While some council members called some of Mandelbaum's points "valid," multiple members said it wasn't the proper setting for the discussion.

More: Des Moines City Council butts heads over development agreements in first meeting since election

Samantha Groark, executive director of the Central Iowa Building & Construction Trades Council, which comprises 16 local building trade unions across Iowa, said the council has long asked the city of Des Moines to review development agreements to set "better construction standards," to resolve problems like underpaid or misclassified workers or to add registered apprenticeship programs for contractors working on a construction project.

Groark, who had hoped some of these issues would be discussed in the work session, said learning that smaller meetings were held behind closed doors was like having the "rug sort of taken out from under our feet," she said.

"And it's an important topic for us because it's a matter of being good stewards of public tax dollars, and why we wanted the conversation to happen in the first place is because we believe that the city can do better on this front," she said.

Mandelbaum said these broader discussions over development agreements deserve to be aired publicly.

"I think it's disappointing that we haven't had a broader, open council discussion on how we address community benefits in our development agreement," he said. "I think the public deserves that type of discussion, and I think there's room for improvement in a lot of different ways in our development agreements."

Virginia Barreda is the Des Moines city government reporter for the Register. She can be reached at vbarreda@dmreg.com. Follow her on Twitter at @vbarreda2.

This article originally appeared on Des Moines Register: Des Moines mayor, council hold secret meetings on development agreements