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.
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.
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.
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.
Public Meetings: Public Policy. The purpose
of the Open Meetings Act is to prevent the formation of
public policy in secret.
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
Neb.App. 302] 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.
from the District Court for Valley County: Karin L. Noakes,
Allen Koch, pro se.
S. Kruml, of Kruml Law Office, PC, L.L.O., for appellee.
Chief Judge, and Riedmann and Bishop, Judges.
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.
case concerns four meetings that took place in June and July
2014: two meetings of the Committee (June 17 and [27 Neb.App.
303] 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.
17, 2014-Committee Meeting
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.
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."
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 [27
Neb.App. 304] 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
26, 2014-Board Meeting
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
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] [27 Neb.App. 305] 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.
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
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 [27 Neb.App. 306]
to the Board on each of these items, the Board took votes on
each. The Board's votes were the same as the
15, 2014-Committee Meeting
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.
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 ...