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Koch v. Lower Loup Natural Resources District

Court of Appeals of Nebraska

June 4, 2019

Mark Allen Koch, appellant,
Lower Loup Natural Resources District, appellee.

         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.

         [27 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.

          Appeal from the District Court for Valley County: Karin L. Noakes, Judge.

          Mark Allen Koch, pro se.

          Thomas S. Kruml, of Kruml Law Office, PC, L.L.O., for appellee.

          Moore, Chief Judge, and Riedmann and Bishop, Judges.

          Bishop, Judge.


         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.


         This 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.

         1. June 17, 2014-Committee Meeting

         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 [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 approved.

         2. June 26, 2014-Board Meeting

         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] [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.

         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 [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 Committee's recommendations.

         3. July 15, 2014-Committee Meeting

         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 ...

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