Frequently Asked Questions
Each week, the INA Bulletin contains a Question of the Week, offering answers to the most frequently asked questions from newspapers.
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With the sole exception of ballots, the Iowa Code does not allow publishers to charge regular space rates for publishing public notices. Each year, the INA sends all publishers an updated chart which provides information on the maximum rate which may be charged. Rates are computed by the line (not by the inch) and include notices such as board or council proceedings, probates, hearing notices, etc. Papers are free to charge less than these rates but may not charge more.
Chapter 349.1 of the Iowa Code states that the county board of supervisors shall select the official county papers “at the January session each year.” The INA recommends that newspapers wishing to receive this destination request it each year in December in writing to the board of supervisors.
Q. If a two-newspaper company consolidates its operations from preparing two separate papers in two towns to preparing the same two separate papers in one location (and mailing each in the two separate towns), would its legal notice status be put in jeopardy for city, school or county notices if it did not maintain a physical location in one of the two towns?
A. INA Legal Hotline Attorney Joe Quinn says the place of publication is not where the paper is put together but where it enters the mail. As long as the paper will have a sufficient presence to keep its postal permit at both post offices it should qualify as a newspaper for public notice publication.
Tell your readers - regularly - about the importance of public notice and your role in publishing notices. Run “house ads” and other material detailing how the information found in public notices can impact your community, your neighborhood and more. Constantly remind readers how important notices are to their rights as citizens and property owners.
Make public notices easier to read and easier to understand. Poorly written public notice statutes often in notices nearly unintelligible to readers. Those statutes frequently require small typefaces, tight leading and worse. Having authored the statutes that make them nearly impossible to comprehend, legislators then like to argue, “Since nobody’s reading public notices, let’s get rid of them.” Respond by running summaries and explanations of the notices - “what is a summons notice and why is it important?” - and, whenever possible, offering visual clues, graphics and the like.
Give public notices a prominent - and permanent - position in your newspaper. By creating a regular, easy-to-find position for notices in your newspaper, you’ll increase reader awareness of public notices and build understanding of the significance of public notice.
Use public notices as a source of new stories. An otherwise innocent-looking notice about a rezoning proposal may provide a window to an important story about a changing neighborhood. A “typical” notice about a foreclosure or other credit-related action could be the beginning of a critical story you should report about a local business or individual.
Train your staff on the importance of public notice. Make sure they know how much public notice matters to the community - and to the future of your business. It’s not about the revenue; it’s about the job you do for your community.
Let your customers know you’re the public notice “expert.” Legal requirements attached to publishing notices - from publication schedules to affidavit procedures - can be nettlesome and confusing. Master them. And let your customers - from the local city clerk to the attorney placing a probate notice - know they can be assured you’ll take care of the details and get the job done right, every time.
Work with your state newspaper association to monitor public notice legislation. Changes in public notice laws usually move quietly through state legislatures. Do what you can to help your state newspaper association stay on top of the issue. Keep in touch with your local elected representatives and make sure they’re on your side when it comes down to the future of public notice.
Treat public notice as just another classified advertising category. Placing notices deep in the classified ad section or, even worse, haphazardly in the paper tells your readers that you don’t think public notice is particularly important. Your readers likely include local officials and state legislators, and they will act accordingly."
When cities, schools or counties are required to publish a list of claims, each claim must contain three elements:
-- The name of the person or company receiving the money;
-- The amount of money received by the claimant and
-- The purpose or reason the claimant is being paid.
Iowa Code Chapter 49.54 (page 13C, INA Publishers Handbook) says the cost of publishing the sample ballot shall be determined by the director of the state department of general services or his or her designee. The current rule is that the facsimile portion of the ballot, which must be photographed, shall be charged at not more than the newspaper’s regular display rate by the column inch. The reader or straight matter portion may be charged at the public notice rate by the line. The candidates’ names must be published in at least nine-point type. In any city where no newspaper is published and where the population is 2,000 or less, the total cost of the ballot shall not exceed $250 for a quarter-page or $350 for a half-page."
According to the Iowa Code, newspapers may charge a maximum of four dollars per description. There is no charge for the header or introductory copy.
According to the INA Legal Hotline attorneys, the following language may be used on public notice affidavits in lieu of notarization: "I, (name), do hereby state that I certify under penalty of perjury and pursuant to the laws of the State of Iowa that the preceding is true and correct t as I verily believe. Signed (name) on (date).”
If the affidavit is notarized, someone other than the publisher must serve as the notary.
According to our Legal Hotline attorneys, when a legal notice is accepted for publication, a contract undoubtedly will be found to exist between the party desiring publication of the notice and the newspaper. If this agreement is not specified in writing, the terms and conditions of the contract will be supplied through the discussions that took place between the parties. Obviously, this can lead to misunderstandings and confusion. If there is an advertising form used specifying the terms and conditions of publication, many of these potential problems and ambiguities can be eliminated. In many instances, persons requesting publication of legal or official notices rely on the newspaper to publish the notices in accordance with the various statutory requirements, without giving the newspaper specific directions. For example, this situation arises when arrangements are being made for sheriff’s sales or when governmental entities publish required notices. Such reliance increases the exposure of newspapers when the notices are not published in accordance with the relevant statutes.
Assuming there is a written or oral agreement for a newspaper to publish a notice, and it fails to do so, a newspaper is potentially liable for several types of damages. First, the newspaper will be unable to collect for the cost of the publication or, if the cost is prepaid, the newspaper will be required to return the amount paid by the party placing the notice. As a practical matter, this damage element may best be resolved by the newspaper agreeing to publish the notice correctly at no charge. Second, the newspaper may be liable for certain consequential damages that result from the fact that publication did not occur. For example, if a sheriff’s sale has been scheduled related to the sale of real property, and notice of the sale is not published, the person requesting the notice could argue that the newspaper must pay for reserving all the parties to the underlying action with notice of the rescheduled sale date and for the lost value of not having its funds when the original sale was scheduled. If something happened to the value of the property in the interim, reimbursement from the newspaper which failed to publish the notice also could conceivably be requested. It appears that if a party is damaged as a result of the failure of the notice to be published, the courts may allow claims to be made against the newspaper involved.
To avoid this potential liability, it may be advisable for newspapers to use written order forms or agreements in which the terms of the agreement are specified, including the requirements of the notice to be published to avoid confusion or ambiguity. Even so, notices will still be left out of newspapers. As a result, a limitation of liability clause could be included in the written order form limiting recovery for failure to place the requested notice to the cost of placing the notice. By way of example, the following proposed language could be used:
If [ ] shall fail to publish this notice as required by this order, in whole or in part, or shall make errors in such notice, [ ]’s liability therefore shall in no event exceed the amount of the charges allowed by law for the publication of the notice which was not published in accordance with this order.
While the use of this language cannot be an absolute guarantee that the newspaper will be insulated from liability in the event of a mistake in publication of a legal notice, the provision will strengthen a newspaper’s defense of a claim for consequential damages.
Yes–in some cases. Typically, counties submit proposed budgets for publication in all official county newspapers without regard to placement. In some circumstances, however, the county's budget may trigger an administrative rule requiring that the budget "not appear on a page containing classified advertisements or other types of legal notices." This administrative rule comes into play whenever a county intends to certify a budget that increases either of the basic property tax levies. In this case, additional information must be included in the budget publication making the county's intentions clear to the taxpayers of the county. Both the basic budget form and the additional information form are created by the State Department of Management.
The INA Legal Hotline attorneys say: Iowa does appear to permit publication of only summaries of changes in zoning laws. Iowa Code section 335.6 provides that any zoning “regulation, restriction, or boundary shall be adopted in compliance with section 331.302.” Section 331.302 of the Iowa Code sets forth various rules and procedures governing “county legislation.” Among those rules and procedures is a requirement to publish proposed legislation. Iowa Code º 331.302(7).
That section, however, expressly permits publication of a summary, rather than the full text, of any new legislation: “A resolution becomes effective upon passage and an ordinance or amendment becomes a law when a summary of the ordinance or the complete text of the ordinance is published, unless a subsequent effective date is provided within the measure.” Id. The statute goes on to describe what must appear in a summary: As used in this subsection, “summary” shall mean a narrative description of the terms and conditions of an ordinance setting forth the main points of the ordinance in a manner calculated to inform the public in a clear and understandable manner the meaning of the ordinance and which shall provide the public with sufficient notice to conform to the desired conduct required by the ordinance. The description shall include the title of the ordinance, an accurate and intelligible abstract or synopsis of the essential elements of the ordinance, a statement that the description is a summary, the location and the normal business hours of the office where the ordinance may be inspected, when the ordinance becomes effective, and the full text of any provisions imposing fines, penalties, forfeitures, fees, or taxes. Legal descriptions of property set forth in ordinances shall be described in full, provided that maps or charts may be substituted for legal descriptions when they contain sufficient detail to clearly define the area with which the ordinance is concerned. The narrative description shall be written in a clear and coherent manner and shall, to the extent possible, avoid the use of technical or legal terms not generally familiar to the public. When necessary to use technical or legal terms not generally familiar to the public, the narrative description shall include definitions of those terms. Given these provisions, it seems clear that regardless of whether the proposed changes to the zoning laws are passed at one time or in a piecemeal fashion over the course of several meetings, the county is allowed to publish only summaries of any changes so long as the summaries meet the statutory requirements in section 331.302(7)."
Yes. Iowa Code section 347.13 (14) states ╥There shall be published quarterly in each of the official newspapers of the county as selected by the board of supervisors pursuant to section 349.1 the schedule of bills allowed and there shall be published annually in such newspapers the schedule of salaries paid by job classification and category, but not by listing names of individual employees. The names, addresses, salaries, and job classification of all employees paid in whole or in part from a tax levy shall be a public record and open to inspection at reasonable times as designated by the board of trustees.
According to the INA Legal Hotline attorneys, There is no separate statutory requirement that the county hospital hold or give notice of a public hearing on its budget. The hospital budget will be included as part of the overall County budget and that is where the public hearing and notice requirements come into play.
If a hospital is currently holding and noticing a public hearing on its budget, it is going above and beyond what is required by the statute...but there is still no requirement that they publish the actual proposed budget or budget summary.
No. In fact, they may be published in a newspaper which is not an official county newspaper. Chapter 626.75 of the Iowa Code says “In case of the sale of real estate, or where personal property with a value of $200 or greater is to be sold, there shall be two weekly publications of such notice in some newspaper printed in the county, to be selected by the party causing the notice to be given, the first at least four weeks in the case of real estate, or three weeks in the case of personal property, before the date of sale, and the second at a later time before the date of sale. The compensation for such publication shall be the same as compensation by law for legal notices.”
Counties must publish two notices regarding adoption of a zoning ordinance.
1) Iowa Code Chapter 335.6 says "the board of supervisors shall provide for the manner in which the regulations and restrictions and the boundaries of the districts shall be determined, established, and enforced, and from time to time amended, supplemented, or changed. However, the regulation, restriction, or boundary shall not become effective until after a public hearing, at which parties in interest and citizens shall have an opportunity to be heard. Notice of the time and place of the hearing shall be published as provided in section 331.305."
That section of the code requires the board to publish the notice at least once, not less than four nor more than twenty days before the date of the election, hearing, or other action, in one or more official county newspapers.
2) Following the hearing, and upon approval of the ordinance, Code sectioon331.302 (7) states "an ordinance becomes a law when a summary of the ordinance or the complete text of the ordinance is published, unless a subsequent effective date is provided within the measure. As used in this subsection, "summary" shall mean a narrative description of the terms and conditions of an ordinance setting forth the main points of the ordinance in a manner calculated to inform the public in a clear and understandable manner the meaning of the ordinance and which shall provide the public with sufficient notice to conform to the desired conduct required by the ordinance. The description shall include the title of the ordinance, an accurate and intelligible abstract or synopsis of the essential elements of the ordinance, a statement that the description is a summary, the location and the normal business hours of the office where the ordinance may be inspected, when the ordinance becomes effective, and the full text of any provisions imposing fines, penalties, forfeitures, fees, or taxes. Legal descriptions of property set forth in ordinances shall be described in full, provided that maps or charts may be substituted for legal descriptions when they contain sufficient detail to clearly define the area with which the ordinance is concerned. The narrative description shall be written in a clear and coherent manner and shall, to the extent possible, avoid the use of technical or legal terms not generally familiar to the public. When necessary to use technical or legal terms not generally familiar to the public, the narrative description shall include definitions of those terms."
The rate for publishing the full text of the ordinance is the ordinance price rate published on page 33 of the INA Publisher Handbook. The rate for publishing the full text is the full price rate published on the same page.
While not referenced anywhere in the Iowa Code, this is a public notice and should be billed at the public notice rate. The state of Iowa is responsible for administering the federal clean water act which requires publication of this report. Iowa's administrative code references the publishing requirement.
No, if a city has a population of 200 or less, a publication may be made by posting in three public places in the city which have been permanently designated by ordinance.
Yes ... and it depends. All communities in Iowa with populations of 200 or more must publish city council proceedings. All communities over 200 where a newspaper is published must publish ordinances and amendments to ordinances. Iowa Code section 362.3 states that “in the case of ordinances and amendments to be published in a city in which no newspaper is published, a publication may be made by posting in three public places in the city which have been permanently designated by ordinance.”
No. In cities with a population of less than 200 or in cities where a newspaper is not generally circulated, minutes must be posted in three public places in the city that have been permanently designated by ordinance.
In cities with a population greater than one hundred fifty thousand, the council must print a pamphlet monthly that contains a detailed itemized statement of all receipts and disbursements of the city and a summary of its proceedings during the preceding month. Copies must be furnished to the city library, the daily newspapers of the city and to persons who apply at the office of the city clerk. This pamphlet shall constitute publication as required by state law.
Code of Iowa Section 362.3 states that unless otherwise provided by law, a notice of an election, hearing, or other official action required by the city code, must be published at least once, not less than four days nor more than 20 days before the date of the election, hearing or other action. The publication of the notice must be in a newspaper published at least once weekly and having a general circulation in the city. However, if the city has a population of 200 or less publication may be made by posting in three public places in the city which have been permanently designated by ordinance. In addition, if a newspaper is not published in the city, as opposed to circulated, the city may also post ordinances and amendments at the three public places as an option to publishing.
Cities are not required by the Iowa Code to publish employee salaries. However, an Iowa Attorney General’s opinion (#78-4-7) says that city council minutes need not reflect the monthly salaries paid to each employee so long as the salaries are published at least once annually.
It is not necessary for a newspaper to be physically located in a city to be considered having general circulation. Code Section 618.3 provides that for a newspaper to be used for official publication it must meet the following criteria:
1. It is a newspaper of general circulation issued at a regular frequency that has been published within the area and regularly mailed through the post office of entry for at least two years.
2. It has a list of subscribers who have paid, or promised to pay, at more than a nominal rate, for copies to be received during a stated period.
3. It devotes more than 25 percent of its total column space in more than one-half of its issues during any 12-month period to information of a public character other than advertising.
4. It is paid for by at least 50 percent of the persons or subscribers to whom it is distributed.
The majority of cities with populations of more than 200 will have a newspaper that fits the above criteria and will therefore be required to publish.
There are several items that cities may decide to publish that are not required by law.
• Notices of job openings are not required to be published in the newspaper. However, the Veterans Preference Law (Code Chapter 35C) requires that the opening be posted 10 days prior to filling the position. The notice is to be posted at the place where the city agenda is posted.
• There is no legal requirement to publish minutes of other boards and commissions.
• Ordinances or amendments to ordinances are not required to be published verbatim. A summary of the ordinance is acceptable.
• There is no requirement to publish an ordinance prior to its consideration where the council intends to adopt the ordinance at one or two council meetings.
• There is no requirement to publish the city council agenda, only to post 24 hours in advance.
City codes may have publication requirements that are more restrictive than the Code of Iowa.
Iowa Code Section 279.36 requires school publications to be published "in at least one newspaper published in the district or, if there is none, in at least one newspaper having general circulation in the district.” While there have been no court cases to test this language, it’s the INA’s opinion that a newspaper is "published” where its main office is located and where it is entered into the mail stream."
Currently, advertising and newspaper circulation are exempt from the state sales tax. It is always of concern that Iowa politicians may be tempted to eliminate some of the exemptions to the sales tax. They could claim that they passed no “new taxes” since the sales tax is not a new tax. Instead, they could argue they just made the tax “fairer” by subjecting more products and services to the tax.
A sales tax on advertising is a bad idea for Iowa
Broadening the sales tax to include advertising services would be a mistake. It would have a huge negative affect on the Iowa economy.
A sales tax on advertising would slow economic growth – Advertising is the most economically efficient means of marketing a product or service. From drug stores to supermarkets and auto dealers, advertising is the cornerstone of their marketing efforts. Expanding the sales tax to advertising would result in higher advertising costs. When the cost of advertising goes up, there is less advertising, which leads to less consumer demand. Lower consumer demand reduces revenue, creates fewer jobs, slows the economy and reduces its usefulness as a revenue source.
Advertising expenditures have a huge impact on the Iowa economy – Recent studies by Global Insight show that a tax on advertising reduces local employment and personal income by substantial amounts (study summary attached). According to the research, advertising is an economic force that helps generate $57.6 billion in total economic activity in Iowa. Sales of products and services generated by advertising help support 251,209 Iowa jobs.
A sales tax on advertising would hurt Iowa companies competitively -- Advertising dollars that are currently spent in Iowa would be shifted to media agencies outside the state. Iowa advertising firms would be at a competitive disadvantage when trying to secure national or regional advertising.
A sales tax on advertising has been tried unsuccessfully in other states -- Since 1987, when the state of Florida repealed its advertising sales tax, 40 states have considered and rejected such a tax. Florida’s experience is instructive. During the state’s six-month experiment, its department of revenue processed 12 million magazine advertising transactions alone, the administrative cost of which exceeded the tax collections. After an outcry from advertising firms, the media, and the tourism industry when advertising fell by 12 percent, the tax was repealed in a special session. The political fallout was extensive.
Other states have learned that defining what “advertising” to tax is impossible -- State government and businesses would need an army of accountants and lawyers to administer the tax.Some of their questions: does taxable advertising include business cards? Sales calls? Telephone calls? Websites? Logos on clothing? Storefront signs? Sports arenas? Racecars? Ads for tax-exempt merchandise? Convention booths? What about advertising prepared in Iowa but run only in other states? What about advertising messages sent via email or via text messages over mobile phones?
A tax on advertising creates a new layer of hidden taxes --This is multiple-taxation. Advertising is not an end product, such as a bar of soap, which is already subject to the state sales tax. Since a large portion of any tax on a business is generally passed on to the consumer, families would end up paying a “double sales tax” for most products and services.
CNA never goes into a sales presentation with any pre-conceived notion of which newspapers should be included in the final proposal to the advertiser. Rather, the CNA Account Executive learns everything he/she can about that advertiser, its target market, its demographic market, its budget, its goals, etc. and makes a recommendation based on that information. The advertiser always determines the markets. For example, it we are making a presentation to an advertising agency representing an auto dealer association group in a given DMA (designated market area), we will initially propose every newspaper in the DMA or every newspaper market that has a dealer (of the given manufacturer-Ford, Chevy, etc.) in the DMA. The agency will determine the final markets in which it will advertise, not CNA. It will generally make that determination based on its target market and its budget. It is CNA's hope that by moving dollars from broadcast to print, it can begin to make progress toward adding additional markets and securing more advertising for all Iowa newspapers.
CNA is almost always selling to advertising agencies. When sales budget targets are developed, the Sales & Marketing Director begins by determining the two-year sales history for all accounts and identifying those representing 80 percent of all CNA sales during that period. Each of these accounts is then consulted to determine its anticipated budget for the coming year. Some accounts are able to provide a lot of helpful information, others very little. The staff then identifies those accounts planning to substantially increase, reduce or eliminate their newspaper advertising budgets in the upcoming year. The resultant change in dollar volume is then either added or subtracted from the projected sales for the current year. Other factors considered include: newspaper rate increases (estimated based on a survey of newspapers); increased staff experience and the potential for new business.
According to INA Legal Hotline attorney Joe Quinn, it depends on how the insert flyers will be used. There is no sales tax on insert flyers to be inserted in newspapers or shoppers. But sales tax would apply on insert flyers that will be distributed by direct mail or handed out in stores. The only exception would be if a newspaper acts as a wholesaler printing insert flyers for an ad agency on behalf of a client who plans to distribute them via direct mail or in stores. In that case, the sales tax would be charged to the client by the ad agency, not the newspaper serving as the wholesaler.
According to INA Legal Hotline attorney Joe Quinn, absent a contract or compensation for the creative work done on the ad, ownership is with the paper.
Each newspaper should adopt a policy statement. The statement should be approved by the highest ranking officer (usually the publisher) of the newspaper. A copy of the statement along with a cover letter explaining the newspaper's commitment to adherence of the Fair Housing Act should be distributed to the newspaper's employees. A sample policy statement follows: FAIR HOUSING LAWS: "The Federal Fair Housing Act prohibits discrimination in the sale, rental, leasing and financing of housing, as well as discriminatory advertising, on the basis of RACE, SEX, COLOR, RELIGION, NATIONAL ORIGIN, MENTAL or PHYSICAL HANDICAP, or FAMILIAL STATUS. (Our local jurisdictions also have specific applicable regulations.)
"These laws cover any potential or actual sale, lease, rental, eviction, price, terms, provileges or any service in relation to the sale of or use of housing. They not only prohibit advertisements which clearly restrict access to housing based on the protected categories, but also prohibit advertisements which indicate a preference for or against a person based on a protected category. In particular circumstances, use of colloquialisms, symbols or directions to real estate for sale or tent may indicate a discriminatory preference.
"It is the intent and goal of this newspaper to have each advertiser who wishes to place a covered advertisement in the newspaper comply with the Fair Housing laws. Any advertisement which is perceived to contain language contrary to these laws will be rejected or changed to remove the offending reference. There may be situations where it is not clear whether particular language is objectionable. Such advertisements should be referred to a supervisor for consideration and determination. Under certain circumstances, advertisers may claim that because of the nature of the housing being advertised, they are not subject to the Fair Housing laws. Such claims are irrelevant for purposes of considering advertisements for publication in this newspaper. Every housing advertisement published in this newspaper is subject to the Fair Housing laws."
Anyone who makes, prints or publishes advertisements (or causes them to be made, printed or published) needs to be concerned about housing discrimination. This definition includes all advertising and media, i.e. broadcast, brochures, billboards, direct mail, flyers, newspapers, poster, shoppers, etc. This provision extends to prohibit the use of discriminatory words, phrases, photographs, illustrations, symbols or forms. The Department of Housing and Urban Development, which investigates complaints, takes the position that newspapers face civil suits if they publish advertisements that encourage discrimination (or even indicate a preference) relative to protected classes.
You might wonder if the Fair Housing Act and regulations hinders free speech as espoused in the First Amendment of the U.S. Constitution. The answer is NO. There is a distinction between free public speech and commercial speech. Advertisements are commercial speech and, thus, are subject to regulation. Newspapers are not in the practice of accepting advertisments for anything illegal, such as prostitution, stolen property or illegal drugs. Because discrimination is against the law, newspapers cannot accept ads that discriminate.
In order for newspapers to comply with all of the Fair Housing Act and regulations, publishers of housing advertisements should do the following:
- provide a printed copy of their nondiscrimination policy to each employee and officer;
- post copies of the policy in conspicuous locations in their businesses;
- make copies available in their businesses;
- include a Fair Housing notice at the beginning of the real estate advertising section;
- avoid referring to the kinds of people who might live in or buy a particular dwelling in advertisements.
The Fair Housing Act of 1968 begins: "It is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States." All subsequent provisions of the Act and its administrative rules are based on the premise that obtaining fair housing must be a choice free of practices or influences that would limit such choice because of race, color, religion, sex, national origin, handicap or familial status. "Blockbusting" and "steering" are two discriminatory practices that are specifically mentioned in the Act. Blockbusting includes engaging in conduct which conveys the impression that a neighborhood is about to undergo certain changes and, thus, panic owners into selling their properties. Steering involves guiding an individual seeking housing toward or away from particular property for discriminatory reasons. Suits can be brought against the persons who wrote and placed the ad, as well as against the persons who accepted the ad, the owner and management company of the property advertised, plus the newspaper management, publisher and owner. The Fair Housing Act covers all "dwelling units" or single units of residence for a family of one or more persons. The definition includes condominiums, cooperative and mobile homes. A dwelling unit can be all or part of any building or structure that is occupied or intended as a residence by a person or family. The only legal discriminatory housing transaction is one between private parties when there is no use of advertising, a real estate broker, an appraiser, or commercial financing. Use of any of these causes the Fair Housing Act provisions to be applicable. It is permissible to discriminate by sex for a roommate when living areas are shared.
Complaints may be filed by the following:
1. Individuals who believe they have been discriminated against;
2. HUD and other local, state and federal agencies;
3. Fair Housing organizations.
Anyone who can show that they have been "injured" by a discriminatory housing practice can file civil charges. The Act has expanded the number of protected classes as well as strengthened provisions for reflief for claimants and penalties against defendants. Injured parties have up to a year to file a claim with the Department of Housing and Urban Development (HUD). An aggrieved person is anyone who claims to have been injured by a discriminatory housing practice or who believes that such an injury is likely to occur. Injured parties include individuals for whom housing was made unavailable because of discrimination; however, fair housing organizations can also sue, charging interference with their efforts to promote equal housing opportunity. Suits are sometimes brought by ôtesters,ö persons hired to check for discrimination by pretending to be bona fide renters or buyers. Fines, damages and attorney fees may be awarded as the result of a successful conclusion of a complaint. Fines may begin at $10,000 and increase to as much as $50,000. Fines may be assessed against corporations, individuals and owners.
Describe the PROPERTY, not the seller, or the neighbors, or the landlord, or “appropriate buyers and tenants.” Seemingly harmless words can get newspapers into trouble.
It is important that words used in discriminatory contexts are avoided. Examples are: restricted, exclusive, private, integrated, traditional, board approval required. Some of these words, especially together or in certain local contexts, are used as “code” to create an atmosphere of discrimination. Beware of code words that carry hidden or subtle discriminatory meanings. When a word causes doubt, do without.
Furthermore, avoid symbols or logos that imply or suggest a preference based on one of the protected classes. Examples: crosses, the Star of David. By expressing a preference for one class of person, other classes are discriminated against. Such use might suggest to “outsiders” that they are not welcome in such a place. The use of human models in advertising is scrutinized in the same way that words are, because it is possible to indicate a preference for certain types of individuals by using certain kinds of models. The exclusive use of one kind of model can be interpreted as indicating a “non-preference” for persons in a protected class who do not look like the model. It does not matter whether the models are real individuals appearing in photographs or drawings in artists’ illustrations. When models are used in any series of housing advertisements, provide fair representation, over time, of the different kinds of people found in your market areas.
The common sense approach to Fair Housing advertising is to use language or artwork or photography that is inclusive, not exclusive. There are exemptions under the Fair Housing Act:
- Reasonable restrictions on the maximum number of occupants in a dwelling unit may be made.
- Under certain circumstances, religious organizations and private clubs may limit the sale, rental or occupancy of housing owned or operated for other than commercial purposes.
- The Act does not apply to an owner of dwelling containing living quarters for no more than four families (if the owner lives in one of the units), not to an owner of single-family dwellings (if the owner has no more than three). Yet it does apply if these same owners use a real estate broker and/or if they use discriminatory advertising.
For further reference of “Not acceptable,” “Caution,” or “Acceptable” words most frequently used in housing advertising see the list of words in the Fair Housing Guide listed below. Not acceptable: able-bodied, adult living, adult community, adults only, African, agile, alcoholics (no), Asian, bachelor, bachelor pad, blacks (no), blind (no), board approval required, Catholic, Caucasian, Chicano, Chinese, children (no), church(es) near, colored, couple, couples only, crippled (no), deaf (no), drinkers (no), employed (must be) , empty nesters, any ethnic references, exclusive, executive, handicapped (not for), healthy only, Hispanic, impaired (no), Indian, Irish, integrated, Jewish, landlord (description of), Latino, married, mature couple, mature individual, mature person(s), membership approval req., Mexican-American, must comply w/park rules, no play area, # of children, Oriental, Puerto Rican, retarted (no), singles only, Soc. Sec. Ins (no), tenant (description of), white only, mentally handicapped (no), Mormon Temple, nationality, non-drinkers, older person(s), one child, physically fit, quiet tenants, seasonal worker (no), single person, stable, unemployed (no), mentally ill (no), Mosque, newlyweds, non-smokers, one person, Polish, responsible, shrine, smokers (no), synagogue / near temple, white. Caution: active, close to country clubs / near desirable neighborhood, domestic’s quarters, female(s) only, female roommate, fisherman’s retreat, gays (no), gender references, gentleman’s farm, grandma’s house, golden agers only, handyman’s dream, lesbians (no), male(s) only, male roommate, man (men) only, mature, mother-in-law apartment, nanny’s room, near, no student(s), # of persons, prestigious, private, quality neighborhood, restricted, retired, retirees, Section 8 (no), secure, senior(s), senior citizen(s), senior housing, single woman/man, sophisticated, straight only, two people, walking distance of / within, woman (women) only. Acceptable: bus/MAX (near), credit check required, den, drinking (no), drugs (no), drug users (no), Equal Housing Opportunity, family (great for), family room, fixer-upper, near golf course, hobby farm, luxury townhouse, neighborhood name, nice, # of bedrooms, # of sleeping areas, nursery, nursing home, play area, privacy, private driveway, private entrance, private property, private setting, public transport (near), quality construction, quiet, school district, school name, secluded, security provided, senior discount, (no) smoking, # of square feet, townhouse, traditional style, tranquil setting, verifiable income, with view, view of.
According to INA Legal Hotline attorney Joe Quinn of the Nyemaster Law Firm, it is not illegal to let employees know they must be tobacco free as a condition of employment. Hence, the ad copy is legal.
Yes, the unauthorized use of the words "Super Bowl" or the Super Bowl logo could lead to prosecution. Both the words and the logo are trademarks. While they can be used in editorial copy, you must pay licensing fees to use them in conjunction with any advertising promotion. The NFL is very aggressive in tracking down violations, and employs "spotters" to look for unauthorized uses of the words or logo. Even a seemingly innocuous reference to a Super Bowl sale is in violation if proper fees are not paid. A merchant selling products that have already been licensed by the NFL can promote the sale of these items in advertising, provided the appropriate wording is used. For instance, the Super Bowl beer sponsor can be described as the "official beer sponsor" but not as the "official beer."
The Iowa Code is not perfectly clear on this matter. It states "any person, firm, company, etc. who offers for sale, exposes for sale, sells at retail or uses or explodes fireworks...commits a misdemeanor." We would advise not running the ads. If you decide to run them, at the very least you should insist on including the language ôvoid where prohibited.ö But to be safe, just avoid the ads altogether.
1. If the sponsor is an individual (or individuals), the attribution must provide the full name and complete mailing address of each person who is responsible for or is paying for the ad. The name(s) shall be preceded by the Phrase "Paid for by.”
2. If the sponsor is an organization, the full name and complete mailing address of the organization responsible for the ad must be shown, again preceded by the phrase "Paid for by." In addition, the name of at least one officer of the organization must be shown.
3. If the sponsor is a registered political committee (one which has filed a Statement of Organization with either a County Auditor or the Iowa Ethics and Campaign Disclosure Board), only the name of the committee must be shown, again preceded by the words "Paid for by." In the case of a newspaper ad bearing many names or signatures of supporters where including addresses would be difficult and expensive, the addresses may be placed on file with the Board or County Auditor and this fact noted in the ad. If a sponsor is donating labor or materials rather than paying for the advertising, the disclaimer statement should begin "Labor (or materials) donated by." In instances of joint sponsorship, both a "donated by" and a "Paid for by" may be necessary.
Yes. However, these rules exist:
A lawyer shall not communicate with the public using statements that are false, deceptive, unfair or unverifiable. Advertising permitted under these rules shall not rely on emotional appeal or contain any statement or claim relating to the quality of the lawyer’s legal services. In all communications the lawyer may use restrained subjective characterizations of rates or fees such as “reasonable,” “moderate,” and “very reasonable,” but shall avoid all unrestrained subjective characterizations of rates or fees, such as, but not limited to, “cut-rate,” “lowest,” “giveaway,” “below-cost,” “discount,” and “special.”
Lawyer advertising may be communicated to the public in newspapers, periodicals, trade journals, “shoppers,” and other similar advertising media. Listings in the classified section shall be under the general heading “Lawyers” or “Attorneys,” except that a lawyer who (qualifies by rule to be) listed in classifications or headings identifying those fields or areas of practice. Information permitted by these rules, articulated only by a single nondramatic voice, not that of the lawyer, and with no other background sound, may be communicated by radio or television, or other electronic or telephonic media. In the case of television, no visual display shall be allowed except that allowed in print as articulated by the announcer. The INA Legal Hotline advises members to let the attorney determine the content of the ads. That way, if there’s ever a problem, it will be the attorney’s.
According to INA Legal Hotline Attorney Joe Quinn, in this particular case, the appearance of an employee is a valid requirement for employment. Therefore, it would not be illegal to use the word “attractive” in the ad.
The words “Final Four” and “March Madness” are among the National Collegiate Athletic Association’s list of registered trademarks. The unauthorized use of these and other words registered by the NCAA could lead to legal action.
In conjunction with its championships, the NCAA has developed licensing and marketing programs that make use of its trademarks and championships marks. Such programs are carefully controlled and aggressively protected to be consistent with the purposes and objectives of the NCAA. Any direct or indirect usage of the NCAA’s championships, tickets or marks/logos (including references to the name of the NCAA championship) requires prior written consent of the NCAA and its corporate marketing staff.
Federal regulations support the NCAA’s efforts to prohibit the unauthorized use of the NCAA’s name and trademarks, or any use of NCAA championship tickets in sweepstakes, promotions or contests or any other unfair attempt to associate with or exploit the goodwill of the NCAA championship event.
A merchant selling products that have already been licensed by the NCAA to official corporate partners or merchandise licensees can promote the sale of these items in advertising, provided the appropriate wording is used, and the advertising is submitted by the NCAA corporate partner to the NCAA corporate marketing staff for approval.
The U.S. Code says the U.S. flag should ╥never be used for any advertising purposes in any manner whatsoever.”
A New York Court of Appeals case said that this federal law is "not intended to prescribe behavior, but it is an extension of prevalent customs, and thus the provisions are not to be accorded the full weight of statutory prohibition.”
So, you may run into trouble if you use a flag to sell merchandise or services. But if you are showing the flag as an illustration to sell a flag kit or flag poles, you’re probably all right.
The NNA’s handbook "Federal Laws Affecting Newspapers” has this to say on the subject: "While the language of a federal statute would indicate that the flag may not be used in any ads whatsoever, at least one court has held that the provisions are not to be accorded the full weight of a statutory enforce this prohibition.”
INA Legal Hotline attorney Joe Quinn advises that this phrase be removed from the ad. The general rule of thumb for housing and employment ads, according to Joe, is to advertise the property or the job, not the person it is "perfect” for.
According to the INA’s Legal Hotline attorneys, at one time, the FDA had written regulations on this topic. However, a subsequent U.S. Supreme Court decision ruled that the FDA did not have the authority to impose such rules so they became moot.
After a large group of states sued a group of tobacco companies about promotion aimed at young people, all sides agreed to a master settlement agreement. That agreement limits what a cigarette manufacturer may do in advertising but does not affect a merchant selling cigarettes since the merchant was not a party in the lawsuit.
So, there would be nothing prohibiting a merchant from running such an ad. The attorney recommends that the Surgeon’s General warning be included in the ad. While there is no guidance in the master settlement agreement regarding the minimum type size of the warning, the words "SURGEON GENERAL’S WARNING” should be in all caps.
According to the INA Legal Hotline Attorneys, there is no law against individuals selling firearms unless they are licensed dealers.
According to the INA Legal Hotline Attorney Joe Quinn, the Ford dealer’s ads are likely in violation of the copyright and/or trademark law. They most likely do not have a license or permission to use these trade marks. While they could list in regular script the various makes they service they can not use the trademarks or logos.
According to INA Legal Hotline attorney Joe Quinn, using Ladies Night or free drinks or admission to ladies is in violation of the Iowa Civil Rights Statute. The newspaper running such an ad would have no legal responsibility but may wish to advise the advertiser to check with their attorney before placing such an ad. In any case, newspapers are cautioned to not give advertisers any legal advice on this or any other matter.
Iowa’s Alcohol Beverage Control Act (Iowa Code Chapter 123) only empowers the Alcohol Beverages Division of the Department of Commerce to set wholesale prices and not retail prices. Therefore, it does not prohibit a bar from advertising and offering free drinks. The bar owner, however, should contact the Department of Revenue and Finance as it is likely the bar will have to pay a sales tax on the drinks that are given away. Also, if a cover charge is required the drinks are technically not free and that creates a false advertising issue. The Alcohol Beverages division spokesman responding to this question encouraged a bar owner to contact his or her attorney for guidance before initiating a "free drinks” promotion. Questions regarding Iowa’s alcoholic beverage laws can be directed to the Alcohol Beverages Division at 515-281-7432.
October 1 is the filing deadline for your periodical class Statement of Ownership, Form 3526, with the post office.
Publications issued more frequently than weekly should publish the Statement of Ownership no later than October 10. This applies to dailies, semi- and tri-weeklies.
Publications issued weekly or less frequently but more often than monthly should publish the Statement by October 31. This applies to weeklies.
All other publications should publish the Statement in the first issue after October 1. This applies to infrequent publications such as quarterlies, bi-monthlies, etc. All periodcal-class authorized publications must publish such a statement. A reproduction of the Form 3526 submitted to the Postal Service may be used for publication.
Yes, according to Max Heath, NNA Postal Committee Chairman. Max says "if it’s paid for, it’s advertising and should be so measured. It does not have to be marked 'ADV' but it should be marked on the marked copy to show how the ad measurement was derived. Most folks just put a slash mark and perhaps the inches measured on the item on the page. We can’t have it both ways. If we want to get paid, it will drive up ad percentage.
"I’d like to remind folks that the ad percentage is only used to count zone-rate copies outside the county, and has no effect on in-county postage.”
Q. If a newspaper is one of several owned by the same owner and the newspaper has an office (desk) in its community but no staff on site (since the staff is located in a central location in a nearby county assembling all the publications) what should it list as its headquarters address on its sworn circulation statement....and if the answer is the headquarters location, will this jeopardize the newspaper’s in-county rate status since the headquarters is in another county?
A. National Newspaper Association Postal Committee Chairman Max heath says "I believe that if some type of office is maintained in the community, and the circulation happens to be handled at a central administrative location, listing that location is proper, and would not jeopardize in-county rate status. What you describe is not all that uncommon these days. They just need to know where to access the records or visit if necessary.”
Thanks to the work of the National Newspaper Association and others, the answer is yes. NNA Postal Committee Chairman Max Heath says newspapers may also count any copies in-county delivered through an out-of-county post office, as well as count all copies going from an in-county post office that wander into another county.
Yes. According to the Des Moines mailing requirements office, you may lend the use of your bulk mail permit to anyone.
HIPAA is the Health Information Portability and Accountability Act, passed by Congress to improve health insurance coverage. In 1999, the U.S. Department of Health and Human Services (HHS) created HIPAA privacy regulations that affect news reporting of accidents, disasters, health of public officials and other stories involving medical information. The HIPAA Privacy Rule went into full effect on April 14, 2003. It restricts what health and medical professionals may disclose about a patient, unless specific consent is given.
Reporters may ask whatever they wish. But sources may not be free to answer. As an example, the American Hospital Association suggests these guidelines for hospitals:
-if a patient didn’t opt out of the directory, hospitals may confirm his or her presence, but only if a reporter already knows the name;
-if presence can be confirmed, they may provide a one-word statement of condition (e.g. “satisfactory”); -they should handle a public official’s information the same as a private citizen’s;
-AHA recommends that they permit reporters to go to patient rooms only with a hospital escort. Under HIPAA, the posting of lists of injured persons in a public place during an emergency and releasing lists of admitted persons would not be permitted, unless proper notification to each patient was given in advance.
More information on the American Hospital Association’s guidelines is available at www.aha.org."
State Treasurer Michael L. Fitzgerald oversees a program that reunites Iowa owners to their missing property when it has gone unclaimed for a period of time. Over the years Iowa newspapers have been partners in assisting the State Treasurer’s Office in reuniting owners with their unclaimed property through the publication of the Great Iowa Treasure Hunt. Additionally, the Iowa State Treasurer’s Office continues to search out corporations which historically have not reported owners of unclaimed property, to ensure that all owners of unclaimed property are eventually reported and remitted.
In that spirit, the Iowa State Treasurer’s Office wants to remind publishers that they have a legal responsibility to annually report and remit abandoned property. Examples of abandoned property commonly held but not limited to, are deposits, refunds from ads, payroll checks, other refunds, credit balances or outstanding checks issued for goods and services. Iowa Code Chapter 556 requires publishers to review their records each year and determine whether they hold funds, securities or other property considered unclaimed. Property considered abandoned or unclaimed owed to an Iowa resident or corporation must be reported to the state after it has been outstanding for three years from the date the obligation had become due and owing. When a newspaper has determined that it holds property, it should attempt to communicate with the owner before the property is turned over to the State Treasurer’s Office. This can be done by sending a letter to the last known address of the owner, in which the letter notifies the owner of the existence of the property and encourages them to contact the newspaper to make a claim for the property.
The Treasurer’s office has an Unclaimed Property Reporting Booklet available on its web site at www.treasurer.state.ia.us that covers much of this information. Reports and remittances are due to the State Treasurer’s Office each November 1, for the period ending June 30. Keep in mind, if the newspaper does not have any unclaimed property to report they still should file a one page negative report. The form must be signed and notarized and is also due on November 1. Finally, newspapers are also encouraged to check the web site to determine if the State Treasurer’s Office holds any unclaimed property belonging to the newspaper. For questions regarding the law, filing an unclaimed property report, early reporting, periods to be covered and other compliance issues please contact the Unclaimed Property Division of the State Treasurer’s Office at (515) 281-5644 or email firstname.lastname@example.org.
This board policy was developed with advertisers and the general public in mind. Since the directory is sent to hundreds of advertisers and advertising agencies, the board wanted to make sure potential advertisers and others could find information about any INA member paper as easily as possible. For example, if the reader wanted to look for the newspaper in Westside (The Observer), it’s much more likely that he or she would look under the W’s rather than the O’s. The listing for Westside reads Westside - The Observer. The word Westside is in larger type to make sure people see it as the city where the paper is located - not the newspaper name.
t is the INA’s policy to deduct dues from ad checks for any member newspaper which requests the deduction or for any member whose dues become more than 90 days past due. For the vast majority of newspapers, ad check deductions more than cover annual dues costs. But if we’re unable to deduct the total amount due from a newspaper’s ad checks by the end of the year, we’ll bill that paper in December for the balance due.
Over the years, the INA has developed an effective grassroots lobbying network to enable members to support or oppose legislation affecting newspapers. An effective network can be compared to a three-legged table. So long as each of three legs is sturdy and dependable, the table will serve its purpose well. But if one leg falls, the entire table falls.
In our network, the first leg is our paid lobbyists. For more than 30 years, we have used several contract lobbyists from the Nyemaster Law Firm, Iowa╒s largest firm. Their integrity and effectiveness are known quantities both at the INA and among lawmakers. They have lived with our issues long enough to know them well. Their job is to identify any bill or amendment that relates to newspapers and to quickly notify the INA Executive Director. They also write legislation at the INA's request, make persuasive arguments to legislators on the INA's behalf and advise the INA on legislative strategy.
The second leg is our staff. Prior to each session of the legislature, the staff surveys the membership to learn which INA members know which legislators. This information, along with members - and legislators - e-mail addresses, is entered into the INA's computer system. The staff also works with the Government Relations Committee to identify legislative priorities and to prepare position papers relating to key issues affecting newspapers.
Once the INA Executive Director is notified by the lobbyists of a bill affecting newspapers, the general membership is informed by reports in the INA Bulletin. The staff also sends e-mails and letters to selected INA members who know specific lawmakers assigned to review the bill in committee or subcommittee. These alerts list the number of the bill, its impact on the newspaper profession, the INA's position on the bill and arguments for or against the bill. The e-mail alert contains a hotlink displaying the e-mail address of the member's legislator(s). By clicking on the link, the member can compose an e-mail message for his/her legislator concerning a specific bill and send it immediately to the legislator.
Which brings us to the third and most critical leg of the network-the INA member. While lawmakers respect the INA's lobbyists and staff, that credibility pales in contrast to the credibility of publishers in a lawmaker╒s district. Many members have close personal relationships with their legislators. Even if that's not the case, legislators want to know what their publishers are thinking. History has shown that, more often than not, they will try to respond to the wishes of the publishers.
So, if all three legs of our network are strong -If the lobbyists do a good job of identifying bills as soon as (or even before) they are written; -If the staff does a good job of notifying selected members about bills being considered by legislators from their district;-And if the members then contact their legislators urging support of the INA's position, we will continue to have a high degree of success protecting the newspapers of Iowa in the legislature.
Over the years, management has learned that most board members are willing to support staff compensation at a level which allows the association to attract and retain good people...but not spend a penny more. Consequently, there are no across-the-board raises at the INA. Each employee's contribution to accomplishing the missions of the INA companies is considered when raises are recommended. Several evaluation tools are used to help management measure each employee's contribution to accomplishing our corporate missions. They include reviewing semi-annual self-evaluation and supervisor evaluation forms for each employee, surveying the Des Moines marketplace to determine the annual average increase in payrolls and establishing salary ranges for all employees. Performance bonuses are paid only when specific performance goals previously approved by the INA Compensation Committee have been achieved by employees. Neither performance goals nor pension (401K) contributions are paid unless the INA staff meets the staff budget target. Approximately 35% of the total personnel expenses in the INA's annual budget will not be paid unless sales, performance and budget goals are met. INA management has learned the hard way over the years that training new people in key positions is much more expensive than retaining them with competitive compensation. A diligent effort has been made to keep our employees adequately challenged and rewarded to avoid these costly turnover expenses.
The staff prepares the budget for board review, discussion, possible revision and approval. While the boards are not directly involved in writing the budget, the boards’ policies adopted over the years dictate both the budget’s form and most of its content. As member committee recommendations on new and existing programs have become board policy, the staff and boards have worked together to budget for them.
The major staff input is the budget’s advertising sales projections, estimates of operating expenses and recommendations for staff compensation. The Compensation Committee (INA officers plus the INF and INA Services Co. presidents) previews, reviews, modifies and approves the staff personnel compensation recommendations before the budget goes to the Finance Committee. That committee, also made up of board members, reviews, modifies and approves the entire budget before it goes to the three boards for final review and approval.
Among the items that must be included in the masthead: the name of your newspaper and the USPS number assigned to your newspaper, the name and address of your office of publication, the imprint “Periodicals Postage Paid at...” or, if mailed at two or more mailing offices, “Periodicals Postage Paid at...And at additional mailing offices.” It should also include the issue date and issue number. These two items, however, can be omitted if they are on the front page. The mailing address for change of address orders should also be included and read, “POSTMASTER: Send address changes to (newspaper name and mailing address).
Chapter 349.1 of the Iowa Code states that the county board of supervisors shall select the official county papers "at the January session each year.” The INA recommends that newspapers wishing to receive this designation request it in a letter to the board of supervisors each year in December.
The U.S. Department of Labor says the new regulations do not change the duties test for the creative professional exemption, which is the most common exemption under which journalists and reporters are tested. The creative professional exemption applies if the employee's primary duty is work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor (e.g., the fields of music, acting, writing and the graphic arts), as opposed to routine mental, manual, mechanical or physical work. Work that can be produced by a person with general manual or intellectual ability and training is not exempt as creative. The requirement of creativity distinguishes the work of a creative professional from work that primarily depends on intelligence, diligence and accuracy. Since employees' duties vary widely, and the creative professional exemption depends on how much invention, imagination, originality or talent is actually exercised by the employee, the determination of whether an employee is exempt as a creative professional must be made on a case-by-case basis. Relying upon federal case law, the final regulations clarify that employees of newspapers, magazines, television and other media are not exempt creative professionals if they only collect, organize and record information that is routine or already public, or if they do not contribute a unique interpretation or analysis to a news product. For example, reporters who rewrite press releases or who write standard recounts of public information by gathering facts on routine community events are not exempt creative professionals. Reporters whose work products are subject to substantial control by their employer also do not qualify as exempt creative professionals. However, employees may be exempt creative professionals if their primary duty is to perform on the air in radio, television or other electronic media; to conduct investigative interviews; to analyze or interpret public events; to write editorial, opinion columns or other commentary; or to act as a narrator or commentator. Thus, journalistsí duties vary along a spectrum from the nonexempt to the exempt. The less creativity and originality involved in their efforts, and the more control exercised by the employer, the less likely journalists are to be considered exempt. There is no "across the board" exemption for journalists; nor has there ever been. Rather, each determination must be made on a case-by-case basis, as is the case with all job classifications. The majority of journalists, who simply collect and organize public information, or do not contribute a unique or creative interpretation or analysis, are not likely to be exempt. Nothing in the new rules relieves employers from their contractual obligations to journalists and reporters under collective bargaining agreements. In addition, journalists and reporters paid by the hour are entitled to overtime.
Yes. The Department of Labor Overtime protections have been strengthened for inside sales workers. New rules strengthen overtime rights for inside sales employees. First, in the final rule's preamble, the Department expressly states that it ìdoes not have statutory authority to exempt inside sales employees from the FLSA minimum wage and overtime requirements under the outside sales exemption. Second, under the administrative exemption, the final rules include an example protecting the overtime rights of inside sales employees: "[A]n employee whose primary duty is selling financial products does not qualify for the administrative exemption."
An employee whose primary responsibility is outside sales is considered exempt, meaning an employer does not need to pay an employee overtime wages, or concern itself with minimum wage requirements. An outside sales employee is defined as an individual who has a primary employment duty of making sales or obtaining orders or contracts for services/use of facilities AND who regularly performs the primary duty away from the employer’s place of business
INA Legal Hotline Attorney Joe Quinn has this advice: ╥I would recommend that the newspaper have a solid contract clearly identifying the relationship as that of independent contractor. More importantly, they need to actually operate as an independent contractor relationship.
The paper shouldn’t control anything but the outcome. The carrier should be responsible for all tools of the trade. If possible the carrier should be responsible for his profit or loss. There are many different entities that may have a stake in whether the carrier is an employee or a contractor such as the IRS or the Department of Labor. This would also include a work comp carrier as it wants to make sure they are charging a premium for a person who may make a claim alleging to be an employee.
One thing the paper might want to do is be sure they are offering insurance coverage as required by Iowa Code sec 92.23. This should help support the position that they are truly treating it as an independent contractor relationship.
Freedom of Information
The open meetings law defines a meeting as "a gathering in person or by electronic means, formal or informal, of a majority of the members of a governmental body where there is deliberation or action upon any scope of the governmental body’s policy-making duties.” The definition further states that ╥meetings shall not include a gathering of members of a governmental body for purely ministerial or social purposes when there is no discussion of policy or no intent to avoid [sidestep] the purposes of this chapter.”
Councils and their advisory commissions need to exercise caution. For example, a majority of the city council may travel in the same vehicle to a League workshop. This activity is a gathering, not a meeting under the open meetings law. However, the gathering becomes a meeting if there is deliberation of public matters or intent to avoid the law. For example, if one of the riders says, "What do you think of that proposed ordinance the city clerk distributed last week?” the gathering has just become a meeting and the law has been violated. Another common situation arises where members of the city council meet on an informal basis, such as at the local coffee shop, and allow their discussion to stray to city business. Again, this qualifies as a meeting under the open meetings law. It is important to restrain from talking about city business except in strict compliance with the statute.
Meetings must be held in a place reasonably accessible to the public and at a time reasonably convenient to the public. If for good cause such place or time is impossible or impractical, the nature of the cause justifying the departure from these requirements must be stated in the minutes.
Yes. Government bodies are authorized to close a meeting "only to the extent a closed meeting is necessary” for certain reasons listed in Code of Iowa section 21.5.
1. A governmental body may hold a closed session only by affirmative public vote of either two-thirds of the members of the body or all of the members present at the meeting. A governmental body may hold a closed session only to the extent a closed session is necessary for any of the following reasons:
a. To review or discuss records which are required or authorized by state or federal law to be kept confidential or to be kept confidential as a condition for that governmental body’s possession or continued receipt of federal funds.
b. To discuss application for letters patent.
c. To discuss strategy with counsel in matters that are presently in litigation or where litigation is imminent where its disclosure would be likely to prejudice or disadvantage the position of the governmental body in that litigation.
d. To discuss the contents of a licensing examination or whether to initiate licensee disciplinary investigations or proceedings if the governmental body is a licensing or examining board.
e. To discuss whether to conduct a hearing or to conduct hearings to suspend or expel a student, unless an open session is requested by the student or a parent or guardian of the student if the student is a minor.
f. To discuss the decision to be rendered in a contested case conducted according to the provisions of chapter 17A.
g. To avoid disclosure of specific law enforcement matters, such as current or proposed investigations, inspection or auditing techniques or schedules, which if disclosed would enable law violators to avoid detection.
h. To avoid disclosure of specific law enforcement matters, such as allowable tolerances or criteria for the selection, prosecution, or settlement of cases, which if disclosed would facilitate disregard of requirements imposed by law.
i. To evaluate the professional competency of an individual whose appointment, hiring, performance, or discharge is being considered when necessary to prevent needless and irreparable injury to that individual’s reputation and that individual requests a closed session.
j. To discuss the purchase or sale of particular real estate only where premature disclosure could be reasonably expected to increase the price the governmental body would have to pay for that property or reduce the price the governmental body would receive for that property. The minutes and the audio recording of a session closed under this paragraph shall be available for public examination when the transaction discussed is completed.
k. To discuss information contained in records in the custody of a governmental body that are confidential records pursuant to section 22.7, subsection 50.
l. To discuss patient care quality and process improvement initiatives in a meeting of a public hospital or to discuss marketing and pricing strategies or similar proprietary information in a meeting of a public hospital, where public disclosure of such information would harm such a hospital’s competitive position when no public purpose would be served by public disclosure. The minutes and the audio recording of a closed session under this paragraph shall be available for public inspection when the public disclosure would no longer harm the hospital’s competitive position. For purposes of this paragraph, “public hospital” means a hospital licensed pursuant to chapter 135B and governed pursuant to chapter 145A, 226, 347, 347A, or 392. This paragraph does not apply to the information required to be disclosed pursuant to section 347.13, subsection 11, or to any discussions relating to terms or conditions of employment, including but not limited to compensation of an officer or employee or group of officers or employees.
2. The vote of each member on the question of holding the closed session and the reason for holding the closed session by reference to a specific exemption under this section shall be announced publicly at the open session and entered in the minutes. A governmental body shall not discuss any business during a closed session which does not directly relate to the specific reason announced as justification for the closed session.
3. Final action by any governmental body on any matter shall be taken in an open session unless some other provision of the Code expressly permits such actions to be taken in closed session.
4. A governmental body shall keep detailed minutes of all discussion, persons present, and action occurring at a closed session, and shall also audio record all of the closed session. The detailed minutes and audio recording of a closed session shall be sealed and shall not be public records open to public inspection. However, upon order of the court in an action to enforce this chapter, the detailed minutes and audio recording shall be unsealed and examined by the court in camera. The court shall then determine what part, if any, of the minutes should be disclosed to the party seeking enforcement of this chapter for use in that enforcement proceeding. In determining whether any portion of the minutes or recording shall be disclosed to such a party for this purpose, the court shall weigh the prejudicial effects to the public interest of the disclosure of any portion of the minutes or recording in question, against its probative value as evidence in an enforcement proceeding. After such a determination, the court may permit inspection and use of all or portions of the detailed minutes and audio recording by the party seeking enforcement of this chapter. A governmental body shall keep the detailed minutes and audio recording of any closed session for a period of at least one year from the date of that meeting, except as otherwise required by law.
5. Nothing in this section requires a governmental body to hold a closed session to discuss or act upon any matter.
The Iowa law defines public records as "all records, documents, tape or other information, stored or preserved in any medium.” So even though e-mails are not mentioned by name, that language is incredibly broad. E-mails are clearly public records just as much as paper documents or audio tapes. Don’t let anyone tell you otherwise.
Most local governments go to great lengths to tell their employees that government computers are owned by the government, that the information stored on the computer belongs to the government, and that government employees have no "expectation of privacy” regarding this information.
Further, public records law defines a public record as any paper record or computer disk "of or belong to” the government. So if it is on a government computer, it is a public record.
You are only entitled to require people to identify themselves under very limited circumstances. Generally, a person who requests public records is not obligated to identify themselves at all. In very few circumstances access to records is restricted by statute to certain classes of persons. For example, motor vehicle accident reports are only available to a "party to an accident, the party’s insurance company or its agent, the party’s attorney, or the attorney general, on written request. . . .” Iowa Code ñ 321.271 (1999). Under these circumstances the agency may need to inquire about the identity of the requestor in order to avoid disclosing the reports to those who are not authorized by statute to have access.
Neither state nor federal law have a stated requirement about how long a custodian has to respond to a request for information.
The Openness Defense Fund provides support for lititation and educational programs to better acquaint Iowans with Iowa access laws. The program is supported by grants from the Iowa Newspaper Association and the Iowa Broadcasters Association, and is open to the associations’ members; it is coordinated by the Iowa Freedom of Information Council. The Fund is especially targeted towards smaller newspapers exasperated by continuing, egragarious open meetings and records violations in their communities, in situations where all other attempts to obtain compliance have failed and the only recourse is to sue the officials or agencies involved. It will defray up to one-third or $3,500 of litigation costs, whichever is the lesser.
Find out more at http://ifoic.org/openness-defense-fund/.
According to the Iowa Freedom of Information Council's Open Meetings, Open Records Handbook, a 1991 Iowa Supreme Court case addressed this question and its ruling provides some helpful guidance. According to that ruling, "The content of a tentative agenda can be subject to change - A proper construction of the notice provision in section 21.4 allows discussion and action on emergency items that are first ascertained at a meeting for which proper notice was given - However if action can reasonably be deferred to a later meeting, this should be done." So, if an unforeseen emergency topic not listed in the agenda comes up, it may be discussed. But Iowa's Supreme Court says action on such items discussed should be postponed if possible to a meeting where action on the item can be included in the tentative agenda.
According to the Iowa Freedom of Information Council's Open Records/Open Meetings Handbook, the Iowa Supreme Court has ruled that closed sessions of open meetings must not include issues not listed on the agenda. An agenda for a public meeting must specifically state any issues the board intends to discuss in closed session, and discussing topics not noted on the agenda violates the law, even if the public could have anticipated the issues would arise.
According to the Iowa Freedom of Information Council's Open Meetings/Records Handbook, an Iowa Attorney General's opinion makes it clear that material prepared for discussion at a public meeting is a public record and should be included in the agenda packet received by your newspaper provided that you have requested a copy of the full agenda packet in advance of the meeting and provided that you agree to pay copying charges should they be incurred.
Exemption 22.7(11) by its terms sheilds only "personal information in confidential personnel records" from disclosure.
In the case Des Moines Independent Community School District Public Records v. Des Moines Register & Tribune Co., 487 N.W.2d 666 (Iowa 1992), this exemption was analyzed by the Court with mixed results. The Court first stated that a settlement agreement under which public funds were paid to a former school principal must be disclosed even though the agreement related to a personal matter and its express terms called for confidentiality. However, the Court gave wide latitude to the trial court's interpretation of exemption 22.7(11). The Supreme Court affirmed the lower court determination that information gathered by an in-house investigative committee in connection with complaints of racism and sexism was contained in "job-performance" documents that the Legislature intended to remain secret. The Supreme Court thereby, in this case, upheld the trial court's interpretation that "personal information in confidential records" was not limited to "personal" data and could be extended to records not contained in a personnel file. This approval of the apparent extension of 22.7(11) to "job performance" information may be used by government agencies to keep many aspects of job performance and evaluation information secret unless the General Assembly takes action to narrow this interpretation of the exemption.
The case, however, does nothing to affect longstanding standards of public access to salary information, and other records not directly related to job evaluation. In Clymer v. City of Cedar Rapids, 601 N.W.2d 42 (Iowa 1999), the Supreme Court further addressed what personal information about a public employee is a matter of public record. The Court ruled that the public should have access to information concerning a public employee's sick leave benefits - including pay, dates taken and hours accrued. (It is likely, however, that additional information about an employee's medical condition, including the reason for using sick leave, remains "personal information." Other payroll information that a governmental body may release includes the employee's full name, department, job title, hire date, bargaining unit, and complete and detailed information about monetary compensation. However, the employee's gender, home address and birth date are personal and may be kept confidential.
Yes. According to INA Legal Hotline Attorney Joe Quinn, the Iowa Open Records Law does not exempt such documents and there is at least one court case to support the position that they are public records.
In Iowa, city councils, as well as their advisory bodies, are required to comply with the open meetings law (Code of Iowa, chapter 21). The law applies to meetings of governmental bodies. For cities, the law specifically defines a governmental body as ╥a board, council, commission, or other governing body of a political subdivision or tax-supported district...” It further applies the law to ╥an advisory board, advisory commission, advisory committee, task force, or other body created by statute or executive order of this state or created by an executive order of a political subdivision of this state to develop and make recommendations on public policy issues.”
The first definition applies the law to city councils and the second definition applies the law to boards and commissions created by a city code. For example, this includes groups such as the planning and zoning commission. In addition, it may include committees established by executive order, such as an ad hoc building committee created by the council. The open meetings law favors openness and cities should always consult with their city attorney to interpret the state law if they are unsure whether a group’s meeting must comply.
Meetings must be held in a place reasonably accessible to the public and at a time reasonably convenient to the public. If for good cause such place or time is impossible or impractical, the nature of the cause justifying the departure from these requirements must be stated in the minutes.
Yes. Cities must give public notice for each meeting held. The notice must include the time, date and place of each meeting and the tentative agenda. "Reasonable notice” is defined to include advising the news organizations which have filed a request for notice and posting the notice on a bulletin board or other prominent place easily accessible to the public and clearly designated for that purpose at the city’s principal office. If no such office exists, the notice should be posted at the building where the meeting will be held. Notice shall be given at least 24 hours prior to the meeting.
Yes. Each governmental body is required to keep minutes of all its meetings showing the date, time and place, members present and action taken at each meeting. The minutes must also show the results of each vote taken and contain information sufficient to indicate the vote of each member present. The minutes are public records open to public inspection.
In addition, the minutes of council meetings must be published. Section 372.13 of the Code mandates that "Within 15 days following a regular or special meeting of the council, the clerk shall cause the minutes of the proceedings of the council, including the total expenditure from each city fund, to be published in a newspaper of general circulation [as defined in the Code, chapter 618] in the city. The publication shall include a list of all claims allowed and a summary of all receipts and shall show the gross amount of the claim.”
The meeting must begin in open session with a call to order and a roll call. In order to go into closed session, there must be a motion to hold a closed session that is approved by two-thirds of the members or all those present. The minutes must record the votes of individual council members on the question of holding a closed session. In addition, the motion and minutes must state the exemption under section 21.5 that permits a closed session. Once in closed session, the council must not discuss any other business or topic that does not directly relate to the reason for the closed session. Upon completion of the closed session, a motion and vote must be taken to end the closed session and return to open session.
The city must tape record and take minutes of the meeting. Both minutes and tapes are required to be sealed and may not be opened except by order of a court. The minutes and tape are required to be kept for at least one year, unless an enforcement action is initiated. In that case, the minutes and tape must be retained until the litigation is completed. In the case of the purchase of real estate, the minutes and tape recording must be disclosed when the purchase is finalized.
No. The council must return to open session to take final action on a measure discussed in closed session. The courts have identified certain exceptions. The courts have stated that the council may give direction to its attorney on the settlement of litigation while in closed session. In any event, it is important that city officials consult with their city attorney on this matter.
According to the Iowa Attorney General, law enforcement officers investigating motor vehicle accidents resulting in injury or death to any person or resulting in total property damage to the apparent extent of one thousand dollars or more must forward a written report to the Department of Transportation. Iowa law specifies who can receive copies of the reports filed with the Department of Transportation by an investigating officer and who can receive copies of the report retained by a law enforcement agency of the investigating officer. The report filed with the Department of Transportation and any copy retained by the law enforcement agency of the investigating officer is available by statute only "to any party to the accident, the party’s insurance company or its agent, the party’s attorney, or the attorney general, on written request and the payment of a fee.” Notably, the more specific statute governing motor vehicle accident reports under Iowa Code chapter 321 would prevail over the more general statute governing peace officers’ investigative reports under Iowa Code chapter 22 which otherwise may make available date, time, specific location, and immediate facts and circumstances surrounding the incident.
Of course, the investigating officer may generate a separate peace officers’ investigative report in the course of investigating an accident. For example, when a death results the investigating officer may make a separate and more comprehensive report in addition to the report required to be filed with the Department of Transportation. If so, this report would be treated as a peace officers’ investigative report and disclosure of information would be governed by Iowa Code section 22.7(5). Accordingly, the date, time, specific location, and immediate facts and circumstances surrounding the accident would be disclosed as public record, except when disclosure would "plainly and seriously jeopardize an investigation or pose a clear and present danger to the safety of an individual.”
According to INA Legal Hotline attorney Joe Quinn, Iowa law does not make any specific exception for confidentiality of the reports. So the custodian can take the position that they are never public. Keep in mind that the custodian can always voluntarily release the report if he or she wants. We could also argue that if there was a release to anyone outside of the agency then confidentiality is waived as to everyone. Also, there does appear to be cases where because of the age of an investigation or other unusual circumstances a court might way the public interest in favor of disclosure vs. the need to maintain confidentiality and order disclosure. But it would take going to court to force release if the custodian refuses.
Just because the information that a student is charged with or convicted of a crime has been made public, doesn’t mean all of his or her student records are automatically open. So, the fact that a student is on the sex offender registry only gives you that information. It doesn’t give carte blanche to the rest of the student’s files.
According to INA Legal Hotline Attorney Joe Quinn, if no insurance carrier was involved, all records relating to the settlement are public. If an insurance carrier was involved, Chapter 22.13 of the Iowa Code states that "a written summary of the terms of settlement, including amounts of payments made to or through a claimant, or other disposition of any claim for damages made" shall be filed with the governmental body and made a public record.