After months of hearsay, Muscatine City Council plans to proceed with its rumored threat to remove Mayor Diana Broderson from office on yet to be revealed charges at the Thursday City Council meeting.

The Mayor has not received the substance of those charges as yet, and first learned of the charges when Thursday’s city council agenda was publicly posted on the City of Muscatine’s website. http://www.muscatineiowa.gov/Archive.aspx?AMID=37&Type=Recent

Over the summer, the council passed an ordinance that stripped the Mayor of her appointment powers (read about that here: http://www.bleedingheartland.com/2016/06/20/take-back-muscatine/

While state code permits city councils the right to establish appointment duties for most city board and commissions, the Mayor questioned the legality of removing the mayor’s power to do so for the Civil Service Commission – the body that ultimately decides the eligibility of individuals to serve as Police and Fire Chief. Section 400 of the Iowa State Code http://coolice.legis.iowa.gov/Cool-ICE/default.asp?category=billinfo&service=IowaCode&input=400.1 details the rules governing Boards and Commission, and Section 400.1 relates to the appointment of civil service commissioners. Because the language seemed to indicate that this is a power granted only to the Mayor, Senator Taylor was asked to make an inquiry with the Iowa Department of Justice, Office of the Attorney General. See their response, issue in October, here:

The AG’s office’s response, “…no, there is no authority for city officials of a city having a population of eight thousand or over and having a pad fire department or a pad police department to diverge from the requirement of section 400.1,” seemed to substantiate the Mayor’s suspicions, so the Mayor forwarded the letter to the Muscatine County Attorney’s office requesting it take action to declare that part of the ordinance invalid.

But in December the County Attorney responded, declining to proceed with any sort of prosecution against city council the attorney or city attorney. See the letter here

Which takes us to the present moment, one month later, when the council will remove the mayor from office. This requires a 2/3 vote of the council, and given past vote counts in this ongoing saga between the mayor and council, the city manager has the votes he needs to get this accomplished. But at what cost? Across the nation, we are experience a cynicism when it comes to government that is a direct threat to the very institutions of democracy itself. Removing a mayor from office is an extreme act usually reserved for only the most egregious of offenses, felony crimes or other criminal behavior.

At this point, such a move seems politically motivated, and plays into the cynicism the public feels toward government. It is a sad day indeed.

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THE OFFICE OF THE MUSCATINE COUNTY ATTORNEY
Alan R. Ostergren County Attorney
420 E. Third Street Muscatine, Iowa 52761-4104
Phone: (563) 263-0382 Fax: (563) 263-4944
http://www.co.muscatine.ia.us attorney@co.muscatine.ia.us

Assistant County Attorneys: Korie L. Shippee Oubonh P. White Dan Williamson Joan Black

December 21, 2016

Hon. Diana Broderson Mayor, City of Muscatine
via email to: dbroderson@muscatiney.org

Dear Mayor Broderson:

This letter will be a follow-up to our conversation last week concerning the potential for criminal charges due to a recent amendment to City of Muscatine ordinances implementing provisions of Iowa Code Chapter 400. I have reviewed the letter you provided me from the Iowa Attorney General’s office to a state senator dated October 13, 2016. I have also examined the relevant changes to the ordinance.

Iowa Code § 400.30 provides:

The provisions of this chapter shall be strictly carried out by each person or body having powers or duties thereunder, and any act or failure to act tending to avoid or defeat the purposes of such provisions is hereby prohibited and shall be a simple misdemeanor.

There are no Iowa court cases which have construed this provision. It is not drafted in the normal manner for a criminal statute. It is difficult to determine the scope of the law and it would appear to be potentially applied to a vast range of conduct – particularly in criminalizing the failure to act and using the phrase “tending to avoid or defeat.” I have serious concerns as to whether it would be possible to prosecute anyone for a violation of this law because of the vague and broad way it is drafted.

I should also point out that the purpose of Chapter 400 is to protect municipal employees, not the mayor. An employee who has discipline upheld by an improperly-constituted commission might have a basis to challenge the action due to the change in the appointment process. This does not mean that the change would constitute a crime.

The attorney general’s letter does not undermine this view. The letter refers to the criminal law provision in section 400.30 to support its statutory analysis. I think this reference is appropriate, but it is not the same as a conclusion that a prosecution under these circumstances would be feasible. The letter simply notes the existence of the criminal provision as evidence that a court would likely view the remaining provisions of Chapter 400 in a strict and literal manner. It should also be noted that the letter is dated several months after the city council voted on the amendments to the ordinance.

I therefore find that there is no basis to proceed with any sort of criminal prosecution against city council members, the city attorney, or the city administrator.

Very truly yours,
Alan R. Ostergren
Muscatine County Attorney