Floyd County Board of Supervisors Meeting
April 5, 2010, 10:00 AM
The Floyd County Board of Supervisors met for a special session at 9:00 a.m. on Monday, April 5, 2010 in the Board Room of the Floyd County Courthouse with the following in attendance: Supv. Dunkel, Chair, Supv. Enabnit and Supv Staudt.
Enabnit/Staudt moved to approve the agenda as presented. Motion carried 3-0.
The Board noted that no action will need to be taken regarding Lisa Adelmund, Chamber/Revitalization Financial Project Coordinator, attending grant training in Lincoln, Nebraska due to the cost of the funding being covered with unused funds available from last year’s county contribution for Lisa’s wages.
The Board noted the receipt of a resolution from the City of Charles City authorizing a loan agreement and a general obligation corporate purpose note in the amount of $58,600 and providing for the levy of taxes to pay the same.
The Board noted the fees collected from the Auditor, Recorder, and Sheriff for the quarter ending March 31, 2010.
Enabnit/Staudt moved to recess the meeting until 9:30 a.m. and continue in the General Assembly Room. Motion carried 3-0.
Enabnit/Staudt moved to reconvene the meeting in the General Assembly Room. Motion carried 3-0.
At 9:30 a.m. Chairman Dunkel announced the public hearing per Iowa Code Chapter 69.2.2 regarding the determination of whether a vacancy exists in the County Attorney’s office with respect to officeholder Jesse M. Marzen. Approximately 25 people attended the hearing. The Auditor reported that she received no written or oral objections or support on the issue. Dunkel presented the following exhibits: Exhibit #1, the decision of the Iowa Supreme Court ruling that Jesse’s license to practice law has been suspended; Exhibit #2, the proof of publication notice for this hearing which was published on March 24; Exhibit 3, a copy of the certified letter dated March 22 from the Supervisors to Marzen regarding notification of this hearing; Exhibit 4) The Board of Supervisor’s special meeting agenda for today’s meeting. With no other exhibits or evidence submitted, Dunkel asked for public comment. Roger Sutton, attorney for Marzen, read Iowa Code Chapter 69.1A, “except when otherwise provided, every officer elected or appointed for a fixed term shall hold office until a successor is elected and qualified unless the officer resigns, or is removed or suspended, as provided by law.” It is Sutton’s position that Marzen has not resigned, he has not been removed and he has not been suspended; Marzen’s license has been suspended but when he took the office he was fully qualified and met the criteria required of a county attorney. The fact that since that election he no longer meets the criteria as to his license is being suspended, Sutton argued that is not what they are speaking about in Chap 69.1A. Under Chapter 331.754, in the absence of a county attorney or assistant, Sutton stated the authority of this board is limited to simply appointing an interim county attorney until such time the attorney is available to be reinstated to practice law. Sutton’s opinion is based on the only two other cases he knows of in the state of Iowa where in both cases the county attorney resigned but the timing of the Supreme Court suspension was incident to the elections themselves. Sutton remarked on a comment he heard about “it being too bad the Supreme Court didn’t wait to do the suspension while he was up for election,” but be that as it may, it was a circumstance that was orchestrated to ensure the Supreme Court acted. Sutton believes that Chapter 69.2.2, in regard to a vacancy or removal of office, needs to be read in conjunction with section 69.2.1.e because what the Board is really doing is seeking to do the removal of an incumbent, or forfeiture of office, or a decision declaring the office vacant and reading section 1a through h, Marzen does not meet those qualifications given the circumstances of the intent of the law. Sutton stated that the Board is entitled to appoint an interim county attorney and is entitled to address other questions that may arise but the Board is not entitled to declare a vacancy given the circumstance that this office is still filled, albeit that his client cannot practice law; Marzen is still the county attorney and is entitled to fill his elected term. Sutton stated that we have to remember that Marzen will be able to obtain his license, have three and a half months to run on his term, and he still has the option to declare and certify that he intends to run in August as an independent as he did in the past. Sutton believes that the attitude of declaring a vacancy and the terms of declaring a vacancy are contrary to the law and will result in long term problems throughout the county; the Board could solve the problem simply by appointing an interim attorney and that the acts in the steps being taken are contrary to the best interest of the county and of his client. Russ Schroeder, local attorney, stated that his understanding of a suspension and the process to be reinstated is not automatic and believes you have to ask the bar association, or grievance commission, or whatever it is that this goes in front of, that you be reinstated. Schroeder is curious if anyone has asked the Attorney General’s office, who has a specific duty to render opinions in cases like this, for an opinion and if not, he suggests before the Board makes a decision to contact that office. Dunkel commented that the Board has been in contact with the Attorney General’s office numerous times since March 19 and they gave guidance on Chapter 331.751, regarding the office of county attorney which states that a person is not qualified for the office of county attorney while the person’s license to practice law in this state is suspended or revoked and that Chapter 69.2 reads that “every civil office shall be vacant if”, specifically item 1b, “a failure of the incumbent or holdover officer to qualify within the time prescribed by law” and with the suspension he reads that to indicate that they are not prescribed. Schroeder commented that the Board has done their homework, they have gotten the opinions, and will act from there. Schroeder appreciates the work the Board has done. Doug Lindaman referenced the sentence in section 331.751.2, “a person is not qualified to practice law while suspended” was added at a later point to clarify what the facts of law meant and it is his observation that the legislature has looked at this and helped to clarify it for this Board by adding that statement. Sutton commented that in the notes of decision, Iowa Code section 69.2(7) [Duty of Officer Receiving Resignation], states the generally related attitude is that all elected county officials with 60 days absence constitutes a vacancy except for a medical emergency which was later enacted and in that particular case, an interim county attorney is appointed. Sutton stated that the County does not have a vacancy because the Board filled it with appointing Norm Klemesrud. The fact that his client cannot act as the county attorney because of loss of license is being confused with the fact of that being a qualification to be elected; he remains to be elected and the fact that he can’t function in that capacity because of the law license is a temporary condition, not permanent, but will be resolved in a period of time. In reading Chapter 331.754, absence of county attorney and assistants, Sutton argues that it is very clear if the county attorney is absent, you simply appoint an interim appointment and Marzen will only be absent for a period of six months. He said the law says that his license is suspended for six months and if he takes the steps necessary prior to that six month period he will be eligible to retain his license at the end of the six month period. Sutton believes the Board should take the step to get a published opinion from the Attorney General and make it official for the citizens and the county to review and meanwhile, nothing negative is going to occur during this period of time. Sutton believes Klemesrud is a fine and competent man and will take care of the office. Sutton said there is no harm by not acting but by acting, if the board is wrong, there could be substantial harm to his client’s family, to his client’s name, and to the county in regard to proceedings that have been enacted to this point. Sutton argued that sometimes doing nothing far outweighs doing something just because you think you have to. Sutton asked the board to not act at this point in time, to wait until the board has a valid, legal opinion in writing from the Attorney General that can be published and to not let this go to an adjudication of a court and have a judge make a determination. Sutton hopes the Board will give his position due consideration because there is absolutely no prejudice by not declaring a vacancy. Dunkel said his opinion based on his conversation with the Attorney General’s office is that there is no case law for them to render an opinion; this is a unique situation that has never happened before and they would be happy enough to see this go before a judge although it would be at the expense of Floyd County. In response to Sutton’s remarks about no harm being done by taking no action, Dunkel commented that he sees a problem for the citizens of Floyd County who need legal assistance in the courts and we are running a department too much on an interim basis. Sutton responded that Dunkel’s comment makes little sense from the point of view that six months is a very small spatial time and expressed concern about it not being in the best interest of the county to throw this into a court system and having insurance coverage and insurance lawyers defending this issue. Sutton said the Attorney General cannot refuse to give an opinion; they have to render an opinion, be it that they say “we don’t have an opinion”, “we have an opinion”, or “there has not been any other opinions” but in the 50 states, he would guarantee there is probably an opinion that could be some type of legal precedence for where we are going and to simply create the potential for litigation is just not appropriate for a government body. Dunkel said he asked for a written opinion and was told it is simply out of their scope and they referred the county to private counsel and the Code of Iowa. In response to Sutton’s question asking for something in writing from either the Attorney General’s office or private counsel, Dunkel responded that he does not have anything in writing but he spoke with Mike Bennett or Thomas H. Miller from the Attorney General’s office. Schroeder asked if there was some financial consequence to the county that would obligate the citizenry to continue to pay salary. Dunkel responded that he thinks that is part of the question that cannot be answered because there are no prior circumstances but would guess that a “reasonable man test” would say that if someone has a law license suspended, why would a governmental body continue to pay wages for someone that is not capable of doing the job. Schroeder agreed to that commonsense reaction and continued that there may also be a commonsense reaction to the vacancy/no vacancy issue, meaning if a there is a vacancy there would be no obligation to continue to pay salary but if there is not a vacancy you may have the obligation to continue to pay salary. Schroeder said he is not attending the hearing to give legal opinions but rather attending because he is interested in the question and wonder if the vacancy issue also has an effect on the salary. He poses this question because he thinks the people in this county care if they are paying for two lead prosecutors. Dunkel commented that is the undercurrent or the other side of the coin as to why we are having the hearing. Lindaman commented that if a person is disqualified for office that is one thing; if a person is disabled that is another and in his opinion, if Marzen is disqualified and still in office the county would have to pay him. His question to Sutton is with regard to when looking at the restrictions in the code as to qualification, if that only applies to “going in to office” as opposed to “already being in office.” Sutton responded that the statute addresses going in to office and does not address the issue of one of those qualifications prior to completion of the term; the code is very specific on the disability question but is not at all specific on this question and he reiterated that sometimes doing less is doing more and that to bull your way through this is not the way to handle these types of things as there are too many issues such as pay for the entire time suspension period or not. Sutton urged that you do not have to prove a point to resolve an issue and asked again that the Board not declare a vacancy given the circumstances. With no response to Dunkel’s question asking if there are any other comments, the hearing was closed at 9:56 a.m. Dunkel moved to the next agenda item regarding review and action of whether a vacancy exists in the county attorney’s office with respect to officeholder Jesse M. Marzen. Upon request by the Board, Beth Hansen, attorney representing the County, commented that the points that people have provided reflect the status of the law in that there is currently very little case law which is what lawyers depend upon in interpreting what statutes say. She said it is clear that in order to be a county attorney, one must have a law license in order to qualify to be a county attorney. Hansen continued that the law also specifically says that a person is not qualified for the office of county attorney while the person’s license to practice law in this or any other state is suspended or revoked and when you read that section in context of what constitutes a vacancy, the issue for this situation is the failure of the incumbent or holdover officer to qualify, emphasizing the word “qualify”. Hansen substantiated that the Board is entitled to hold such a hearing as they are holding today, also under chapter 69, by which contemplates that the Board of Supervisors, which can fill a vacancy should it occur, has the opportunity to hold a hearing and upon hearing the comments of the public, including those of the incumbent officeholder, has an opportunity to make a decision of whether or not there is a vacancy. Hansen provided that the Iowa Code allows the person who has been declared no longer operating in that office or that a vacancy has occurred can appeal to district court so there is an opportunity for Marzen and his attorney to take this a step further should they desire to do so, but it is up to the Board based on what they have heard today and with the review of the Supreme Court decision in consultation with their attorney to make a decision as to whether or not they believe a vacancy has occurred which she believes that is the place where we are at in this hearing. Sutton asked for an opportunity to respond to Hansen’s statements. Upon granting that opportunity, Sutton questioned how to resolve the issue that the vacancy is not permanent and Marzen will become eligible to resume the duties of his office three and a half months prior to the election but instead if the Board determines a vacancy then they may be faced with a lawsuit to undo the vacancy and that this really is a temporary situation and the Board cannot declare it more than that because of the term issue. Sutton continued that this goes to the thinking of the Supreme Court of Iowa when they, in all likelihood, were waiting and wanting to declare this suspension so that it would end up after the election. Suttons expressed concern that if the Board is stuck with declaring a vacancy but do not have a reason, that becomes negative when Marzen tries to get his license back and because he is the elected official, he should be able to step back in that office. Sutton commented that the Board’s alternative is only to declare a special election and all they are doing is buying litigation which seems totally inappropriate for this board to get themselves involved in that to prove a point. He suggested the Board let this issue ride because they have a prosecutor and no citizen in this county is going to be deprived of the protection of the prosecution. With no legal foundation or precedent, Sutton stated it does not make sense for the Board to take action to declare a vacancy. Dunkel expressed concerns of a six month suspension to consider for the people of the Floyd County having access and a right to full representation by which the court system needs to be available and he doesn’t believe the word “interim” is a positive thing for the citizens. Another concern of Dunkel’s is the issue of wages if the Board does not declare a vacancy. Karen VanderLee, citizen, commented about the things that Marzen has been found to be guilty go directly to the practice of law and if it were something outside of that she would have no concern but she does not want the county attorney to be someone who has abused his position in the practice of law even if his license is reinstated. She is horrified that someone who has done those things would continue to represent this county. Hansen reminded Dunkel that comment time has been closed. Kim Marzen, Jesse Marzen’s mother, was granted time to comment and asked VanderLee if she knew her son personally and remarked that she could say things about her too. Due to feeling intimidated by VanderLee, Marzen was unable to continue with her comments. Supv Staudt commented that his decision would be based on whether Marzen gets paid during this six month period. Without doing complete research on this issue, Hansen responded that she did not think Marzen could be employed and paid as the county attorney when he does not have a valid law license and to do so would be the unauthorized practice of law. Supv Dunkel questioned if the board does not vacate the office and Marzen is still the office holder what would prevent him from coming to the Board and saying “pay me” but commonsense would say that if you cannot do the job, you shouldn’t get paid. Sutton expressed concern about discussing this issue as it is not on the agenda. Dunkel stated he believes it is appropriate to discuss because it is part of the vacancy issue and part of the ramifications. Sutton commented that he understands the Board has suspended Marzen’s pay and whether or not you declare a vacancy versus he is not performing the duties of the office believes Hansen’s position is correct that Marzen is not entitled to pay because of a quantum meruit type of argument. Sutton said that is dependent upon what action occurs today. Supv Enabnit commented that he believes we need to vacate the office so we can operate. Enabnit/Staudt moved to declare that the office of Floyd County Attorney held by Jesse M. Marzen has been vacated as of March 19, 2010 and that the Board appoint a successor to fill the vacancy until the canvas of the next election, be it a special election or the next general election, based upon:
A. The comments and testimony of the persons present at the hearing; and
B. The exhibits presented at this hearing including but not limited to the March 19, 2010, decision of the Iowa Supreme Court ruling that Jesse M. Marzen’s license to practice law be suspended for six months; and
C. The fact that Jesse M. Marzen no longer meets the qualifications required by Iowa Code Section 331.751 for a person elected as a county attorney; and
D. The authority granted to this Board under Chapter 69 of the Iowa Code and Section 331.322(3) to determine if a vacancy exists and to appoint a successor.
Roll call vote: Enabnit/Staudt/Dunkel-all ayes; motion carried 3-0.
Staudt/Enabnit moved to appoint Norm Klemesrud as the county attorney effective today to fill the vacated office and the unexpired term of Jesse M. Marzen or until such time as the canvas of the next election, be it a special election or the next general election. Roll call vote: Staudt/Dunkel/Enabnit-all ayes; motion carried 3-0.
Staudt/Enabnit moved to recess from the General Assembly Room and to return to the Board Room for a closed session meeting to discuss strategy with legal counsel in matters where litigation is imminent per Iowa Code Chapter 21.5.1c. Roll call vote: Dunkel/Enabnit/Staudt-all ayes; motion carried 3-0.
The Board continued in a closed session meeting in the Board Room at 10:22 a.m.
Enabnit/Staudt moved to go out of closed session at 11:18 a.m. Roll call vote: Ayes-Staudt/Enabnit/Dunkel. Motion carried 3-0.
Staudt/Enabnit moved to take no action regarding the closed session regarding where litigation is pending or imminent. Motion carried 3-0.
A motion was made by Supervisor Enabnit and seconded by Supervisor Staudt to adjourn. Motion carried 3-0.
ATTEST: ________________________________ ____________________________________
Gloria A. Carr Warren K. Dunkel, Chair
Floyd County Auditor Floyd County Board of Supervisors