Potential Legal Battle Brewing Between County And Emergency Management

Mahaska County Supervisors Willie Van Weelden (left) and Mark Groenendyk (right) lay out their case as to why they don’t believe the agreement between 911 and Mahaska EMA is invalid.

Legal battle brewing between elected officials on both sides.

Oskaloosa, Iowa – Mahaska County Supervisor Mark Groenendyk held a special session of Mahaska County Board of Supervisors to deliver evidence he believes proves that the 28E agreement between 911 and Emergency Management is invalid.

The special session was on Wednesday, April 18, 2017.

Groenendyk is also the vice-chair of Emergency Management, “and over the last year, it’s become fairly obvious that nobody really knows what their responsibilities are.”

“I think once we get into this it will become pretty apparent that some things took place that are not according to law.”

Those comments set the tone for Groenenyk’s presentation that included the original 28E agreement signed in 2015. He believes that 911 “does not have the authority to enter a 28E agreement.”

Groenendyk turned to an Attorney General Opinion from June of 1990 in which the E911 board would transfer its responsibility to another entity and disband. In that opinion, it was stated: “I do not believe a 911 service board can shift all of its statutory obligations pursuant to a 28E Agreement.”

The opinion also states, “While Code Ch. 28E allows a public entity to exercise its powers jointly with another public or private entity, the ultimate responsibility for performance of functions remains where it is statutory.”

The current 911 board for Mahaska County continues to meet to set its budget, sending the surcharge money to Mahaska County Emergency Management to use for equipment as required by law.

Groenendyk then looked deeper into Iowa Code 28E, and section .12. The law states that “Any one or more public agencies may contract with any one or more other public agencies to perform any governmental service, activity, or undertaking which any of the public agencies entering into the contract is authorized by law to perform, provided that such contract shall be authorized by the governing body of each party to the contract. Such contract shall set forth fully the purposes, powers, rights, objectives, and responsibilities of the contracting parties.”

Groenendyk said that the law outlines a public agency as “any political subdivision of this state; any agency of the state government or of the United States, and any political subdivision of another state.”

Digging into what constitutes a political subdivision, Groenendyk says according to administrative rules state, “a geographic or territorial division of a state that would have the following characteristics. A defined geographic area, responsibilities for certain functions of local government, public elections, and public officers, and taxing power. Excluded from this definition are departments and division of state government and agencies of the federal government.”

Using another 1990 Iowa Attorney General opinion, Groenendyk says it outlines what political subdivisions as, “political subdivision of the state is a geographic or territorial division of the state rather than a functional division of the state.”

Citing a 1976 Iowa Attorney General opinion in the next line states, “the following characteristics commonly associated with political subdivisions; (a) a defined geographic area; (b) responsibility for certain functions of local government; (c) public elections and public officers; and (d) taxing power.”

Groenendyk points towards the acceptance by the Secretary of State of the 28E agreement, where the website states, “The Secretary of State’s Office is a filing repository and does not determine the authority of a filer to make a submission. It is the responsibility of the authorized filers to frequently check the status of filings on the Website to ensure protection against submissions by an unauthorized party. If you determine that a submission was not authorized, it is your responsibility to seek legal action to protect your status.”

When looking into the county attorney involvement with a 911 Service Board, Groenendyk states, “The joint 911 Service Board is clearly intended to act as a governmental entity in the oversight of local 911 telephone systems.”

Groenendyk then turned to get the opinion of the county’s hired attorney Daniel Gonnerman, from Slater, Iowa “am I missing something.”

Mahaska County Attorney Jim Blomgren hasn’t been a part of the 28E discussion since he wrote an opinion last year on the subject. Supervisors felt that Blomgren was too busy with his regular case load to address this issue.

Groenendyk had asked for an opinion from Blomgren in June of 2017. In that opinion, Blomgren cited Iowa Code Section 28C.9. He said, “the local commission is to carry out the provision of Chapter 29C. Specifically, it is the responsibility of the local commission to develop and approve a countywide comprehensive emergency plan.”

“I agree with your assessment,” said Gonnerman in regards to the 28E agreement between Mahaska County E911 and Mahaska County Emergency Management.

Gonnerman says he believes the 911 service board is not a political subdivision.

“In the past year, I’ve heard several times that the EMA can do what they want to,” said Groenendyk. “They have unlimited authority on the county levy. Supervisors have no jurisdiction over their levy.”

“I’m going to challenge that theory tonight,” added Groenendyk.

Groenendyk challenged the opinion of the Iowa Attorney General in regards to Iowa Code section 331424 subsection 1. “I’ve heard that a lot. We’re a commission; we can fund it ourselves, we don’t need the supervisor’s approval.”

Groenendyk says that 29C.9 “The name used by the commission shall be the county name, county emergency management commission. The name used by the office of the commission shall be county name, which is Mahaska, county emergency management agency. For the purpose of this chapter, a commission is a municipality as defined in section 670.1”, which is the tort liability section.

Groenendyk says the 911 board is the same type of municipality, “it’s there for tort liability.”

Groenendyk pointed out that the Emergency Management’s current by-laws state that any levy must be approved by the Mahaska County Board of Supervisors, and haven’t been changed since 2002.

“It’s been said over and over again; we can do what we want, we have the county levy, they can’t stop us. The supervisors are the enemies right?” said Groenendyk who points towards the original 2002 document which then outlined that the levy must be approved by the board of supervisors.

“Since then, there’s been no update on the signatures,” added Groenendyk in regards to the 2017 updated by-laws for Emergency Management.

Groenendyk once again turned to Gonnerman to reaffirm his analysis.

“My interpretation of it is, that the original set of by-laws still are in effect because they were never properly amended because they are missing the signatures in 2017,” added Gonnerman. “Ultimately, the county still has discretion of whether or not to use a countywide special levy despite the wishes of Emergency Management.”

Gonnerman believes that the levy still remains at the discretion of the board of supervisors.

An updated set for 2017 was never completed after a Mahaska County official asked that the emergency management attorney resign from his position since he also works for the county’s insurance company.

Mahaska County Emergency Management Director Jamey Robinson said that the new by-laws would be prepared and updated soon since the commission hired a new attorney, Mike Mahaffy.

The Iowa Attorney Generals office has twice affirmed the ability of the Mahaska County Emergency Management Commission to use a levy that appears on the county property taxes. Language from the Iowa General Assembly, in 2012, struck the language.

In a letter from the Iowa Attorney Generals Office to officials in Mahaska County, including EMC and the Board of Supervisors (BOS), it states. “In 2012, striking the language requiring the BOS to approve the EMC’s decision to fund the Commission through a county-wide levy, removed the requirement for the BOS to approve such a levy under Iowa Code section 29C.17.”

“The process is consistent with other levies in the county budgeting system, where political subdivisions and boards certify tax levies to support their budgets and the BOS approves these levies as a ministerial action,” the letter states.

Members of the public and first responders attended the special session of the Mahaska County Board of Supervisors to hear why the Supervisors believe a 28E agreement between 911 and Mahaska EMA is invalid.

“I’m with Mark, I feel it’s not a valid 28E agreement,” said Mahaska County Board of Supervisors Chairman Willie Van Weelden. “Personally I think things should go back to the way they were. Separate 911 from Emergency Management. I felt that all along.”

“So I guess where we go from here, I guess, rests with the commission members,” added Van Weelden.

“The 911 board is still supposed to be in existence,” added Van Weelden.

The Mahaska County 911 Board meets annually to approve their budget and to pass through their surcharge money to Emergency Management for use in obtaining needed equipment for 911 service.

“That’s our stand on this. I guess we’ll take comments. I don’t know where we go from here, but we want all the commission members from these committees to hear what we have to say about this,” added Van Weelden.

Former Mahaska County Sheriff and current Mahaska County Supervisor candidate Paul DeGeest asked Van Weelden what the goal they, the Mahaska County Board of Supervisors, are wanting to accomplish.

Groenendyk told DeGeest, “I think we need to know what we’re really doing, and what money do we need to really do the task. We levied a million-sixty-thousand dollars, and nobody knew what we was levying it for. I’d like to know where our tax dollars are going and what they are used for.”

Groenendyk, besides being county supervisor, also sits as Vice-Chair of the Emergency Management Commission.

DeGeest questioned Groenendyk about that budget. Groenendyk responded, “The budget was presented, but nobody knew what it was for.”

“It wasn’t broken out,” said Van Weelden of the EMA budget.

After Emergency Management took over 911, those employees became EMA employees, and the budgets were melded together, as EMA staff oversees the 911 operations, as well as EMA.

Van Weelden said the board of supervisors “got a vague breakout” from EMA.

“To me, the goal is to be back like it was before we combined the two together,” added Van Weelden.

“Do you remember what it was like,” asked DeGeest of Van Weelden.

“Yeah, was it all that bad Paul?” asked Van Weelden.

“Yea it was,” said DeGeest. “The place was a mess.”

“So things haven’t changed?” Said Groenendyk.

Mahaska County Sheriff Russ Van Renterghem said, “I don’t want to make any comments that are derogatorily towards the previous dispatching. I was around for the previous dispatching, and obviously, I’m here for the current dispatching. There is no comparison. Mark, when you say well nothing’s changed, that is not true. I would put our dispatchers, or dispatch center up against any other agency in the state.”

Van Renterghem asked Groenendyk if he wanted both 911 and EMA separated. ‘

“Russ, this isn’t my choice,” said Groenendyk.

“I’m asking you, is that what you want Mark,” Van Renterghem asked.

“Yes, I want to follow the Iowa Code,” replied Groenendyk.

On Thursday, April 26th, 2018, the Mahaska County Emergency Management Commission gathered in the basement of the Mahaska County Law Center.

In a previous meeting, they moved to hire former Poweshiek County Attorney Mike Mahaffy as the commission’s attorney. Mahaffy is replacing Carlton Salmons, who had resigned after pressure from a Mahaska County official.

Mahaffy said he was asked to give his opinion on the 28E agreement between 911 and EMA, “There has been some question, recently, about the validity of that agreement.”

“It is my opinion that it is indeed valid,” said Mahaffy. “I say that for several reasons.”

Mahaffy talked about the qualifications of legal counsel, before him, that took part in crafting the 28E agreement. That legal counsel included Carlton Salmons, who he said, “is a well-known lawyer in the state of Iowa, and deals with these kinds of things on a regular basis.”

Mahaffy also talked about the credentials of the county attorney for Mahaska County, who previously served as the Chief Judge for the 8th Judicial District and who vetted the 28E agreement.

“It was vetted by the state of Iowa,’ continued Mahaffy.

“My review of the code sections in question leads me to believe that it is a valid agreement. It has been in effect for two years and seven months. There seems to be, at this point and time in Mahaska County, a question about the validity of that agreement.”

“That was raised last Wednesday night at a board meeting for the board of supervisors,” added Mahaffy.

“So the question becomes if that’s the case, and I think Willy you asked this question at that meeting last Wednesday night, where do we go from here?” Mahaffy said.

“Under the 28E agreement, there is a section that basically talks about what needs to happen if there is going to be a termination of the agreement. It is my opinion that what would have to happen is that someone would have to go to the district court and ask the district court to declare judgment as to whether or not it is a valid 28E agreement. I think that’s the way anyone would have to get out of the agreement,” said Mahaffy.

Mahaska County Emergency Management met this past week, hearing from their attorney that the 28E agreement is valid. The board then moved to send out their request for proposal for a new emergency radio system.

Mahaffy said that the 28E agreement was signed by the Mahaska County Emergency Management Chair at the time, Paul DeGeest, and the E911 Chair, Mark Doland, “and everything, as far as I’m concerned, is in order.”

Mahaffy said that Emergency Management can continue to operate under the 28E agreement “until you have a court order telling you that it’s not valid and you can’t operate under it anymore.”

The by-laws for the EMA Commission was the second point under review by Mahaffy.

Mahaffy said that work had been started previously on the by-law update, and recommended that the by-laws, under Roman numeral five, include the language to remove the approval of county board of supervisors, as referenced by the State Code of Iowa from 2012.

Mahaffy said he was asked about the responsibility of the radio system for emergency responders countywide.

“The great thing about America. There’s a difference of opinion in Mahaska County right now on some things. Nobody’s going to be taken out and shot because of their opinion,” said Mahaffy.

“In a letter to county attorney Blomgren there was discussion about how you would finance the radio system, and the question was who’s responsibility is it to manage that radio system. I think the responsibility is the commission,” added Mahaffy, who referenced a letter from Blomgren to Groenendyk last June outlining those specific reasons.

Mahaffy, trying to help put the dispute into perspective, said that there isn’t a renewed spirit of cooperation between the Board of Supervisors and the EMA Commission, there will be extra expenses of money on legal fees for taxpayers, “and being in court when you might be in a position to move forward with this [radio] project, sooner rather than later.”

Mahaffy offered a piece of advice on the situation between the Board of Supervisors and the EMA Commission. “You’re going to be much better off if you can figure out a way to work together on this issue for the benefit of the first responders and the citizens of Mahaska County.”