Supervisors Say EMA Levy Not Legal – Questions About 911 Future Being Asked

Oskaloosa, Iowa – Mahaska County Supervisor Mark Groenendyk presented documents that he believes show that an agreement between the 911 Board and the Emergency Management Association, or EMA, is invalid.

Between the arguments made at the supervisors meeting on Tuesday, and the EMA meeting on Thursday night, questions arose about who, and how, E911 operations are funded. The arguments gained in intensity during the week, as cities and EMA are up against budget certification deadlines, and have already published their budgets.

The Mahaska County Board of Supervisors state that the EMA levy isn’t legal, even though an opinion from the Iowa Attorney General’s Office states that it is legal.

If the matter isn’t fixed soon, the question will be, who will, and how will there be money to fund the 911 Center in Mahaska County.

Groenendyk stated that he’s been working for months on whose responsibility it is to fund 911. “Basically you go back to the inception of 911, which is 1988.”

“Chapter 34 has really not changed anything,” said Groenendyk of the funding aspect for 911 that he believes is all similar since 1988.”In 1993, the supervisors put together this proposal to all the service board members. That would be all the political subdivisions in our county.”

Groenendyk believes that the 28E agreement between E911 and the Mahaska County Emergency Management Association [EMA] is invalid, and the functions should be returned to 1993 funding and oversight.

The supervisors then called for a meeting of the EMA so they could outline their concerns.

An emergency meeting was called of the EMA by Sheriff Van Renterghem on Thursday evening, two days after the Mahaska County Board of Supervisors held their meeting.

The commission approved the hiring of Mike Mahaffey as the new legal counsel for Mahaska County Emergency Management.

Van Renterghem turned the floor over to the EMA Vice-Chairman and Mahaska County Supervisor Mark Groenendyk. “I went back and found the old records of the 911 service agreement. How I found that was, back in 1993, we we’re having the same discussion with the supervisors and cities as we are today.”

Groenendyk made the case that, in 1993 all the political subdivisions agreed and would be responsible for their own share of the budget.

Groenendyk said he believes that the 1993 agreement “is still relevant. I think it’s still binding.” The resson he says the current agreement is invalid is because a non-voting member of the E911 board made the motion to merge the entities. The vote passed unanimously.

“Who signed on behalf of the city, because my recollection is it was a city council member who cannot bind the city,” said Dustin Hite. Hite is also the Mayor for the city of New Sharon in regards to the 1993 document. Hite was making a similar point about what could be an issue with the original document from 25 years ago.

Oskaloosa City Council member and commission member Tom Walling read a statement from the documents given to the 911 and EMA boards when the 28E agreement was being looked at to have EMA run the 911 Center.

Walling said the information that the boards reviewed “was compiled by the State of Iowa E911 Program Manager, the Communications Bureau Chief and other EMA/911 directors in the State of Iowa. Every effort was made to make sure what we are about to review follows the laws published in 2015 Iowa Code.”

“Like I said, you pretty much have to be an attorney to sit here,” said Walling.

For the State of Iowa, their 911 division is under Emergency Management.

Groenendyk said that in his searches, he couldn’t find any documentation that funding would be on the county levy.

Hite said that the funding isn’t on the county levy, it’s on the emergency management levy.

Groenendyk said that he has nothing in 331424 allowing for a special levy for 911 services.

Hite said that the Iowa Attorney General’s Office shared an opinion that the Iowa General Assembly made changes to Iowa Code section 29C.17 in 2012 striking language requiring language from a board of supervisors (BOS) to approve emergency management commission 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.

“I don’t think the attorney general, which is just an attorney, it wasn’t an attorney general’s opinion, it was a representative of the attorney general writing a letter,” said Groenendyk.

“Right, an assistant attorney general,” said Hite.

“But what I am saying is though, 331424, I do have provisions to write the emergency management planning and coordinating under section 29C”, added Groenendyk.

Groenendyk is making the case that the supplemental levy can’t be used to fund 911 services in the county.

“Right, but it’s not the county providing funding, it’s the EMA,” said Hite. “And there’s a provision in 29C that allows the EMA, through its 28E agreement, to operate a joint communications system, which to me, 911 would be a part of the bigger joint communications system.”

“No your right, I think… well yeah, that goes back to 34A where it says and it would be a total and complete different entity, I don’t know,” added Groenendyk.

Groenendyk said that the supervisors never agreed to put the funding for EMA onto the county levy.

According to the 28E agreement signed by the Mahaska County Board of Supervisors in 2015, it states that funding would come from, “revenues which the Service Board receives under Iowa Code Section 34A.7 and, second, to the extent of insufficiency of such revenues, the levies and allocations authorized to the Commission, under Section 29C.17(2). The Service Board hereby dedicates and transfers the Commission all of its E-911 budget, including its emergency communications service surcharge funds, for purposes of providing the joint communications services assumed by the Commission.”

The agreement was signed by Mahaska County Supervisor Mark Doland.

Groenendyk continued to point out that the 911 budget is part of 34A, for 911 services, set up by the 911 board.

Groenendyk says that the funding really has to come from the board of supervisors, which is contrary to the Iowa Attorney General’s opinion on the subject. “There’s really no automatic levy. The Department of Management even says it takes the supervisors to approve this funding.”

“And the Attorney General said that’s ministerial, you guys have to do it,” replied Hite.

“And the Department of Management says they disagree with all that,” said Groenendyk.

“So let me ask you this. If you guys say no, and you tell the auditor don’t levy for that, do we close down the 911 center?” asked Hite of Groenendyk.

“I’m going to give them your phone number if we do,” Walling said to Groenendyk.

Groenendyk sat in silence until Mahaska County Sheriff Russ Van Renterghem asked Groenendyk a question. “What are you wanting to see happen? 911 and EMA separated?”

“Well, let’s just go back to your representative didn’t sign this and you’re not bound to it,” asked Groenendyk of Hite.

“I know you’re going to point out that the motion was not made by somebody who has authority,” said Hite.

“Correct,” said Groenendyk.

“I will tell you that you can search through the entire Iowa Code to find somewhere where a motion is required. We all do it, I do it in my meetings, but there’s no requirement, it’s the vote that matters,” said Hite.

Goenendyk said he has other information that would cast doubt on the validity of the vote that combined E911 and EMA.

“Russ asked the question, ‘What’s the goal?'” University Park Mayor George Toubekis redirected to Groenendyk.

“So, I’m just saying, I don’t think we have a binding agreement with the 911 Board to begin with to have the two merged,” said Groenendyk.

“Are you saying it’s a failure on the 911 Board for not voting it correctly?” asked Hite.

“Correct,” replied Groenendyk.

“So if we called a meeting on Monday and just revoted to approve the 28E agreement, would that solve that?” asked Hite.

“I think it’s going to have to be necessary at one time or another, but then I think you have to go back to the book too, because you’re the chairman, and according to the original agreement in the bylaws, the chairman has to be appointed by the board of supervisors,” replied Groenendyk. “So we’ve got to go back and redo the whole board to find out, to get the whole structure straight.”

“I don’t think you’ve sufficiently answered the question of, what are you shooting for here?” Pella Police Chief Robert Bokinsky asked.

“I don’t think we have a legal vote to have the two bind as we sit here today,” replied Groenendyk.

“Ok, and what do you want to happen?” Bokinsky asked.

“I think that needs to be resolved,” replied Groenendyk.

“Which way?” asked Bokinsky.

“Either way. I mean it’s up to the board. The board has to ultimately decide,” said Groenendyk.

“We’re up against budgets here, and you’re proposing that we dismiss the 911 Chair, and the board appoint somebody as 911 Chair. When is this going to happen?” asked Bokinsky. “We’re deep in a budget cycle. We’re talking about emergency services. 911, it doesn’t get any more serious than that. Do we really have to do this right now and put the entire county at risk?”

Groenendyk is stating that the lion share of paying for 911 is falling on the rural taxpayer, due to using the tax levy over a per-capita system.

“It’s not rural versus city,” said Hite.

“You’re right, it’s not,” said Groenendyk. “This is about equality.”

“Well, and so we’ve had the discussion. What is fair, what is equal, what is equal, what is fair,” said Hite. “You think it’s on a per person basis, is my understanding. But then the question becomes, we had a huge fire at a multi-million dollar commercial building, and so, in theory, nobody paid for that 911 call, under if we’re charging it per person. So how do we say that it’s not fair to charge based on valuation.”

“Nobody called 911 for the fire?” asked Groenendyk. “I guess I missed your point.”

“If you’re saying 911 ought to be based upon the number of people living in a certain area. My response to that, what do we do about those 911 calls that have nothing to do with people. That commercial fire, I assume used a substantial part of our 911 systems,” said Hite. “I assume that our dispatchers were busy with that most, if not all the day, and the next day and sixteen days after that. I don’t know, I haven’t asked, but I assume that was a big deal.”

“But under the theory that we ought to pay per resident, what I’m saying is under that theory, nobody paid for that use of the 911 system. Whereas if we did it based on valuation, that’s a commercial property, actually the highest tax paying type of property that you can have, based on valuation. That to me seems fair,” said Hite. “Because we’re doing it based on really what’s out there. But then I think back to the Chief’s point. What are we going to do if you’re saying none of this is valid? My city hasn’t budgeted to pay for the 911.”

“We have more than enough to put into that, because of the way it’s set up,” said Mahaska County Supervisor Willie Van Weelden from the visitor’s section.

“We have it covered, but the reality of it is though, if you go to Chapter 34A, we can hire a lawyer and have a lawsuit. Who’s emergency management going to sue to get their funding?” asked Groenendyk.

“Well we would sue the board of supervisors,” said Hite. “Saying approve our budget because the law says you have to.”

“I think you have to sue the 911 Board,” said Groenendyk. “Because they’re the ones ultimately responsible for the 911 service.”

“This county has so many lawyers and lawsuits and stuff, it’s ridiculous,” said Hite, while Groenendyk is heard chuckling at Hite’s comment. “And I’m a lawyer.”

“I’m just telling you, ultimately we’ve got this contracted through EMA. It’s still ultimately the 911 Board that’s responsible to provide the 911 service in this county,” said Groenendyk.

“And they did through a 28E agreement with the EMA,” replied Hite. “It’s no different than Adams Township has a responsibility under Iowa Code to provide fire protection. They do that by entering a 28E agreement with the city of New Sharon and saying you guys hire our fire protection. We had attorneys look at this left and right and up and down and the board of supervisors representative on both, on at least EMA board, at that time was an attorney.”

Hite asked Groenendyk if the county had the money to fund 911 at the current fiscal 2018-2019 budget.

“Yes we do,” replied Groenendyk.

Groenendyk then went back to his point that he’s unsure what the 911 budget is since all funding is now done through EMA. “We’ve not been given the numbers yet.”

Groenendyk reiterated his comment made in the supervisors meeting, that they the supervisors want to know exactly how much it costs to run 911.

EMA Director Jamey Robinson often works in the 911 center and oversees the day-to-day operation, and his time isn’t split specifically down to the different departments. Josh Stevens, Deputy Coordinator for EMA also fills in as needed for 911.

Those conditions have complicated the supervisors getting the total cost for 911 operations.

“Does anybody have a number?” asked Groenendyk.

“For the most part, our budget is mostly 911,” said Robinson in response to Groenendyk’s question.

The Emergency Management budget was set by the commission for 2018-19 at $1,060,773, which includes 911 services.

“No it’s not,” said Van Weelden. “Then it’s exploded in the last three years, Jamey. Really big if that’s your opinion.”

Robinson said he agreed that the cost for 911 has increased, “because when we took over, again, we had thousands of hours of vacation, we were short staffed, even the auditor thought it was outrageous how much vacation and holidays that were built up. We were illegally spending surcharge funding for salaries, and we had to correct it.”

Robinson said that if one of the dispatchers had quit, “We would have had to pay them almost a year’s salary before they could leave.”

Robinson said those expenses are nearly caught up.

The two previous entities, before the merger, had an approximate $600,000 budget, and Robinson said that bringing the 911 staff up to comparable wages of nearby 911 centers was approved last year. He stated that the Mahaska County dispatchers were making approximately $5 an hour less than neighboring communities, and the EMA commission adjusted the salaries of 911 dispatchers.

“Yes, I agree it has gone up, but I’m hoping that we’re at a place now where it won’t go up much anymore, other than the cost of living,’ said Robinson.

“We didn’t know what we were getting into when we took it,” added Robinson. “Because none of that information was shared with us.”

Previous 911 Boards, prior to the merger, typically met twice a year to approve a budget and provided little other guidance to the previous 911 Director. That lack of oversight was also a driving factor in the merger of the two boards.

“Not even the 911 Board people who were on it knew that they had thousands of hours of vacation they were sitting on,” explained Robinson.

Hite once again asked Groenendyk what the board of supervisors would like to see happen.

Groenendyk said that 911 should be a per-capita, “just like it had been the previous, since 1993.

“All the 911 service is is the ability to call 911,” said Groenendyk. “That’s all 911 is really is what the 34A does.”

“It doesn’t matter what property you have,” said Groenendyk. “So the rural people are going to pay 60 plus percent of the new infrastructure for our county. If you want to look at who uses it, it goes back to the calls. I think percentages, it’s mostly going to be used in Oskaloosa, but you still need coverage in the rural area.”

“911 calls. Most of them reside in Oskaloosa,” said Groenendyk. “60 percent of them do.”

Hite said that the vote to combine the two boards and have EMA handle the 911 call center included the change in how the system was funded.

“I can’t find anything. I’ve asked our county attorney. I’ve asked Mr. Robinson. I’ve looked in the city council’s minutes that are online. I find no reference to anybody saying we’re going to put this all on the county levy,” said Groenendyk. “None.”

Groenendyk continued to make the argument with the rest of the EMA board that funding needed to take place on a per-capita, and not the emergency management levy.

Groenendyk said that nobody was informed that the funding for 911 was going to come from the EMA levy.

“I didn’t think it was going to be the county, it was going to be this commission,” said Walling.

“My recollection is that the board of supervisors gave EMA, allowed EMA, to go through a county-wide levy. That was it,” said Van Weelden. “Now I think that document Mark has from back there still should be in effect. We still should be, that’s the way it still should be funded. The way it was when it was taken over by, made into one.”

“I voted against the merger,” explained Van Weelden. “Because of where we’re at today. I could see something things coming that I didn’t like, I didn’t think it was the thing to do.”

“But we never said, OK Jamey, you can put that all on the county levy. I don’t ever recall that happening,” added Van Weelden. “I know we gave permission because there was some funding things, and we did allow emergency management to go on the levy.”

Hite once again asked Groenendyk “What’s the end game. If you guys direct Sue don’t levy for that. Let’s say she does what you say, what are we going to do about 911 in Mahaska County?”

“You know, I don’t think this is about the supervisors because we’ve already funded it. I think the question goes back to what we’re going to do about equalizing the service of 911,” said Groenendyk.

Van Renterghem once again asked Groenendyk what he would like the communities to do now to budget for 911 that are already maxed out in their budgets.

“They were paying for it before, Russ,” said Van Weelden.

Groenendyk said he believes that funding needs to go back to the way it was prior to the merger of 911/EMA.

Chief Bokinsky said that Marion County 911 is based upon property valuation, “and actually, it’s interesting if you go to 34A, right in the definitions for 911 service plan, I just find it interesting that it defines what a 911 service area is. It’s an area that can’t be any less than a county. It has to be at least the size of a county, and later on as part of your service plan, it says in here what’s to be included in your service plan is the total property valuation in the 911 service area. It’s almost as if by code, the implication is this is the way to be done, It seems to be legislative intent. That’s just the way I read it.”

“I’m going to disagree because if we go back to 1993, it’s in the supervisor’s section of 911 directives,” said Groenendyk, who referenced following what the “forefathers” put in place with the 1993 911 agreement.

“If we always do what we’ve always done, we always get what we always got,” said Toubekis.

“Probably insanity,” chuckled Groenendyk.

“That’s right,’ said Toubekis. “I want an attorney to be in here. I’m not an attorney. I got a supervisor and an attorney battling back and forth. I’m not an attorney.”

“I want the county attorney to be sitting here as well,” said Toubekis. “Because he represents you. That attorney is going to represent us. The county attorney is going to represent you. I want those two attorneys to advise us what the best way to go forward is.”

“I think the county attorney represents the 911 board,” said Groenendyk.

“Then let’s have him here,” said Toubekis. “I’m not an attorney.”

“But the question of it is, is, we had an attorney here, that says yeah, it’s ok,” said Groenendyk.

“He resigned, it’s old hat, let’s move forward,” said Toubekis.

“Is that attorney going to represent all our interests as one,” asked Groenendyk, saying there are different interests.

“The attorney that this board hires should represent this board,” said Toubekis. “Correct?”

“That’s what I’m saying, without having a conflict of interest…” said Groenendyk

Toubekis once again asking, “Correct?”

“I’m not sure you can legally,” added Groenendyk.

“So do we not get an attorney?” questioned Toubekis.

“I have my own attorney I’m going to rely on,” said Groenendyk. “Not this EMA attorney.”

“You’re going to rely on the county attorney,” asked Toubekis.

“Yes,” said Groenendyk.

“So the county attorney needs to come to the next meeting,” said Toubekis. “To represent the board of supervisors. That’s only fair.”

“So you’ve got a different attorney? A different attorney from me is what I’m hearing?” questioned Groenendyk.

Toubekis once again reiterated that he isn’t an attorney, and is only looking out for the best interest of the people of University Park. The people of University Park want me to sit around this board so that I can make the best decision for the city and go back and brief them and tell them what this board has come up with. And right now, I can’t tell them anything because I have no idea what you’re trying to accomplish, what you’re trying to accomplish, what you’re trying to accomplish.(pointing around the room) We need an attorney to be sitting here. We’re wasting our time.”

Groenendyk said that he’s trying to inform people about how much it costs to run the 911 center in Mahaska County.

“Well of course, why wouldn’t we,” replied Toubekis.

“We don’t have that number though,” said Groenendyk.

“Will you get us the best number you can,” Toubekis asked of Robinson on getting the cost of just 911 operations.

“Best number I can” replied Robinson.

Van Renterghem said he doesn’t want to see a room full of attorneys.

“It’s going to come to that if this doesn’t stop,” said Toubekis.