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Updated: Lawyer for Scott County supervisor files an appeal to vacancy ruling

Updated: Lawyer for Scott County supervisor files an appeal to vacancy ruling

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Despite opinions from the Scott County Attorney's and Iowa Secretary of State's offices to the contrary, a panel of Scott County officials on Wednesday declared a vacancy in office of county supervisor held by Republican John Maxwell.

The vote was 2-1.

Scott County Auditor Roxanna Moritz, County Recorder Rita Vargas, both Democrats, and County Treasurer Mike Fennelly, a Republican, voted on party lines to decide Maxwell, a Republican, vacated his seat with his re-election to the North Scott school board in 2019.

Maxwell's attorney Alan Ostergren following the vote walked over to the Scott County Courthouse to immediately file an appeal in district court.

Maxwell said he will post a bond and continue to serve on the Scott County Board of Supervisors until a court decision is reached. When that might be was not immediately clear Wednesday.

"Obviously, I'm extremely disappointed with the decision," Maxwell told the Quad-City Times and Moline Dispatch-Argus. "I think that it was clear that I should remain on and that there was no vacancy. ... I'm still wanting to serve Scott County and the North Scott school board the best that I can and do the best things I possibly can for everybody."

The Scott County officials voted after a brief recess to review an email from Molly Widen, legal counsel for Iowa Secretary of State Paul Pate, and after hearing from Assistant Scott County Attorney Robert Cusack.

Widen, in her email, wrote the Iowa Secretary of State's office routinely receives questions regarding holding multiple offices, "and I have always advised that it is permitted under Iowa law to serve on both the County Board of Supervisors and School Board."

"This is the long-standing interpretation of the Iowa Secretary of State’s Office, as evidenced by its inclusion in our School Election Candidates’ Guide," Widen wrote. "In summary, if Mr. Maxwell called our office and asked, 'Can I be a member of my county’s Board of Supervisors and a member of my School Board?,' he would have been told that he could hold both positions simultaneously."

Additionally, Cusack argued any potential conflict Maxwell might have serving as both a county supervisor and North Scott school board member on the Davenport City Conference Board, which oversees the city assessor's office, was resolved when Iowa Gov. Kim Reynolds signed into law a sweeping and controversial elections law bill earlier this month.

Tucked into the bill sponsored by Davenport Republican state Sen. Roby Smith is a provision tailored to allow Maxwell to continue to serve on both boards.

The law allows for waiver of one of the positions on the conference board, thereby resolving the potential conflict.

Specifically, the proposed statute provides that "(a) waiver pursuant to this section does not cause the person to vacate any elective office."

Maxwell has sent a letter to the Davenport city assessor waiving his position on the conference board for purposes of service with the North Scott school board, making the issue moot, Cusack said.

"There is no vacancy in the board of supervisors," Cusack told the panel Wednesday.

Fennelly, who thrice unsuccessfully offered a motion to declare no vacancy, said: "The law right now to me reads that there's no vacancy (that) exists right now."

Moritz, however, argued the newly enacted state law is not retroactive, that Maxwell vacated his office when he assumed his newly elected position to the North Scott school board, and that differing Iowa Attorney General opinions do not sufficiently and specifically address the issue.

Cusack and Ostergren disputed Moritz' argument.

Ostergren also pointed to a 2017 change to Iowa law that allows other members of city conference boards to simultaneously hold office. The change combined city and school elections into a single general election in odd-numbered years, and allowed a candidate to run for both city office and school board on the same ballot.

"No one has said, 'Here is an example of a case where the duties are in conflict,'" Ostergren. "You can't just assume that they're incompatible. You have to find something that puts the offices at loggerheads."

The duties of the conference board, which establishes and adopts an annual budget for the city assessor's office, are largely "mundane" and "ministerial," Ostergren previously argued.

Moritz, however, cited a 1965 Iowa Supreme Court ruling referenced by Scott County Attorney Michael Walton in a memo to county officials last month.

In the memo, Walton stated that Maxwell serving dual roles on a Davenport board — as both an elected county official and school board member — conflicted with Iowa administrative code. And, according to the Supreme Court ruling, "if a person, while occupying one office, accepts another incompatible with the first, he ipso facto vacates the first office," Walton wrote.

"The conflict arises because both positions require membership on the Davenport City Conference Board," Walton wrote. "Due to both positions requiring membership on the city conference board, the offices of county supervisor and school board member in this situation are incompatible."

Walton, however, has subsequently said the recent change to state law resolves the issue.

Moritz, though, reiterated that Iowa law states that legislation is to be viewed in a "prospective" and not a "retroactive" manner. She also cited an opinion by an attorney from the Iowa Department of Revenue from early 2019 that determined the dual roles on the Davenport conference board were incompatible and that Maxwell vacated his position on the school board with his election to the Scott County Board of Supervisors in the fall of 2018. However, Maxwell never received the opinion and the North Scott school board never acted on the vacancy issues, for reasons Moritz said were not known.

The recent issue arose in February during a meeting of the conference board, when Maxwell switched from his role as supervisor to school board member in order to establish a needed quorum of the conference board.

"It would be very easy just to say, 'John Maxwell stay' and in six weeks I retire and I'm out of here," Moritz said. "It's hard to say to someone to vacate the position. The facts, to me, are not disputable. ... I think that the position was vacated when he took the second position (with re-election to the North Scott school board)."

Moritz added "as a Commissioner of Elections, I am especially loathe to declare a vacancy in elected office," but "cannot pick and choose which laws to follow and which to ignore."

"I am not perfect, and I have made mistakes while in office," she said. "But, I have always sought to fully uphold the law."

Ostergren argued any vote to declare a vacancy in light of opinions from the Scott County Attorney's, Iowa Attorney General's and Iowa Secretary of State's offices would be viewed as a partisan power grab, which Mortiz disputed.

"This was not a partisan issue we were looking for. It was dropped on our laps," Moritz said after receiving petitions from nearly 100 Scott County voters to hold a public hearing to determine whether Maxwell vacated his seat with his reelection to the North Scott school board in 2019.

"I really believe that we are here just to try to do the right thing," she said.

Thirty-some county residents spoke during a Monday public hearing, a vast majority of whom spoke in favor of Maxwell retaining his seat on the county board of supervisors. The residents argued Maxwell has done an admirable job representing the interests of Scott County voters on both boards, and do not believe the two conflict.

"A lot of people were asking us to make an arbitrary decision based on the fact that John Maxwell is a good person," Moritz said. "I agree. You're a great individual, that you love to serve. That's not in question," but rather "can you serve two masters at the same time in the scenario we are talking about?"

Ostergren, though, warned the panel it was "highly likely" an Iowa judge would rule the panel "flat wrong" in light of legal opinions from county and state attorneys, and claimed Maxwell was denied a fair hearing.

"If you believe that you know more about Iowa law ... If that's the case, that does not speak well for the decision making, frankly," Ostergren told the panel. "This doesn't have to be this hard."


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