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City Attorney Recommends Keokuk Not Sign Dispatch Agreement

Mar 29, 2016

The Keokuk City Council will hold a special meeting Tuesday afternoon (March 29) to discuss whether the city should remain a member of LeeComm, the county's centralized emergency dispatch center. City Attorney Douglas Dorando believes the city should not do so unless changes are made to the organization's bylaws and powers.

“It would be ill-advised for [Keokuk] to enter into an agreement which includes no viable method to terminate our membership, nor any procedure for how that could or would occur in the event any party backs out. In this document’s current form, the City of Keokuk should refuse to participate, at least until these legal concerns are addressed.”

Dorando expressed his concerns about the proposed LeeComm agreement in a memo dated March 29, 2016 that was sent to the Keokuk City Council, Mayor Tom Marion, City Adminsitrator Aaron Burnett, Police Chief Dave Hinton and Fire Chief Gabe Rose.

Tri States Public Radio was provided a copy of the memo as well.

In it, Dorando questions the legality of the new 28E agreement, the accuracy of the language used within it, and whether the document would hold up in a court of law.

BACKGROUND

Keokuk, Lee County, Fort Madison and several other local governments entered into a 28E agreement seven years ago to form LeeComm. The agreement laid out how the service would be funded and who was in charge of oversight and employee supervision.

The 28E agreement expires June 30, 2016, prompting the drafting of a new 28E agreement to keep the service operational. Nine of the ten members of LeeComm have approved the new agreement, or are scheduled to do so in the next two weeks.

Dorando wrote that Keokuk has not been willing to sign on over concerns about the language in the new agreement, in particular:

  • The duration of the agreement
  • The number of votes required for passage
  • The function of the user oversight committee
  • The distribution of property

Dorando wrote that none of Keokuk’s concerns were addressed in the proposed extension of the 28E.

“This would not be concerning in and of itself, except there appear to be communication failures and negotiations failures between the entities, causing the need for this legal review of the proposed 28E agreement.”

LEGAL CONCERNS

Dorando wrote in the memo that it appears the LeeComm board violated Iowa’s Open Meetings Act during the creation of the new 28E agreement.

The LeeComm Board voted in favor of the new 28E agreement on Jan. 14, 2016, which meant it could go to the membership ie the local city councils and the county board of supervisors for approval. Keokuk Police Chief Dave Hinton cast the lone no vote.

Dorando claims that Hinton did not learn of the meeting until the morning of Jan. 14, 2016, despite the bylaws requiring advance notice. Dorando also wrote that Alderman Mike O’Connor, the city’s other representative on the LeeComm board, also did not learn of the meeting until that morning and could not rearrange his schedule to attend.

“This failure to provide proper, adequate and legal notice of the meeting and the agenda gives any number of parties the ability to sue the 28E body and a court shall void all actions taken at that meeting.”

Dorando wrote another possible open meetings violation occurred when the Lee County Board of Supervisors approved the proposed 28E agreement… two days before the LeeComm board did.

“You will note that this meeting and vote occurred two days prior to the meeting of the control board, which at best is highly suspicious timing. At that time, and as far as the City of Keokuk was aware, the proposed 28E agreement was just a proposal, not necessarily the final form of the document to be entered into. It is also disconcerting that the Board of Supervisors already had the document and felt comfortable voting on it while the city of Keokuk and other members were still at the bargaining table.”

Dorando wrote that state law also requires any 28E agreement signed within Iowa must include five specific points. He said the proposed 28E agreement does not address two of them.

Duration

The proposed 28 agreement states it will run for “an indeterminate period.”

Dorando wrote state code requires a specific duration.

“Indeterminate is not a duration – it is an undecided length or a length that is not being specified. That is, by definition, not specific, or worse, not decided. Ergo, I would contend that this document fails on its face at this point to meet the standards set by [Iowa Code] 28E.5.”

Dorando wrote that if the term was changed to “perpetual” with mandatory reviews every two years, the duration would not be an issue

Termination

According to Dorando, “This paragraph tells us nothing about how the agreement terminates. It just assumes the agreement terminates.” He further wrote, "It’s unclear whether one party leaving is enough to terminate the agreement or if more partners are required.”

ENFORCEMENT ISSUES

Dorando spent the final ten pages of his memo addressing the actual language of the agreement.

“There exist a number of issues of construction of the ‘Proposed 28E Agreement’ which leaves it difficult, if not impossible, to enforce. These should be enough to drive the parties back to the table to correct it.

“In addition to those I will consider directly, the document overall could use a good proof-reading as there are an exorbitant number of typographical errors which should be addressed.”

He described the “most egregious oversight” as the actual purpose of the agreement.

“While it purports to be the establishment and operation of a joint emergency response communication service, at no point does the document disclose what services will be provided. For a founding document such as this, not spelling out what we are even talking about is an unforgivable error and should be fatal to this draft of the proposed 28E agreement…. Keokuk can only be protected if we have an airtight agreement, know what it is that we are signing and know that the services which are being provided right now by the Lee County PSAP will continue unaltered.”

Dorando also cites

  • Vagueness in defining the duties of the control board, a finance board and a newly formed user board
  • The use of terms that should not be interchangeable
  • Sections conflicting with each other
  • No guidance for tie votes on the user oversight board
  • The use of terms like “things”

DORANDO'S CONCLUSION

“Signing this document can only lend credibility to an agreement that could be voided at any time by any number of parties and gives us no clear direction on many points that this memo has raised, including those issues that are so important, the State Legislature has required them to be addressed in this agreement. Similarly, the consequences of rejecting this agreement are entirely unclear at this point. Signatory members of the proposed 28E have suggested that amendments are possible to punish a non-signer and it is at best uncertain if this would have any effect on dispatch services to Keokuk.”