Letter to the editor

Attorney: 'No incompatibility of office' for school board and county supervisor

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Editor:

Many Americans are properly concerned about integrity in the political process and the importance of accepting election results. Right now, a drama is playing out in Scott County that puts these issues front and center.

John Maxwell is a Scott County Supervisor. He also serves on the North Scott Board. The law is clear that a person can serve in more than one local office as long as the offices are in different bodies. You can’t be, for example, a county sheriff and supervisor at the same time. But holding county office and school district office simultaneously is perfectly fine.

Unless you live in Scott County. Maxwell was elected to be a supervisor in 2018 while serving on the North Scott School Board. He was reelected to the school board in 2019. No one has raised a peep about this until a few weeks ago, when the county attorney issued a one-paragraph memo stating that the offices are incompatible, and that the supervisor position was potentially vacant.

“Incompatibility of office” is not a phrase most people use. Remember the example of a person being a supervisor and sheriff at the same time? Those are incompatible offices. The county supervisor has to vote on the sheriff’s budget and authorized staffing. Because a person can’t supervise himself, the law doesn’t allow that kind of dual officeholding.

But there is no such relationship between a county supervisor and a school board member. The county attorney cites the fact that the county and school board are both represented on the conference board, the body that supervises the local tax assessor, as the reason the offices are incompatible. This is simply wrong: the county and school board don’t have power over each other on the conference board. They are equals on the conference board, and equality doesn’t create incompatibility.

And you don’t have to take my word for it. In 1992 the Iowa Attorney General issued a formal legal opinion stating that the offices of county supervisor and school board member are not incompatible. This legal opinion specifically says that the involvement of the county and the school board in administering property tax does not create incompatibility of office. For some reason the county attorney does not discuss, or even cite, this Attorney General opinion in his one paragraph of legal analysis.

No problem, you might think. Even if the county attorney is wrong, surely the judge will get it right. Unfortunately, Iowa law gives it not to a judge but to the county auditor, treasurer, and recorder to decide. And this is where partisanship gets involved. Maxwell is a Republican on a board of supervisors that his party controls 3-2. The county attorney is a Democrat. So, too, are the auditor and recorder.

So, this means Democrats control the panel 2-1 that decides if there is a vacancy. And if they decide there is a vacancy, they appoint the replacement to the board. Even worse, nothing in Iowa law requires them to appoint someone of the same political party as the person they removed.

A neat trick, right? Turn Maxwell’s community service against him, ignore the legal opinion of the Iowa Attorney General, and you can flip the partisan control of the board of supervisors. The 30,785 people who voted for Maxwell in the 2018 election could get their votes wiped out by the county auditor and recorder. Talk about voter suppression.

It’s no wonder the Iowa Legislature got involved. State Sen. Roby Smith, a Davenport Republican, included a provision in a recent bill that made it even more clear than it was before that Maxwell’s situation does not create an incompatibility of office. If the Attorney General’s opinion isn’t getting through, maybe this language will.

Predictably, Sen. Smith is being attacked for getting this language in the bill. But legislators regularly respond to local problems by making the law clearer. Certainly, this is the kind of situation that invites a response. It would be irresponsible for the legislature to stand by and watch local officials ignore the law.

Maxwell faces a hearing before the auditor, recorder, and treasurer on March 15. (Full disclosure: I will represent him at this hearing.) Hopefully, they will carefully consider the Attorney General’s opinion along with the new legislation and vote that there is no vacancy. The people of Scott County deserve no less.

Alan Ostergren

500 Locust St., Suite 199

Des Moines, IA 50309

Alan Ostergren is an elections attorney based in Des Moines.

letter to the editor, John Maxwell, Scott County Board of Supervisors, North Scott School Board, Roby Smith, Alan Ostergren

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