Government : Board of Supervisor Minutes 9/21/21

September 21, 2021

The Benton County Board of Supervisors met in regular session with Supervisors Seeman, Bierschenk, and Primmer present. The meeting was called to order at 9:00 a.m. at the conference room at the Benton County Service Center. Members of the public were provided the zoom access capability to join in during open session and livestream at https://www.youtube.com/bentoncountyiowa. Unless otherwise noted, all actions were approved unanimously. Summarized Resolutions will be available in the Auditor's office and at: www.bentoncountyia.gov ( https://www.youtube.com/bentoncountyiowa)

Primmer moved/Bierschenk seconded: To approve Class C Native Wine Permit for 42 North Winery LLC effective September 24 through 28, 2021. Motion carried.

Primmer moved/Bierschenk seconded: To acknowledge resignation of Darien Smothers, from full-time correctional officer in the Sheriff's office effective September 28,2021. Motion carried.

Primmer moved/Bierschenk seconded: To approve the hiring bonuses proposal for the Sheriff's office, with a possible memorandum of understanding with the Union for this action. Motion carried.

The sheriff presented a resolution to discuss regarding if Benton County would want to be a Second Amendment Sanctuary County. There have been other counties already passing similar resolutions so this is an example from Hardin County. A motion was made by Bierschenk for approval, but was interrupted by the county attorney. Tippet stated this was brought to the board to look over, not as an action item, that it would need homework on it. Supervisor Primmer recommended waiting to allow time for the county attorney to look over and Heartland Insurance. No action was taken.

Primmer moved/Bierschenk seconded: To approve payroll checks numbered 141980 through 141993, ACH deposits numbered 46692 through 46838, vendor checks 240087 through 240094, and claims numbered 240095 through 240230. Motion carried.

Stuart Towe, Florence Township and Jim Hemesath came to discuss helping on the funding for a new $400,000 pumper truck for the Fire Department. They are asking for the 10% gift through Local Option Sales Service Tax and then a possible Emergency Services Revolving Loan. They have over $53,000 in raised donated money to help offset the costs as well.

Primmer moved/Bierschenk seconded: To approve the fire department moving forward with them ordering a new pumper truck and the County will help them with funding the project.

Primmer moved/Bierschenk seconded: To approve Resolution #21-79, Modifying exclusionary coverages of Heartland Insurance Risk Pool Policies. Motion carried.

RESOLUTION #21-79

RESOLUTION APPROVING TO MODIFY EXCLUSIONARY COVERAGES OF HEARTLAND INSURANCE RISK POOL POLICIES TO PROVICE THE FOLLOWING: Coverages for civil technical infractions under Iowa Code Section 39A.6:

WHEREAS, the Iowa Legislature has passed and Governor Kim Reynolds has signed, on March 8, 2021, an Act entitled the "Election Misconduct and Penalties Act", which is now found in Iowa Code Chapter 39A, Sections 39A.1 through 39A.7, addressed to "election officials", in Section 39A.1, which include the "county commissioner" of elections and those in the county auditor's office, under Iowa Code Section 331.505, "who are responsible for carrying out functions or duties under chapters 39 through 53" relating to elections; and

WHEREAS, Iowa Code Section 39A.2 through 39A.5, define Election Misconduct in four degrees of criminal offense for acts and omissions of county auditors and the designated deputies and employees acting in the scope of their official duties for claimed election related misconduct; and

WHEREAS, Iowa Code Section 39A.1(2) declares that "(t)he general assembly also recognizes that instances may arise in which technical infractions of chapters 39 through 53 may occur which do not merit any level of criminal sanction" but Iowa Code Section 39A.6(3)(a) empowers the Iowa Secretary of State to issue a "technical infraction" notice to the county auditor, (which the Legislature has not defined and about which the Secretary of State has not promulgated implementing rules), for which "the state commissioner shall also impose a fine not to exceed ten thousand dollars to be deposited in the general fund" with a removal from office if such amount is not challenged or paid after unsuccessful challenge; and

WHEREAS, the County Home Rule power is vested in the County Board of Supervisors, Iowa Code Section 331.301(2), under which the Board may "exercise any power and perform any function it deems appropriate to protect and preserve the rights, privileges, and property of the county and its residents", "except as expressly limited by the Constitution of the State of Iowa, and if

not inconsistent with the laws of the general assembly", Section 331.301(1), "subject only to limitations expressly imposed by a state law", Section 331.301(3)."; and

WHEREAS, Iowa Code Section 670.8(1) requires that the Board of Supervisors "shall defend its officers and employees, whether elected or appointed and shall save harmless and indemnify the officers and employees against any tort claim or demand whether groundless or otherwise, arising out of an alleged act or omission occurring within the scope of their employment or duties" for "any breach of duty, whether statutory or other duty" under Section 670.1(4); and

WHEREAS, Iowa Code Section 331.324(4) requires that "the board [of supervisors] shall pay a loss for which the officer or employee is found liable beyond the amount of insurance . . . (i)f the liability of a county officer or employee in the performance of official duties is not fully indemnified by insurance" and empowers the Board "to compromise and settle any such claim"; and

WHEREAS, the county auditors and their deputies serving within the scope of their employment and duties in connection with the responsibilities they are assigned under the election laws of Iowa are threatened by the increasing animosity, partisanship, and vehemence and vitriol of persons involved in political party politics who can easily make or cause to be made criminal complaint under Sections 39A.2 through 39A.5, or cause action to be brought under Section 39A.6, whether criminal or civil, thus exposing such elected officers and their appointed deputies and employees to criminal proceedings, criminal penalties, attorneys expenses and costs, criminal or civil fines for administrative proceedings, attorneys fees and costs, and removal from office of the Auditor resulting in loss of income for two years all for undefined "technical infractions",

NOW, THEREFORE, BE IT HEREBY RESOLVED:

1. That the Benton county auditor and any deputy auditor or employee who performs election related responsibilities within the scope of criminal offenses and civil infractions, defined by the Election Misconduct and Penalties Act, Iowa Code Sections 39A.1 through 39A.7, shall be provided at county expense,

(a) In the cases of criminal charges made under Iowa Code Sections 39A.2 through 39A.4, and any charges brought under Iowa Code Chapter 721, as referred to in Section 39A.7, a defense, meaning a lawyer to represent the auditor, deputy auditor, and any employees of the auditor's office so charged criminally, including any appeals to the Iowa Supreme Court.

(b) If a conviction results under any of the charges referred to in subparagraph (a), above, the person convicted shall not be indemnified for any fine so levied in the criminal judgment.

(c) Any person so charged as defined in subparagraph (a) shall immediately notify the Board of Supervisors of the pendency of such charges to invoke this Section.

2. That the Benton county auditor and any deputy auditor or employee who performs election related responsibilities within the scope of criminal offenses and civil infractions defined by the Election Misconduct and Penalties Act, Iowa Code Sections 39A.1 through 39A.7, shall be provided, at county expense,

(a) in the case of technical violations and infractions under Section 39A.6, defined as civil violations under Section 39A.1, an attorney to represent the auditor, deputy auditor and any employees of the auditor's office cited for any such technical violation or infraction to file an appeal of such allegations or findings pursuant to Chapter 17A as specified by Section 39A.6(3)(b), in lieu of paying the civil fine of not to exceed ten thousand dollars specified by Section 39A.6(3)(a). Such representation shall continue for any of the successive appeals thereafter provided from the findings and conclusions of the Administrative Law Judge with appeals therefrom to the Secretary of State, the Iowa District Court and the Iowa Supreme Court.

(b) On July 8, 2021, the Heartland Risk Pool Board voted unanimously to modify exclusionary coverages of Heartland policies by providing the following coverages for only civil technical infractions under Iowa Code Section 39A.6:

"However, we will pay reasonable expenses incurred by the Insured including but not limited to attorney's fees, investigator fees, expert fees, penalties and fines related to civil technical infractions under Iowa Code Section 39A.6 but not for the criminal fines imposed upon conviction under Iowa Code Sections 39A.2 through 29A.5 otherwise excluded under this section, up to a limit of $400,000 per claim."

Signed this 21st day of September, 2021.

_____________________________________

Tracy Seeman, Chairman

_____________________________________

Gary Bierschenk

______________________________________

Rick Primmer

ATTEST:

_____________________________________

Hayley Rippel, Benton County Auditor

Primmer moved/Bierschenk seconded: To approve Resolution #21-80, Appointing Megan Hall as Assistant County Attorney effective September 9, 2021. Motion carried.

RESOLUTION # 21-80

WHEREAS, the Benton County Attorney has a need for full-time assistant; and

WHEREAS, Megan Hall has been employed by Benton County as full-time paralegal since August 16, 2021 ;

WHEREAS, Hall has been currently performing the duties of the above mentioned position and showed her certificate of passing the bar exam; and

WHEREAS, the Attorney recommended that Hall have her employment status and wage changed,

NOW THEREFORE BE IT RESOLVED by the Benton County Board of Supervisors that Megan Hall be changed to an assistant attorney in the Attorney's office, effective September 9, 2021 her salary be $75,000 a year.

_____________________________________

Tracy Seeman, Chairman

_____________________________________

Gary Bierschenk

______________________________________

Rick Primmer

ATTEST:

_____________________________________

Hayley Rippel, Benton County Auditor

County Attorney David Thompson discussed the courthouse clock and the need for an assessment for some repairs. Not sure what is wrong and why it is running so slow. The last repair was done about 6 years ago. The clock committee and historical preservation commission has met and are asking the board grant approval to hire an expert to come look and provide an estimate. Thompson stated he would come back in the future with the estimate before any work is done.

Primmer moved/Bierschenk seconded: To approve the hiring of the expert to come take a look at the clock and provide an estimate. Motion carried.