EEBEWE AY 0 2 2017 BEFORE THE MUSCATINE, IOWA CITY COUNCIL IN THE MATTER OF: FINDINGS OF FACT AND ORDER ON THE CITY OF Diana L. Broderson, Respondent. WRITTEN CHARGES OF REMOVAL On March 23rd and April 1St of 2017, the above-captioned cause came for hearing before the undersigned. The Written Charges of Removal were presented by Special Counsel John A. Nahra. The Respondent, Mayor Diana L. Broderson, was present and represented by Counsel William Sueppel and Catherine S. Gerlach. The undersigned after having heard the evidence, reviewed the exhibits, heard arguments of counsel and otherwise being fully advised in the premises ?nds as follows. The Written Charges of Removal were ?led on February 17, 2017 with the Muscatine City Clerk, and were authorized by the City Council pursuant to Iowa Code Chapter 66 and City Code Section 1-7-6. Subsequently, the City Council scheduled the matter for hearing on March 23, 2017. Respondent, Mayor Diana Broderson, was personally served with an original notice and the Written Charges of Removal on March 9, 2017, as required by City Code. Thereafter, on March 14, 2017, Mayor Broderson was served with notice of the hearing date, with written transcripts containing all available sworn testimony of the City?s witnesses, and with detailed ?Minutes of Evidence? which included statements concerning the anticipated testimony of every witness that the city intended to call before the undersigned. The hearing before the undersigned was conducted in the city council chamber before a certi?ed court reporter. Before testifying each witness was placed under oath to tell the truth. The removal hearing began on March 23, 2017 and resumed and concluded on April 1, 2017. The Respondent was present for the entirety of this hearing with her counsel. The Mayor Page 1 of12 had the opportunity to cross-examine all of the witnesses presented against her, the opportunity to present her own witnesses and exhibits, as well as to examine all of the exhibits entered in the record. These procedures satis?ed the due process requirements that the Mayor receive notice of the charges against her and that she be allowed a reasonable opportunity to defend as provided by State and City Code. During the hearing the Mayor had the opportunity to present evidence and witnesses on her behalf. At the outset it is necessary to address the credibility of Mayor Diana L. Broderson. In asseSsing the credibility of Mayor Broderson we must also look to the testimony of the other persons called to testify during this hearing. We have considered the reasonableness and probability of the statements made by witnesses other than Mayor Broderson and determined whether their testimony is corroborated or contradicted by other witnesses or facts proven, and from all of these and all other facts and circumstances proven upon the hearing to determine where to give credit and where to withhold the same. Upon review of all of the evidence we ?nd the credibility of Mayor Broderson to be incredible as compared to credible. Simply put, at times her testimony was not only inconsistent with statements she had previously made and inconsistent with press releases she had authorized but also contrary and inconsistent with the testimony of others and evidence we believe. The undersigned acting as judges of the weight of the evidence and credibility of the witnesses find Mayor Broderson not credible. I. The Mayor Violated City Code. We ?nd there is suf?cient evidence to support a ?nding that Mayor Broderson formed two ad hoc committees/task forces without City Council approval. The evidence is overwhelming that the Mayor declared at a City Council meeting on April 14, 2016, that she was going to create a task force to look into the form of local government and on April 18, 2016, she Page 2 of 12 issued a press release indicating she had created a group she referred to as ?Millennial Muscatine? and the Mayor?s special task force which would look into the varying forms of local government. Despite the Mayor?s denial of the formation of these two (2) committees during the hearing the record before us clearly indicates the Mayor formed these two (2) committees or task forces when she knew the sole authority for creation of such entities was solely with the City Council. Additionally, the evidence and testimony presented supports our ?nding that on at least three (3) occasions, the Mayor directly contacted city staff without the approval of the City Administrator. The city code clearly provides that any such contact shall be ?solely? through the City Administrator. As set forth during the hearing and in the post-hearing brief submitted by the city, the facts demonstrate that the Mayor has repeatedly violated the city code and acted beyond the scope of her authority. 11. The Mayor Violated the City Code of Ethics. We also ?nd the evidence and testimony presented supports that the Mayor made personal attacks upon the character or motives of elected of?cials and City staff, which is in direct violation of the City Code of Ethics, on at least ?ve (5) occasions. 1. On February 29, 2016, the Mayor alleged the City Council refused to vote on all of her appointments because she was being discriminated against and attacked by the City Council and the City Administrator, and the Mayor made these allegations public by sending her email correspondence to the Muscatine Journal. There was no basis found to support her accusations. 2. On May 21, 2016, the Mayor held a public ?Coffee with the Mayor? wherein she made a number of allegations deprecating upon the character and motives against the City Page 3 of 12 Council, City Administrator, and City Attorney. There was no basis found to support her accusations. 3. On June, 20, 2016, the Mayor sent correspondence to members of the public in which she alleged numerous statements deprecating upon the character and motives of the City Council and City Administrator, including, but not limited to, they are attempting to destroy the Of?ce of the Mayor of Muscatine; they are offended by diversity and open government; and they lack respect and professionalism. There was no basis found to support her accusations. 4. On August 1, 2016, the Mayor sent a second correspondence to members of the public making allegations against the character and motives by stating the City Council was blocking her appointments due to partisanship or failed to consider her recommendations. There was no basis found to support her claims. 5. On October 13, 2016, the Mayor was interviewed by Mary Mason of the Voice of Muscatine, wherein she made personal charges on the character and motives of the Council and City staff, which include, but are not limited to, the City Administrator?s goal has been to remove her from of?ce since she got elected, the City Council was using closed sessions impennissibly, and the Council and Administrator are unwilling to accept her as mayor and accept the people?s vote. There was no evidence presented to support the Mayor?s accusations. The facts conclude that the Mayor repeatedly violated the City Code of Ethics. Page 4 of 12 The Mayor Asserted False and Baseless Allegations. We ?nd the evidence and testimony indicates the Mayor asserted false, baseless or unsubstantiated improprieties against City staff, City Council and various members of the public. The allegations and ?ndings are as follows: 1. The Mayor made a complaint to the Iowa Public Employees Retirement System alleging City staff violated the law by hiring a retired employee, Randy Hill, as a consultant. IPERS did not take action in the matter. 2. The Mayor alleged the City Administrator accepted a gi?, gratuity, or kickback in the form of airline tickets or a ride on a private plane from a contractor in exchange for the contractor being awarded a Muscatine construction project. No basis was found to support this allegation. 3. The Mayor alleged the Muscatine Community Development Director, Dave Gobin, accepted a gift, gratuity or kickback in the form of airline tickets or a ride on a private plane from a contractor in exchange for the contractor being awarded a Muscatine construction project. No basis was found to support this allegation. 4. On February 19, 2016, the Mayor claimed she was the subject of gender bias or discrimination by the City Administrator. This claim was investigated by the City and a third-party, Homefront Security and was found to be unsubstantiated. 5. At the time of the investigation, the Mayor?s complaint of gender bias her accusations grew to include that she was the subject of a hostile work environment by the City Council and the City Administrator. This claim was investigated by the City and a third-party, Homefront Security and was found to be unsubstantiated. 6. On February 26, 2016, the Mayor accused two Muscatine employees of violating the social media policy and investigation was taken by the City. These employees were later identi?ed as Shelley Meyer and Michelle Metzger. The City did investigate the matter and no basis was found to support this allegation. 7. On February 29, 2016, the Mayor sent a list of appointments to the city council via email. When councilrnembers requested additional information about the nominees Mayor Broderson responded by alleging the city council?s re?rsal to vote on her appointments was evidence she was being discriminated against by the City Council. No basis was found to support this allegation. Page 5 of 12 February 29, 2016, the Mayor noti?ed the city attorney, that against the advice of the city attorney, she had met with the State Ombudsman and made a complaint alleging a violation of the law regarding the city?s health inspection program against City staff and the City Administrator. No basis was found to support this allegation. On March 1, 2016, during the investigation interview with Homefront Security, the Mayor falsely asserted the existence of a mental illness by a private citizen of Muscatine, Iowa. No basis was found to support this allegation. On April 22, 2016, the Mayor emailed the City Attorney alleging that the Mayor?s Community Improvement Action Team committee and the City?s China committee were not properly authorized by the Council under the City Code. No basis was found to support this allegation. On April 28, 2016, Mayor Broderson contacted the city attorney to discuss allegations of alleged criminal conduct by a city council member and upon receiving the opinion of the city attorney that the matter did not involve criminal conduct and she later raised the same allegation with the Muscatine County Attorney in the summer of 2016 against Councilmember Fitzgerald. No basis was found to support this allegation. On April 28, 2016, the city attorney was noti?ed by the Iowa Public Information Board that Mayor Broderson had ?led a complaint against the City Council, the City Administrator and the City Attorney. This complaint was dismissed as legally insuf?cient by the Iowa Public Information Board. On May 11, 2016, the City received notice that the Auditor of Iowa had received an anonymous complaint to perform a review of the City?s 2014/2015 audit. The City subsequently learned that the complaint had been ?led by the Mayor and involved the City?s Sister-City and economic development opportunities with China. The Mayor did not discuss this request or her underlying concerns with City staff or the Council prior to ?ling her complaint. The State Auditor has not concluded that the City made any errors in the audit. On May 21, 2016, Mayor Broderson held a ?Coffee with the Mayor? stating that the city employees were afraid for their jobs and speci?cally referred to Chief Talkington. This allegation proved to be false. On or about October 17, 2016, Mayor Broderson contacted the Muscatine County Attorney to discuss and request criminal charges against two journalists, namely Emily Wegner of the Muscatine Journal and Mary Mason of the Voice of Muscatine. No basis was found to support this allegation. On October 31, 2016, the Mayor ?led another complaint with the Iowa Public Information Board alleging she had been inappropriately excluded from a meeting by Page 6 of 12 the City Council, the City Administrator and the City Attorney. The complaint was dismissed as legally insuf?cient by the Iowa Public Information Board. 17. On or about December 13, 2016, the Mayor contacted the Muscatine County Attorney to discuss criminal charges be commenced against the City Council, the City Administrator and the City Attorney. No basis was found to support this allegation. 18. Shortly after December 13, 2016, the Mayor asserted that the Muscatine County Attorney had been ordered to ?le criminal charges by the Attorney General against the City Council, the City Administrator and the City Attorney. This allegation proved to be false. The evidence in this case demonstrate that the Mayor repeatedly made false and baseless allegations. IV. The Mayor Misused Her Power to Obtain Personal Benefits. We ?nd the evidence and testimony presented supports that the Mayor misused her position in an attempt to obtain personal bene?t not available to members of the general public in violation of Iowa Code Section 68B.2A. At the hearing, the evidence established that in the summer of 2016 the Mayor, introducing herself as Mayor of Muscatine Diana Broderson, contacted the Manager of the property locally known as the Tower Apartments, Ms. Deana Fleming, regarding various grievances. At the time of the call, the Mayor did not indicate that the call was personal in nature and, more importantly, did not indicate that her mother was a resident at this facility. In light of these facts, the Mayor attempted to utilize her position as Mayor to bene?t her mother, and these bene?ts were not available to other members of the public. The Mayor further misused and or abused her powers by suggesting to Ms. Fleming that the Towers should host a spaghetti supper for the police department presumably to receive better service from the police department. Additionally, through her status as Mayor, she repeatedly met/contacted the County Attorney to discuss criminal charges against reporters, elected of?cials Page 7 of 12 and City staff, which is not available to members of the public. The facts conclude the Mayor misused her power to obtain personal bene?ts. The City Council ?nds that the Mayor engaged in misconduct and maladministration of of?ce by repeatedly acting outside the scope of her powers and abusing or misusing the of?ce of Mayor to gain advantages or bene?t for her personal agenda which is not available to similarly situated members of the public. The City Council also ?nds that based on the frequent, repeated and knowing nature of the Mayor?s conduct, she engaged in such conduct willfully and with an evil or malicious motive. In addition to the speci?c ?ndings made above we ?nd the evidence establishes that Mayor Broderson has repeatedly exceeded the of her lawful authority by violating City Code provisions, by violating the City Code of Ethics, by asserting false and baseless allegations and by misusing or abusing her authority or of?ce for personal bene?t. The Mayor?s repeated violation of the Code of Ethics and repeated assertions of false and baseless allegations were made consciously, with full knowledge of the consequences that could attach to the city. Further her continued conduct of operating outside the scope of her authority, after being advised of the possible adverse consequences to the city, amounts to willful or habitual neglect and/or willful misconduct in of?ce. We further ?nd that her repeated conduct and frequency of misconduct is evidence that her conduct was made with an evil or malicious motive. We further ?nd the false, baseless and inappropriate actions of Mayor Broderson have cost the City of Muscatine in excess of $100,000. Page 8 of 12 V. The Actions of the Mayor Rise to the Level of Removal. Section 1-7-6 of the City Code states that the Mayor may be removed ?om of?ce by action of the City Council for, inter alia, willful or habitual neglect or refusal to perform the duties of his or her of?ce; for willful misconduct or maladministration in of?ce; or corruption. Removal from public of?ce is a signi?cant action as the object is to rid the community of an incapable or unworthy of?cial. See State v. Callaway, 268 841 (Iowa 1978) (citations omitted). Legal authorities provide that a neglect of duties occurs when there is a substantial failure to perform the of?cial duties of of?ce. See Luckritz v. City of Camanche, 2008 Iowa App. LEXIS 501, *13 (Ia. Ct. App. July 16, 2008) (removal for failure to show up for a trial); see also Shields v. State, 89 P.2D 756 (Okla. 1939) (neglect of duty when an of?ce acts or fails to act contractor to a known duty); 4 McQuillin, supra, ?12.325. The above authority suggests that the failure to perform can be either a signi?cant single action (such as the commission of a crime) or a number of repeated actions (repeatedly breaching a ?duciary duty?especially after being repeatedly warned not to take said actions). The Iowa Attorney General?s office has stated that misconduct and/or maladministration includes ?any unlawful behavior by a public of?cer in relation to the duties of his office, willful in character, and embraces acts which the of?ce holder had no right to perform, acts performed improperly, and failure to act in the face of an af?rmative duty to act? See 1997 Iowa AG LEXIS 26, *11-14. Other legal authorities de?ne misconduct as that which ?affects, interrupts, or interferes? with the performance of an of?cial duty. See 4 McQuillin Mun. Corp, 12:327. As for maladministration, it has been held to simply mean ?wrong? administration. See Minkler v. State, 15 NW. 330 (Neb. 1883). Page 9 of 12 To determine that an action constitutes misconduct to support removal, the fact ?nder will often ?nd that ?the alleged misconduct was committed willfully and with an evil purpose.? See State v. Bartz, 224 632 (Iowa 1974). An ?evil purpose? is found by ?grave misconduct or such ?agrant incompetency? to show an ?unfitness for the position.? State ex rel. Crowder v. Smith, 4 267 (Iowa 1942). Courts have also found evil purpose/malice by looking at the frequency of the conduct in question to infer malicious intent. See State ex rel. Collins v. Garretson, 207 Iowa 627 (Iowa 1929) (noncompliance happened so frequently as to be the rule, not the exception); see also, State v. Callaway, 268 841 (Iowa 1978) (a repeated pattern of misconduct warranted removal). In a related case, a mayor was removed for misfeasance after contacting the treasurer and directing them to write off a delinquent water account after falsely stating the council had voted to write-off said debt. See In re Recall of Lee, 122 Wn.2d 613 (Wash. 1993) (mayor?s conduct ?affected? the performance of both mayor?s and treasurer?s duties and the mayor ?carried out her duties in an improper manner and failed to perform her duties faithfully.?) In another case, the mayor was removed after making a false report to the council about a police chief, which was contradicted by the testimony of other witnesses. See Boyer v. City of Potosi, 77 62 (Mo. Ct. App., 2002). Violations of ethics codes have also been found to be grounds for removal, such as a case where a city removed an elected of?cial after he twice violated that city?s ethics code by representing himself in front of the city?s zoning board. See Price v. San Marcos, 744 349 (Tex. App. Austin 1988) (?the City's goals of preventing the appearance of impropriety, con?icts of interest, and self-dealing in local govemment?all legitimate ends?were rationally related to and achieved by applying the ethics ordinance to [the elected of?cial] and his removal from of?ce?) Page 100f12 Based on a thorough review of the evidence of this case?including the witness statements, exhibits, testimony and briefs, we ?nd that the City?s special prosecutor has satis?ed the elements for the removal of the Mayor of the City of Muscatine. Speci?cally, pursuant to Section 1-7-6 of the City Code, we ?nd that, as set forth above, the Mayor has willful and habitual neglected to perform her duties, she has failed and refused to perform her duties, she has committed willful misconduct and maladministration in of?ce, and she has used her of?ce and title in a dishonest and fraudulent manner tantamount to corruption. We further ?nd that the Mayor repeatedly willful acted contrary to her af?rmative duties to do otherwise and that the Mayor?s behavior affected, interrupted and interfered with the performance of of?cial City duties. Finally, we ?nd that the Mayor has engaged in grave misconduct and ?agrant incompetency showing she is un?t for her position?especially given the frequency of her misconduct. Page 11 of12 ORDER IT IS THEREFORE THE ORDER OF THE CITY COUNCIL that Mayor Diana L. Broderson shall be immediately removed from the of?ce of the Mayor of the City of Muscatine, and further order that 'she immediately relinquish all City property to the City Clerk. Dated this day of May 2017. Bob Bynum Scott Natvig Phillip Fitzgerald Michael Rehwaldt Allen Harvey Santos Saucedo Tom Spread City Clerk to mail copies to: William J. Sueppel Meardon, Sueppel Downer, P.L.C. 122 South Linn Street Iowa City, IA 52240 ATTORNEYS FOR RESPONDENT John A. Nahra 6204 Emery Court Bettendorf, IA 52722 SPECIAL PROSECUTOR FOR CITY Page 12 of 12