MAY 02 2017 mam: BEFORE THE CITY OF MUSCATINE, IOWA CITY COUNCIL IN THE MATTER OF: DIANA L. BRODERSON BRIEF AND MEMORANDUM OF LAW COMES NOW, Diana L. Broderson, Mayor of Muscatine, Iowa, by and through her undersigned counsel, and hereby submits her Memorandum of Law in support of her defense: BACKGROUND AND PROCEDURAL HISTORY: Mayor Diana L. Broderson was elected by the citizens of the City of Muscatine in November of 2015. She was sworn in on December 17, 2015, and took office officially as Mayor of Muscatine on January 4, 2016. Throughout 2016, the City Council, City Administrator, City Attorney, and Mayor Broderson faced challenges in effective communication due to competing priorities and personality conflicts. The Council took various legislative actions throughout the year to strip the Mayor of her powers provided by Iowa law, and the City Administrator and City Attorney continued to conflict with the Mayor when she posed various apparently challenging questions and sought answers for concerned citizens in the course of her duties as Mayor. Based on these con?icts, the City of Muscatine filed "Written Charges of Removal" against Mayor Diana L. Broderson on February 17, 2017 under Iowa Code Section 66.29 and Muscatine City Code Section 1-7?6. These charges were drafted by the City Attorney, Mr. Matthew Brick, at the direction of the City Council and City Administrator. The City Council voted on Thursday, January 12, 2017 to authorize and instruct the City Attorney to file these Written Charges of Removal. Minutes of Evidence were prepared and "Sworn Statements" were taken in anticipation of these charges being drafted and filed. A Special Prosecutor was hired by the City Council to prosecute its case before the City Council. Mayor Broderson was served with the Charges and Notice of Hearing on March 9, 2017. The hearing was held before the Muscatine City Council, acting as both Judge and Jury, on March 23, 2017 and concluding on April 1, 2017. In total, the hearing lasted for over twenty hours. The City Council asked that the parties prepare briefs on the relevant law and proposed decisions. The Council has indicated they will vote on whether to remove the Mayor following the submittal of the briefs. The City Code requires a two-thirds affirmative vote to remove Mayor Broderson from the office of Mayor. At the outset of the proceedings, Mayor Broderson filed a motion requesting the Council to recue itself from any adjudicative functions in order to protect her due process rights. This motion was heard by the City Council prior to receiving evidence. The City Council voted to reject the Mayor's Motion to continue with the hearing deciding that they would sit in adjudication of the charges that they ordered to be filed. The Written Charges of Removal and Legal Arguments filed by the City cited numerous allegations against the Mayor which the City claimed constitute "Willful Misconduct and/ or Maladministration" through: (1) Defamation and False Allegations; (2) Failure to Comply with the City Code of Ethics; (3) Failure to Comply with the City 2 Code; (4) Breach of Fiduciary Duties; and (5) Misuse of Power and or Abuse of Office. The City also alleges the Mayor has engaged in "Willful or Habitual Neglect or Refusal to Perform the Duties of Her Office" throughout her term in office. The City called the following individuals totestify to the contents of their Sworn Statements: Frances Annette Donelson, James Jerald Edgmond, Gerald Ewers, Deana Fleming, David Gobin (telephonically), Randall Eugene Hill, John Hintermeister (telephonically), Nancy Lueck, Michelle Mietzger, Shelley Meyer, Brandy Dulceak Olson, Alan Ostergren, Stephanie Romagnoli, Jeffrey W. Sorensen, and Brett Talkington (telephonically). Additionally, the City called Louis Savelli, Greg Mandsager, and Matthew Brick to testify. Throughout the proceedings, various procedural irregularities occurred. On March 23, 2017 and April 1, 2017, While the City Council members were acting in their adjudicative capacity as both judge and jury, the following events occurred: (1) Councilman Santos Saucedo testified to the veracity or authenticity of Exhibit and his opinions thereof, later testifying twice to facts in question by two separate Witnesses, and then updating his Facebook status from his iPad while a witness was testifying, cancelling a practice scheduled for later in the evening; (2) Councilman Tom Spread testified about Exhibit 1 attached to the Sworn Statement of Jeffrey Sorensen and words either contained or not contained therein, his memory of Exhibit 1, as it was an email from him of his recollections of an event, and then again later about whether or not a word appeared in a different exhibit used demonstrativer by a witness; and (3) Councilman Rehwaldt interjected to "point out a mistake" in a Sworn Statement of a 3 witness. He later leaned over to discuss a point with witness, Greg Mandsager, who was on the stand testifying. He fell asleep, at one point, during testimony. Finally he recused himself from one vote on one procedural motion due to a "con?ict of interest." Each of these events happened while the Council members were acting in an adjudicative capacity presiding over the hearing. Other irregularities included City Administrator Mandsager opening the door to observe the proceedings even though, as a witness, he was ordered excluded from the proceedings when not testifying. The Mayor was not notified of a telephonic witness in advance, so that she could prepare to have documents and evidence she intended to use for their cross-examination available electronically or by other means. APPLICABLE LAW: Iowa Code provides for the Removal of Public Officers under Chapter 66, which also allows a City to set forth a removal procedure through ordinance. IOWA CODE 566.29 and 66.30. Iowa Code Section Chapter 66 and relevant case law is controlling for the proceedings under Muscatine City Code 1-7-6. 1. Muscatine City Council is an Improper Venue: Procedurally and foremost, it is important to note that these removal proceedings should not have occurred before the Muscatine City Council. Mayor Broderson filed a Motion for Removal to District Court to protect her due process rights. The City Council rejected the motion to file the pending charges in the Iowa District Court in and for Muscatine County to ensure there is an "untainted body" to 4 present the case to, which guarantees a "fair trial in a fair tribunal." Botsko V. Davenport Civil Rights Com'n, 774 841, 848-854 (Iowa 2009). As noted in her Motion, as part of these proceedings, Mayor Broderson is entitled to the full protections of due process of the United States and Iowa Constitutions, and these rights were violated when the City Council moved forward and denied her request. The United States Constitution states that no person shall "be deprived of life, liberty, or property, without due process of law,? in its Fifth Amendment, and its Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property, without due process of law.? This is extended by the State of Iowa in Article I, section 9 of the Iowa Constitution which affirms that "no person shall be deprived of life, liberty, or property, without due process of law.? The Supreme Court of Iowa has stated that process requires fundamental fairness in a judicial proceeding' so a trial that is fundamentally unfair violates the guarantees of due process in the United States and Iowa Constitutions." More v. State, 880 487, A 499 (Iowa 2016) (quoting State 1). Becker, 818 135, 148 (Iowa 2012), internal citations omitted). On February 22, 2017, in Burke v. City Council of City of Lansing, the Court of Appeals of Iowa was ruled on a similar situation as is presented here in the Matter of Diana L. Broderson. The @136; case involved a removal proceeding of a City Councilman under a City Ordinance and Chapter 66. The Court in Bnge found that a City Council involved in prosecuting, investigating, and deciding a removal case was a clear intermingling of functions that amounted to a violation of Burke's due process 5 rights. Burke V. City Council of City of Lansing, 2017 WL 706214, 5 (Slip Copy) (Iowa Ct. App. 2017). The court found that when the Council authorized the initiation of the removal process, it was essentially serving as prosecutor. 1g. This hearing where the Council acted as complainant, judge, and jury amounts to a violation of Mayor Broderson's due process rights. Beyond that, the Council participated as Witness while acting as judge and jury, amounting to another violation of the Mayor's due process rights. The numerous procedural irregularities in these proceedings, such as the inability to show exhibits to telephonic witnesses, creates an inability for the Mayor to face those witnesses who are testifying to facts and charges against her with appropriate cross-examination. Adding to the unfairness of the process, the City Attorney drafted and filed the charges against Mayor Broderson and then acted and served as chief witness explaining the charges through testimony and his legal conclusions thereof following his personal "recusal." Additionally the City Attorney's law firm acted as legal advisor to the City Council during the hearing proceedings, acted as advisor for the prosecution prior to the hearing date, and provided paralegal assistance to the Special Prosecutor in the actual prosecution of the charges. Hardly a fair hearing where the City Attorney serves as Prosecutor, Witness, and Advisor to the City Council. As a result of these serious irregularities, unfair procedures, and due process issues raised, it was improper for the City Council to refuse to follow Iowa Code Chapter 66, which sets forth a clear procedure for removal proceedings that would have protected constitutional due process for Mayor Broderson. This process creates a due 6 process violation that was specifically condemned by the Court of Appeals in the Burke case. 2. Mayor Broderson Has Not Engaged in Willful Misconduct or Maladministration The City has the burden of proof in this matter for both production and persuasion. The City must prove the charges by clear, satisfactory, and convincing evidence. This requires the City to establish the facts by more than a preponderance of the evidence, but something less than beyond a reasonable doubt. State v. Bartz 224 .W.2d 632, 638 (Iowa 1974). The City defined misconduct in their Charges as "any unlawful behavior by a public officer in relation to the duties of this office, willful in character, and embraces acts which the office holder had no right to perform, acts performed improperly, and failure act in the face of an affirmative duty to act." The City then set forth five categories of specific misconduct. Throughout the witness testimony, the City alleged that the Mayor violated sections 1.003 (2) and 1.001(v) of the City's Ethics Policy by: (1) "making baseless complaints;" (2) "making complaints without sufficient evidence;" (3) "attempting to change state law to override City Code;" (4) "making allegations against a member of the public Without evidence;" (5) "making allegations Without evidence;" and (6) "filing complaints Without evidence" which all amounted to Willful Misconduct and Maladministration of Office. Additionally, the City alleged that the Mayor was acting outside the scope of the authority prescribed to her by Iowa law and the Muscatine City Code, and that such act amounted to maladministration. This is not the 7 legal standard established, by statute or legal jurisprudence, for the removal of an elected official. Willful Misconduct or Maladministration of Office is consistently defined under Iowa Code Chapter 66 as intentional, with acts that are committed knowingly, and with a evil purpose or purpose to do wrong. The cases interpreting Chapter 66 show the grounds for removal are serious, and require evil design, corrupt motives and purpose, and grave misconduct. See State v. Callawav, 268 841, 842 (Iowa 1978) (Mg order to establish "willful misconduct" as a ground for removal, it is necessary to show a breach of duty committed knowingly, with an evil intent and with a purpose to do wrong"); State ex. rel Cochran v. ZeigIeL 202 NW. 94, 96 (Iowa 1925) Mg that the primary purpose of the statute is the protection of public interests, and Mg that "such peril arises only when his administration of the office is marked by such grave misconduct or such ?agrant incompetency as demonstrates his unfitness for the position," as the controlling purpose of the statute); and State v. Bartz, 224 632, 638 (Iowa 1974) (summarizing that the Court has "said that in cases where a public official is charged with misconduct, maladmjnistration or corruption under ?66.1, The Code, it must be proven that the alleged misconduct was committed willfully and with an evil purpose"). Removal is drastic and penal. The object is to rid the community of a corrupt, incapable or unworthy official. State v. Callawav. Acts which are simply irregular, even if Violative of statutes, are not in themselves grounds for removal from office, unless an evil and corrupt motive, on the part of the Officeholder is shown. Bartz, 224 at 638. The types of acts which have warranted removal for willful misconduct or maladministration of office under this Iowa statute are serious and should not be construed _Se_e Op. Atty. Gen. 1948, 224 (describing improper expenditure of public funds authorized by a Board of Supervisors would rise to the level of maladministration); or Op. Atty. Gen (Buren) March 11, 1966, WL 157566 (s_ta_ti_ng that an action of a City Council diverting public funds to an unauthorized use would be maladministration); or State v. Missildine, 245 .W. 303, 304 (Iowa 1932) findin a "mere error in judgment" is not maladministration of office or willful misconduct); and State v. Meek, 127 NW. 1023, 1024 (Iowa 1910) (m that the term willful misconduct is not applicable to every mistake or departure from the law or statute defining an officer's duties, and is not even applicable to simple voluntary acts, but that the statute requires an evil and corrupt purpose.) Even acts that are irregular or specifically prohibited by a statute do not rise to the level needed to warrant removal, if there is no evil and corrupt design and purpose. _Se_e State v. Manning, 20 Iowa 525 (Iowa 1935). The law sets this standard high, and requires proof by clear, satisfactory, and convincing evidence. Callaway, 268 at 842. In State v. Bartz, the Iowa Supreme Court noted that there is a paucity of case law construing or applying the removal of provisions of Chapter 66. The Court stated that this was indicative of the fact that the remedy for removal of a duly elected official is a drastic measure and that the usual method of removing officeholders is by resort to the ballot. 8am, 224 .W.2d at 638. The Mayor presented evidence throughout the proceedings that showed that her statements or actions were made with well-researched history, facts, and information 9 that the Mayor reasonably believed should be shared to protect the best interests of the Citizens and City of Muscatine. At no time did the City present evidence of any intent of the Mayor, and at no time did any witness testify that the Mayor knowingly acted With any evil purpose or intent to do wrong. Intent is a critical element that must be proven to remove an elected official. Without proving evil intent or purpose or intent to do harm, the City has not met its burden of proof necessary to support removal. The evidence presented in this matter showed unequivocally that the various acts Mayor Broderson has been accused of do not rise to the level of "Willful Misconduct or Maladministration of Office" as stated under Iowa law. Breach of etiquette, stern language, breach of decorum, public disagreement, and con?icting opinions do not come close to the intent of the law warranting removal of an elected official. Greed, corruption, fraud, and other serious crimes of moral turpitude call for removal. The Mayor's actions in these situations do not rise to this serious standard and do not meet the legal criteria set forth by the statute or case law interpreting the relevant Chapter. A. Mayor Broderson Did at Engage in Defamation or Make False Allegations Defamation is defined under Iowa law as the publishing of written or oral statements that tend to injure a person's reputation and good name. Newell V. Holdings, LLC, 834 463, 470 (Iowa Ct. App. 2013). To establish defamation, the City would need to prove that the statements made were false and that they caused damage. Ii If the statement is against a public official, there are two additional 10 elements required to be established by the City by clear and convincing evidence: both that the statement is false, and that it was made with actual malice. Bertrand v. Mullin, 846 884, 892 (Iowa 2014). Malice is only established when the City proves the substantial requirement that the statement was made with knowledge that it was false or that the Mayor showed a reckless disregard for whether the statement was false or not when it was made. Stevens v. Iowa Newspapers, Inc., 728 823, 830 (Iowa 2007). The City also alleges that the Mayor made unfounded claims or false allegations against various individuals without "authority to do so." The Mayor presented evidence refuting each of these allegations and showing that she had a factual basis to make every statement that have been alleged as "defamatory." She provided such evidence when making these statements. For instance, in the most notorious claim offered by the City alleging defamation, the Mayor's concern over a contractor, it was shown that the Mayor spoke the truth. The litigation involving the contractor in Davenport was widely and publicly reported. The City, so quick to persecute, didn't even bother to investigate the Mayor's concerns. B. Mayor Broderson Did Not Fail to Comply with City Code The City alleged that Mayor Broderson failed to comply with Sections 1.003 and 1.001(v) of the Muscatine Code of Ethics, and city and state laws by making personal charges against the character or motives of the City Council, members of the public, or City employees. The various allegations raised by the City of such personal charges 11 allegedly made by the Mayor do not rise to the level of willful misconduct and maladministration of of?ce. (See _B_ar?z, Manning, and Callaway) The con?icts between the City Code of Ethics, the City Code, and the Code of Iowa all create a con?ict as to what law or policy the Mayor is subject to. The City Code states that "[t]he Mayor is not a member of the Council and shall not vote as a member of the Council." Muscatine City Ordinance 1-7-4; IOWA CODE ?372.4 (2016). The City Code of Ethics states that it is applicable to officers of the City, which it defines as, in pertinent part: "?rng of the City Council" and goes on to govern "Member" standards of conduct. Sec. 1.002; Sec. 1.003 Muscatine City Code of Ethics. The City's Code of Ethics specifically states that it applies to employees and council members. However, the Mayor and others testified that it was not applied to or enforced against employees or used to govern employee behavior when City employees engaged in personal attacks against the Mayor in council meetings. Witnesses also testified that the Code of Ethics was not invoked or enforced when a member of the City Council gave a personal presentation filled with statements against the Mayor. Testimony and evidence also showed the City chose not to enforce the Policy when employees of the City posted in?ammatory and personal attacks against the Mayor on social media websites for the public to examine. Testimony and evidence showed that the City only applied and invoked the Ethics policy when it concerned the Mayor. The City has based the majority of its "charges" against the Mayor on alleged violations of the Code of Ethics. The City chooses not to apply it to members of the Council or employees in the same manner the City has applied it to the Mayor. The City 12 witnesses testified to this, citing "free speech" rights while not providing the Mayor the same such rights, when the Mayor and the city employees have the same free speech rights under the Constitution. C. Mayor Broderson Did Not Fail to Comply with City Code The City alleges that Mayor Broderson violated City Code Section 1-10- which seeks to prevent contact between "any elected official" and City employees, and prohibits Council Members from directly issuing orders to City employees. The limited direct contact that the Mayor had with City staff was not in violation of the City Code and would not rise to the level of willful misconduct or maladministration of office. The Mayor never ordered staff to act in any way. The Mayor copied the City Administrator and/ or City Attorney on emails as requested to by the City Administrator as required. gee Exhibit DD, 1, FF. Occasional brief conversations with city staff in no way contravenes the City Code, and no testimony indicated otherwise. The idea that a Mayor would need permission from a City Administrator to say hello or ask a brief question pertaining to the City of any employee would lead to an absurd result and inefficiencies in conducting City business. Not only is this Ordinance outrageous in its application to the Chief- Executive Officer of a City, it was not fairly or uniformly applied to the other elected of?cials mentioned in the Ordinance. The evidence showed that this standard is also not applied equally to the Mayor and Council members, it was only applicable when the City Administrator chose to enforce it. The Police Chief and Economic Development Director both testified that 13 they spoke with Council members and even the Mayor at times and did not need "permission" from the City Administrator to do 50. D. Mayor Broderson Never Breached Any Fiduciary Duties A fiduciary obligation and duty is imposed under Iowa law when there is a fiduciary relationship between the parties. The Restatement (Second) of Torts states that "a ?duciary relation exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation." Restatement (Second) of Torts ?874 cmt. a, at 300 (1979). The Iowa Supreme Court states that factors indicating a fiduciary relationship exists include: "the acting of one person for another; the having and exercising .of in?uence over one person by another; the inequality of the parties; and the dependence of one person upon another." Weltzin v. Cobank, ACBJ 633 290, 294 (Iowa 2001). The Mayor has duties, according to the City, to act in good faith, exercise reasonable care, and maintain loyalty to the City. The City provides no specific law or citation to its definitions of fiduciary duty and where the obligations arise from. The obligations of the Mayor to the City and the Citizens of Muscatine, were met and exceeded. The Council and City staff, on the other hand, have taken unreasonable steps and actions to incur the direct costs for which it now tries to blame the Mayor. The evidence showed that costs incurred by the City Council, the staff, and the City Attorney were done on their own volition and Without direction or demand by the Mayor. There was no testimony to indicate that the Mayor required the City to incur 14 such expenses, or that the Mayor even requested such expenses be incurred. breach of any fiduciary duties occurs when a Mayor is acting in what she believed to be the best interests of the City and the citizens she was duly elected to represent. Every act the Mayor took was taken with an toward what was best for the City. She wanted to make sure that the City was following the law and above reproach. The City has misapplied the fiduciary standard against the Mayor. The City, again, has not proven the elements necessary to establish a breach of fiduciary duty under Iowa law. There is no proof provided as to how this would rise to a level of willful misconduct or maladministration under Chapter 66, Iowa Code. 13. Mayor Broderson Did at Misuse Her Power or Abuse Her Discretion Misuse of Power and Abuse of Discretion are general terms used by the City in their charges and throughout the City Attorney?s testimony to encompass multiple acts it claimed constitutes acts that have caused substantial harm to the City and its citizens. The City provided no testimony or specific law or citation to define these terms or where the standards come from for public officials. There is no relevant case law or statutes by which removal from office can be sustained for these alleged violations, as Chapter 66 establishes the grounds upon which the Mayor may be removed. The evidence showed that the Mayor neither misused her power nor abused her discretion in her acts as Mayor. She continually acted in the best interests of the Citizens of Muscatine and in order to protect the interests of the City, as she was elected to do. This would appear to be a made up standard by the City and certainly is not a standard 15 set forth in the Iowa Code or case law, to constitute a legitimate ground to remove an elected official from office. Those grounds are set forth in Iowa Statute for removal of an elected official, and do not include misuse of power or abuse of discretion. These undefined phrases cannot be considered by the City Council as a legal standard in deciding whether the Mayor should be removed. The City Council is duty bound to follow Chapter 66, Iowa Code. F. Mayor Broderson's Actions Were Not Willful The City argues that the Mayor's actions are deemed willful because she was "warned" multiple times regarding the scope of her authority. Simply stating that the Mayor was "counseled" or being made aware, and yet continuing to take voluntary actions outside the "scope" of the authority presented to her by the City Attorney and City Administrator does not constitute willfulness under Chapter 66, Iowa Code, pertaining to removal from office. See Infra Callawav, Zeiglg, Bartz, and Manning for interpretations of what constitutes willfulness under the applicable Iowa law. Additionally, a mayor, under Iowa law and Muscatine City Code has expansive duties and scope of authority. Powers and Duties of the Mayor, Muscatine City Code, 1-7- 2. The City counseled the Mayor only when the City Administrator or the Council did not agree with the Mayor, or when they changed the law or ordinances to limit the Mayor's powers and authority. The evidence presented here of disagreement about policies and their interpretation of strong con?icts between personalities are insufficient to rise to the level of actions warranting removal under the applicable law. 16 3. Mayor Broderson Never Engaged in Conduct that Amounts to Willful or Habitual Neglect or Refusal to Perform the Duties of Her Office Willful and Habitual Neglect of Duties is an additional ground set forth for removal under Muscatine City Code and Iowa Code Chapter 66. The City stated in their "charges" and through testimony of the City Administrator and City Attorney that the Mayor was "educated on the scope of her authority" and her limitations and has failed to properly perform her duties by abiding by these limitations set forth. Iowa law defines the terms willful and habitual neglect under Chapter 66 as act that would constitute willful refusal to perform duties, or through neglect, violated the law. Sullivan, 299, NW. 411 (Iowa 1941) (finding no willful or habitual neglect or refusal to perform duties where county supervisors acted on routine matters, consulted various authorities and attempted to obtain information they needed or could get to make informed various officials.) The evidence presented showed, like in the Mn case, that the Mayor acted on well-founded beliefs, in consultation with officials in various capacities, and only in so far as the duties under Iowa law allowed and dictate she act. She followed procedures of Iowa law, reported acts to the proper authorities, and acted within the bounds of her defined authority. The Mayor never refused to perform a duty she was obligated to perform. The fact that the Council did not like the way she performed her duties does not constitute willful neglect or refusal to perform the duties of the office or willful misconduct or malfeasance as required under Chapter 66, Iowa Code. The Mayor acted fully within the authority granted to 17 her by law. All action taken by the Mayor were with the best interests of the City in mind. 4. The Mayor Did Not Engage in Campaign Finance Ethical Violations The City alleges that the Mayor engaged in violations of Campaign Finance laws at various times. However, the City presented no evidence. The testimony presented by the City showed that the City never even consulted the State Ethics Board. The Mayor, however, testified she did consult with the State Ethics Board and the Board found that the Mayor acted in full compliance with the law. The City, should they believe the basis for removal to be some sort of campaign finance violation, should seek those remedies through Chapter 68, through the proper prosecution by the State, and in the proper venue of a court of law. Trumping up a phony charge, without evidence and without legal basis, showed the extent to which the City needed to reach in this matter in its attempt to remove the Mayor. 5. "Statements of Fact" Against Mavor Broderson Do Not Meet These Legal Standards Required Under Iowa Law As stated above, Iowa has clear case law on What constitutes the proper standard for removal from office, what actions constitute a basis for said removal, and what procedures are appropriate when this removal process is undertaken. The City, in their charges against Mayor Broderson, have set forth "Statements of Fact," and sometimes referred to in the prosecution as allegations, that they believe form the basis for the 18 Mayor's removal from Office. For clarity and for sake of completeness, the Mayor will address each allegation individually and the evidence presented on each allegation. The legal standards presented above are applicable to each of these items. As shown below, it is clear that none of these items, individually or considered as a whole, rise to the level of actions that would warrant the extraordinary remedy of removal from office. Each item is addressed in the same numerical order they were raised in the "Charges" filed by the City.1 A. The "Charges": 1. . The Mayor was accused of making baseless complaints to the City Attorney, amounting to a violation of the Ethics Policy. The testimony on item 1 showed that the Mayor was only relaying information that was expressed to her by concerned citizens. They were not unfounded, or "baseless" complaints. The Mayor called the appropriate person, the City Attorney, to discuss these issues. As the Mayor testified, the City Attorney advised her to contact the State Ombudsman. The Mayor's personal notes from that conversation show the Ombudsman's phone number was given to her during her conversation with the City Attorney, and the email from the City Attorney acknowledges this contact with the Ombudsman and thanks the Mayor 1 While the Mayor will address each of these allegations individually, no response herein or at trial should be deemed an admission that the Council has authority to adjudicate such "charges." The City's charges include various accusations of violations of City Ethics Policies, City Code, "opening the City to potential liability," accusations of Mayoral acts without Council approval, and apparent violations of campaign finance laws, though no actual findings of such violations or charges have ever been made by the appropriate authorities who have lawful jurisdiction to do so, or that such violations or a basis for such charges even exist under Iowa law. The Mayor maintains that the City Council is without jurisdiction to even consider many of the "charges" they have set forth. 19 for the "update" on the issues they had discussed. ?g Exhibits A and A1. 53% Exhibits D, E1 showing basis for various complaints. 2. The City Attorney testified that item 2 under "Statement of Facts" did not represent the basis for a charge for removal against the Mayor. It is clear from the text of this allegation that this could not form the basis of any removal of the Mayor. 3. There is no charge listed in item 3 of the Charges against the Mayor. What is apparent in this item is a potential violation of Iowa's Open Meetings laws. Going into closed session to have the City Attorney explain the role of elected officials and his belief of the apparent liability to which the City was exposed to, and to berate the Mayor does not appear to meet any of the strict standards allowing a council to go into closed session. This is especially true when, as the City Attorney testified, the purpose of the closed session was to discuss personnel issues and professional competency of the City Administrator under Iowa Code 21.5(i) and "strategy" in matters relating to employees not covered by collective bargaining under Iowa Code 21.9, i.e. the City Administrator and other employees of the City. Exhibit BB. 4. The charge in item 4 accuses the Mayor making "baseless" complaints of gender discrimination. At the time the Mayor sent the Email in question, the Mayor questioned whether she was being treated differently because of her gender. See Exhibit W. The outside investigator in fact did confirm that the Mayor felt she was being treated differently because of her gender. This investigator specifically testified that he did not believe the Mayor was lying about her beliefs. These facts alone show there was a basis for the Mayor's belief. However, beyond that, the investigator refused to 20 interview any of the individuals the Mayor provided to them which would corroborate her story. The fact that the City Attorney hired an outside investigation team from Des Moines to investigate the Mayor's email statement, when no formal complaint had been filed by the Mayor, was the City's choice to do. Evidence and testimony was presented at the hearing which showed that previous City employees had made specific gender- based complaints against specific male City Council members and no such investigation was ever conducted. gee Exhibit G. The most interesting detail in this charge is that the City Administrator provided a closed session tape to a private investigator without ?rst obtaining a court order, in apparent direct violation of Iowa Code Chapter 21. 5. The City Attorney testified that there was no charge listed in item 5. Testimony on this issue showed that the Mayor was personally attacked on social media by employees of the City. The City refused to enforce its Ethics Policy or its Social Media Policy. The policies stated that the City expected respect and politeness between employees and City officials on personal social media accounts. Enforcing the City's own Social Media policy, according to the City Attorney's testimony, would amount to a violation of free speech guarantees and federal labor laws. The Mayor was now the person on the hot seat for even bringing these personal attacks up and seeking the City to enforce its policies. The Mayor has not been afforded the same free speech rights. 6. The charge in Item 6 is that the Mayor stated she was being bullied and discriminated against by the Council and City Administrator and should be removed 21 from office for making such "baseless complaints" in violation of the Ethics Policy. First, the testimony and evidence showed that the Mayor never said she felt discriminated against in this instance. She expressed an opinion that she felt bullied. Expressing her personal feelings is not making a "baseless" allegation. The Mayor' 3 personal opinion, likes those persons posting on social media, has 1st Amendment "Free Speech" protection. Additionally, the City failed to prove the critical element of evil intent or purpose of the Mayor. These types of statements do not rise to the level of grave misconduct warranting removal. 7. The City Attorney testified that he agreed that the Mayor never filed a "complaint" against the City when she met with the Ombudsman. The Mayor shared with the City Attorney that she was contacting the Ombudsman, and he said he appreciated the update. See Exhibit A1. There is no evidence that the Mayor ever filed a complaint. Further, a Mayor meeting with the State Ombudsman to discuss issues that have arisen or been brought to her attention as Mayor, is simply the Mayor meeting her duties to uphold the laws of the State of Iowa and protect the City. The Mayor was acting under a legal duty and within her legal rights to do so. The Mayor was acting in the best interest of the City. The City failed to establish any facts that would establish this item as a violation of City Code, City Ethics Policy, or State or Federal law that would warrant removal from office. 8. The Mayor's statement alleged under item 8 was presented as evidence at the hearing. Exhibit O. No personal attacks or verbal charges or claims were made in that statement that could amount to "baseless claims" in violation of the City's Ethics 22 Policy. The City completely mischaracterized the Mayor's words in bringing this allegation. . 9. No evidence was presented that showed the Mayor was attempting to change state law to override City Code as described in item 9. The Mayor did not advocate for any change of the law. Testimony showed that the Mayor was informed, that a state legislator upon hearing, that the Mayor could not contact the City Attorney directly, sought to change state code. The Mayor had no further contact with any legislators with regard to this matter. She did not attempt to change state law or override the City Code. The City presented no evidence to the contrary on this item. Beyond that, however, even if she had, the Mayor is still a citizen of the United States of America, Whether she is Mayor of Muscatine or not. She is entitled to contact representatives regarding State law, and has not given up her constitutional rights to participate in a the democratic process simply by being elected Mayor. The City provided no evidence to establish any evil intent or purpose on the part of the Mayor. 10. The City Attorney testified that there was no charge under item 10. The Mayor provided public records to the press when asked. The Mayor was previously informed that her e-mails were public records. The concern that chain emails do raise is whether they constitute an open meetings violation, as all Council members were present on the e-mails and discussions about issues facing Muscatine were occurring via email. After the public became aware of these email discussions, the City attempted to correct the issue. However, simply adding a disclaimer of "this email is not an attempt to elicit discussion" does not offer protection from an open meetings violation. 23 11. The Mayor was charged with "making allegations against a member of the public without evidence" on item 11. The City, through various witnesses, expressed that the Mayor engaged in "defamation" though not one person could actually elicit what they meant when testifying using such legal terms, or What elements would need to be met to make such a serious charge against the Mayor. The Mayor passed on concerns that were expressed to her about a contractor that was bidding on a City project. The Mayor passed along the truth. Upon investigation, which the City never bothered to do, they would have discovered that the contractor had caused problems with the casino project in Davenport. It was covered extensively in the media and the facts were substantially as the Mayor indicated. The Mayor had a duty to protect the best interest of the City. Passing on information with regard to a potentially troublesome contractor served to help the City. The amazing thing was that no one in the City bothered to do so much as to even Google the name of the contractor and the Davenport casino project to discover that the Mayor was providing accurate information. The Mayor did not violate City Code or policy in contacting the City staff as she copied the City Administrator on the email, as he had previously directed. The Mayor simply passed on information and her expression of concern. There was evidence to support the Mayor's concerns, and no violation of City Ethics Policies occurred. The City presented no evidence to contradict the Mayor's testimony. The City has failed to prove this allegation, let alone show that this was done by the Mayor, with some evil purpose or corrupt motive. 24 12. The City Attorney testi?ed that there was no charge listed in item 12. The Mayor was told, through an e-mail, that she could contact City staff as long as the City Administrator was present or copied on the communication. ?ag Exhibit DD, I, FF. She has not violated that directive. This does not and should not form the basis for removal from the office of Mayor. 13. Item 13 alleges that the Mayor violated City ordinances by stating her intent to form a task force or committee. The Mayor did not violate the City Code when she sought to seek citizen input on issues facing the City. The Mayor never actually created any task force or committee. The Mayor never actually authorized the expenditure of funds. The Mayor simply stated that she intended to create a task force as the previous Mayors had done on multiple occasions. Simply to state a desire to take action is not a violation of the Code, nor is it a violation of any policy of the City. This is a petty charge which shows the animus toward the Mayor that had developed only a few months into her term. The idea that the Mayor cannot speak or express an opinion that might be contrary to the stated beliefs of Council members or City administration, without having a charge brought against her, confirms the Mayor's belief that she was being bullied. Again, there is no evidence as to any evil intent or grave misconduct on the part of the Mayor. 14. The City Attorney testified that no "charge" exists under item 14 when the Mayor requested that an original appointment she made be placed on an agenda. What this item shows is the continued animus by Council members to act against any action the Mayor sought to take in her appointment powers. 25 15. The Mayor is accused of making allegations without evidence when she asked the City Attorney whether or not previous mayors had authorization to form task forces when it became clear that she was being held to a different standard. She asked the City Attorney simple questions. She did not state that the committees were not properly authorized, she asked how they were properly authorized under the City Code. She asked a question. She did not make a claim or complaint. The City Attorney could not answer how the committees were formed. He stated that he did not know whether they were properly authorized or not. Again, the e-mails between the City Attorney and Mayor show that the charge, as stated, is completely unfounded. The Mayor did not allege that the committees were not properly authorized. No evidence was presented to prove this allegation. There is no showing of evil intent, purpose, or corruption in the Mayor's inquiries. ?g Exhibits I and CC. 16. The Mayor did not allege any criminal violation by Council Member Fitzgerald when she forwarded an email from a concerned citizen. The Mayor stated that a neighbor of Council Member Fitzgerald had raised concerns with her. The Mayor asked the City Attorney for advice as to how this should be handled. The Mayor never "alleged" anything. For the City to state or allege otherwise is a complete mischaracterization of the evidence. The Mayor did provide information with regard to the concerns expressed by the citizen. The charge, again, is misworded to attempt to show some wrongdoing by the Mayor. The e-mails between the Mayor and City Attorney clearly show that the Mayor was not making allegations, but simply asking the City Attorney how the situation should be handled. There was nothing baseless or 26 without evidence as the e-mail clearly shows. This is another example of the Mayor simply doing her duty and the City trying to make it appear that she was causing trouble. S_e? Exhibit DD. 17. The allegation listed in item 17 against the Mayor is false. The complaint to the Board alleged that the minutes were not detailed enough. The Public Information Board agreed that they could be more detailed. The complaint was dismissed after the City agreed to keep more detailed minutes. ?g Order of Dismissal. This was not a complaint without evidence, and in fact, raises additional concerns about the City's continued and dubious uses of closed sessions to discuss issues would not appear to be proper use of closed session under Iowa Code Chapter 21. These closed sessions where "litigation is imminent" were actually being held with the potential adverse party, the City Administrator, allowed into the closed session and it did not appear that litigation was imminent. 18. Under item 18, the charge is that the Mayor held a committee meeting without the council and then made allegations against the Council in violation of the Ethics Policy at the meeting. The idea that the "Coffee with the Mayor" was somehow a "committee" is ludicrous. By definition, a committee must be more than one person. The Mayor simply had a forum in which people could ask her questions and she would answer them. A forum that was also attended by Council members who also identi?ed themselves as Council members and answered questions from the public. What is interesting that the Mayor and the male Council members did the same thing at the same meeting, but the Mayor is charged with a violation of the City's ethics policy. The 27 act of the Mayor in holding a forum to talk with her constituents does not rise to an act done knowingly, willfully, and with an evil or corrupt purpose. This serves to reinforce the Mayor's belief that she is being bullied. The idea that the Mayor cannot call herself Mayor without City Council or City Administrator approval is ridiculous. Simply stating that I am the Mayor is not a violation of any law or policy. The Mayor is the duly elected Mayor of'Muscatine and has a right, as the Mayor, to use that title. The Mayor did not spend City money, did, not usurp City resources in any way by having the "Coffee with the Mayor." In fact, the City advertised the first two "Coffees with the Mayor," which is tantamount to approval since the City Administrator authorized the advertising. Stating that she disagreed or outlining the disagreements that she has had with the Council and administration is not a violation of the City's ethics policy. Stating that she tried may times to work with the Council without success is, at worst, simply her opinion, at best, a statement of fact, neither of which are ethical Violations. She didnot disparage anybody. She did not take anyone's name in vain. She simply stated her frustration. The idea that the Mayor cannot have an opinion or disagree publicly with Council and staff again shows that she is being treated differently. The City has failed to show any corrupt or evil intent, design, or purpose behind the Mayor's gathering. She was doing her job, meeting with the citizens to ask and answer questions regarding the City's activities. 19. Item 19 shows the absurd results of the City's ordinance on contact between elected officials and staff, which has not been uniformly applied. The Mayor 28 was approached by a City department head, who was telling her about his plans for the City. The Mayor stated that she would like to have regular meetings with City staff. That is the extent of the Mayor's action. This may be the most petty charge of them all. It is a one sentence conversation with a staff member. This does not amount to Willful Misconduct or Malfeasance in office. There is no evidence that the Mayor ever met with City staff on a regular basis. She simply stated her desire to have staff meetings, with the City Administrator present, on a regular basis to understand what was happening in the City. Again, no evidence was presented showing an evil intent, grave misconduct, or corrupt purpose from the Mayor. 20. Item 20 alleges that the Mayor filed complaints without evidence, amounting to another violation of the Ethics Policy. The Mayor, following conversation with the State Ombudsman, asked for an audit involving City expenditures for an extended trip to China and providing City staff to work with the Chinese when it was in Muscatine. The complaint obviously had evidence, as the Auditor ordered a special audit, which has lasted approximately one year and has continued to today. If the concerns expressed by the Mayor were baseless or without evidence, no further investigation of the matter would have taken place. The fact that the audit team reviewed City records with the City's accounting firm and then decided that what they saw warranted a more detailed investigation shows that there was evidence associated with the Mayor's concerns. The Mayor was perfectly within her rights to ask for the audit. The Mayor is authorized to ask for a special audit. No evidence was presented 29 by the City to show evil intent or grave misconduct. The Mayor is trying to make sure city funds are properly expended and accounted for. This is part of her duties as Mayor. 21. The City Attorney testified that the Mayor did not make a "complaint" as alleged in item 21. Again, this charge is factually incorrect and the City Attorney agreed in testimony that no "complain was ever filed (even though the City Attorney drafted the charge). The Mayor did not file a complaint with IPERS, the Mayor contacted IPERS with regard to an employee that was not gone from the City for one month prior to working with the City again. The as the evidence shows, was not baseless. Iowa Code provides that an individual may not retire and receive IPERS retirement benefits and then begin working for an IPERS-covered city for one month following retirement. Iowa Code 97B.52A. The individual obviously did that as the City has testified to and confirmed. The fact that the City was able to prearrange for this employee to come back through a temporary agency less than one month after retirement does not make the inquiry baseless. The Mayor had a right to question this practice when concerned citizens asked her about it. 22. Item 22 again raises the broad and unfounded accusation of "making baseless complaints." The Mayor, held a "Coffee with the Mayor," which again, is not a committee. The Mayor expressed concerns, frustration and stated how she was being treated as Mayor. The Mayor has every right to publicly state her feelings and how she feels that she was treated poorly. The fact that the parties may disagree does not make her claims and concerns baseless. Again, these public complaints do not rise to the level 30 of willful misconduct or malfeasance in office. The City failed to offer evidence of evil or wrongful intent or purpose or corrupt motive. There is no factual basis for each one of the seven alleged charges against the Mayor. The charges are not an accurate portrayal of the Mayor's statements. The Mayor did not state that the social media posts were not investigated. She stated that there was nothing the City felt it could do. The Mayor testi?ed and stated that she has had employees tell her directly that they were and are afraid for their jobs. The Council has clearly done nothing to support her since she was elected, as evidenced by taking her powers away and bringing this action. That is a statement of fact. She truly believes that gender has played a role in her treatment. This is her reasonably-held belief. The investigator also confirmed that is what she believes. She believes that the City Administrator is the primary cause of her problems. The City Administrator told her that he runs the City, and he clearly does, as no one can speak to each other without his prior authorization. That is clearly the individual that runs the City. These were not verbal attacks or personal charges, they were statements of personal belief and fact. 23. Item 23 makes an apparent allusion to a campaign finance violation without the City presenting any evidence. This is a spurious allegation. The City never investigated the Charge or contacted the Ethics Board. The Mayor contacted the State Ethics Board, and the Board agreed that this expenditure was perfectly legal. The City provided no evidence of any wrongdoing relating to campaign finance. Using the term "unelected bureaucrat" is not only factual, but it is not a personal charge against any individual member of the City Council or City staff, and therefore 31 not a violation of the Ethics Policy. Calling the Council bullies does not rise to the level requiring removal from office. The term "closed door backdoor government" was referencing a dislike for the dubious use of executive sessions and chain e-mails to conduct business outside of the public view. The Mayor ran on a platform of having open government, and this was one of the issues that she wanted changed. The fact that the Council disagreed with her idea of open government and the fact that she publicly called them on it is politics, not willful malfeasance or willful misconduct in office. What is interesting in this point is that there have been actual admonishments filed against City Council members by the State Ethics Board, and yet the City failed to take any action against those male Council members or file charges seeking their removal. Exhibit RR1. 24. Under item 24, the employees of the City of Muscatine again were disrespectful and publically disparaging the Mayor on social media. How do City employees have more rights to speak and post about elected officials than the Mayor? Why doesn't the Mayor have the same free speech rights? How does the City, by policy or ordinance, change the US. and State Constitution? Asking for information and researching options and inquiring into what, if any, action can be taken against employees that were badmouthing her is not an ethics violation or any other type of violation supporting removal from office. If the City's own policy violated federal law, it should not have been provided to the Mayor as the Social Media Policy. It should have been amended or repealed. The Ethics Policy should be enforced against the 32 employees and council members in the same manner it is being enforced against the Mayor. 25. The City Attorney testified that no charge existed under item 25. Receiving legal advice and charting legal strategy on apparent potential liability from the City Attorney, in a closed session meeting, where the potential adverse litigant is present, however, is a questionable use of closed sessions under Iowa's Open Meetings laws. 26. 0 charge was stated under item 26, according to the City Attorney's testimony. 27. Item 27 again makes a claim that the Mayor violated campaign finance laws without any basis for such allegations. The Mayor's use of campaign funds to distribute a letter to the public was approved by the State Ethics Board as a legitimate use of campaign funds and not a violation of the campaign finance law. Stating in that letter that the Council blocked her appointments was a true statement. Providing telephone numbers and e-mail addresses of Council members that were posted on the City website is clearly not a violation of City ordinance or policy. There were no personal charges or verbal attacks upon the character or motives of any member of the City Council in that letter. While the Mayor disagreed with the Council on many things, she did not directly attack any individual. No violation of law or policy was proven for this charge. 28. The City provided no testimony as to the Mayor's conversation with the reporter. The City has the burden of proof and presented no proof on item 28. A mere 33 allegation does not rise to the level of clear, convincing and satisfactory evidence to support a violation of the City's ethics policy, let alone rise to the level, justifying removal from office. The Mayor's belief that the City Administrator was the cause of her problems is a sincere belief and a well-founded belief as confirmed through this particular proceeding. The Mayor testified that the City Administrator explained to her that he runs the City. What makes that statement more believable is the fact that the City has codified a process by which no one can speak to a staff member without first having authorization from the City Administrator. If you are the one that everyone must first seek permission from before acting or speaking, you are the person in charge. That is a fact, not an opinion. Again, there is no showing of evil purpose, intent, or grave misconduct by the City. 29. The Mayor saw the Economic Development Director at a prayer breakfast and stated that she wanted to be involved in the proposed River Port Project. The charge on its face is ridiculous. The claim that this brief encounter constitutes willful malfeasance or willful misconduct supporting removal from office is beyond the pale. There is absolutely no showing of the evil intent that the City is required to prove. This statement was not made in a way to harm the City in any way, shape or form. Having such an innocent conversation and having a policy that was not uniformly applied against the Mayor as a basis for removal is not only ludicrous, it is lacking any basis in Iowa law. 30. The testimony on item 30 at the hearing showed that Jeff Sorensen's actions were directed to Kas Kelly. He testi?ed that he had very little involvement with 34 the Mayor. The Mayor testified that she in no uncertain terms suggested that the facility should sponsor a spaghetti supper. The Mayor while identifying herself as the Mayor of Muscatine, did not seek action on behalf of the City of Muscatine, nor did the apartment manager believe that she was seeking to act as a representative of the City of Muscatine. She understood that the Mayor was questioning two things regarding her mother, who lived at the facility. Following the issue of a no-trespass order against Kas Kelly, the Mayor contacted the Police Chief to see how this order was obtained and whether it was a legitimate and enforceable order. She took no further action, nor demanded any further action be taken. The evidence presented for this claim presents no basis to support the Mayor's removal from office. 31. Item 31 mischaracterizes the evidence and testimony of the witnesses. The Mayor contacted the County Attorney not to have him press charges, but to question whether it was illegal to tape-record her without her knowledge when the Mayor was told that that tape recorders were turned off. The County Attorney testified that the Mayor did not. ask him to pursue any legal action. The actions of the Mayor in no way violated the City's ethics policy. The Mayor made no verbal attacks or personal charges upon the unethical journalist. The Mayor asked the County Attorney, the proper authority in interpreting State Code, if a violation of the law existed. The Mayor explicitly states in the email: don't know if this is a criminal matter or a civil matter. Any advice you can give me would be appreciated." See Exhibit MM. She did not make a charge, she asked a question. Asking a question is not making a baseless complaint. 35 Seeking information on your legal options from the proper legal authority is not a violation of City Code or Iowa law. 32. The Mayor rightfully questioned the dubious use of a closed session to discuss her and the exclusion of her from the meeting. The complaint was not without evidence. The evidence was clear that the Mayor was excluded from the closed session. Her complaint centered around whether the Council could vote to keep her out of a closed session. Again, the Mayor did not make any personal charges or verbal attacks upon the character or motives of any member of the City Council. The Mayor simply asked whether Iowa law allowed her to be excluded from a closed session. The Mayor had the right to question her exclusion. 33. No charge was listed under item 33, according to the City Attorney's testimony. 34. The allegation under item 34 as drafted totally mischaracterizes the Mayor's actions and the evidence presented clearly showed this. The Mayor asked whether it was a violation of Chapter 400 to change the City ordinance with regard to the appointment of the Civil Service Commission. The County Attorney agreed that the City Ordinance violated Chapter 400. The County Attorney further agreed that the Mayor correctly read the statute where it directed that a violation of the statute was a criminal offense. The County Attorney said that it would be difficult, if not impossible, to charge any individual under the statute. This matter was also discussed with the Attorney General, and the Attorney General's Office agreed that the City Council violated State Code by changing the City ordinance to remove the appointment power 36 of the Mayor. The County Attorney testified that the Mayor did not claim that he had been ordered to file criminal charges by the Attorney General. He stated that was another individual that had contacted him. The County Attorney also testi?ed that the Mayor did not ask him to file criminal charges against anyone. The Mayor acted within her authority to ensure that the City follows the law. The City presented?no evidence that the Mayor had an evil purpose or corrupt motive in seeking that the City follow State law. 35. Again, the City tries to allude to some sort of campaign ethics Violation, Without any proof, Without any investigation, Without any consultation With the State Ethics Board and without the jurisdiction to do so. The City carries the burden and has not met it. Furthermore, the Mayor has contacted the State Ethics Board, and the expenditure of monies for attorney fees in defending herself in this matter is a proper campaign fund expenditure. The City improperly accuses the Mayor of a violation of Campaign laws where it has not investigated and offers no proof, and yet fails to pursue similar charges against male elected officials who have received actual admonishments under the law. 36. The Mayor did not request or demand that any of these monies be spent. The fact is that the City chose to spend money, Without consulting the Mayor or discussing the matter with the Mayor. This totally misconstrues the ?duciary responsibility or a violation of a fiduciary duty by the Mayor. The Mayor in no way intentionally or wrongfully spent City money or misappropriated City money. The Mayor never directed any staff member to act in any way. The Mayor did not request 37 that this money be spent or that these actions be taken. That was something the City chose to do on its own. This does not amount to any violation by the Mayor that would authorize her removal. The Mayor did not violate any law or policy. Nothing in Chapter 66 authorizes removal under this claim. CONCLUSION Acts, whether of omission or commission, in order to constitute grounds for removal must have been done knowingly, willfully, and with an evil or corrupt motive or purpose. State v. Manning, 20 Iowa 525 (Iowa 1935). Like the Court said in Manning, in the case of Mayor Broderson, there has been no showing by the City that the purpose of her actions or statements was meant to harm or which was inimical to the interests of the City. No evidence of any corrupt or evil design or purpose as presented by the City, and no corrupt or evil purpose is manifest from the evidence. Intent is an essential element that must be proven in order to establish the grounds on which support the removal of an elected official. The City failed to meet its burden of proof in this matter. The City has not proven that the Mayor's conduct was so detrimental that she was incapable or unworthy to serve out her term of office. The City's "Statements of Fact" filed with charges against the Mayor as compared to the actual evidence and testimony presented at hearing show a complete disconnect between what the City believes amounts to appropriate bases for removal from office and what the actual laws of Iowa provide for. Setting aside the due process violations, venue and jurisdictional issues, and other various improper irregularities of these 38 proceedings, the Mayor's alleged actions do not constitute any proper basis for removal from office under Iowa law. The evidence showed that the Mayor has not engaged in Willful Misconduct and/ or Maladministration, including any alleged defamation, making false allegations, breaches of any fiduciary duty, or misuse of power or abuse of office. None of the alleged actions of the Mayor violate the City Code of Ethics or Ethics Policies. The evidence showed that the Mayor did not engage in Willful or Habitual Neglect or Refusal to Perform the Duties of Her Office. What these allegations do show is that the Council, City Attorney, and City Administrator had animus toward the Mayor from Day 1 of her taking office and from that point onward took note of each and every action she made, turning them into these stated "charges" for removal. The Mayor may have been a thorn in the side of the Council and City Administrator and an annoyance to the City Attorney. The Mayor and the Council may have serious disagreements as to how the City operates and who should be allowed to participate. However, none of the actions she took could ever amount to the serious actions necessary to constitute a basis for removal from office under Iowa law. For these reasons, the Mayor of Muscatine, Diana L. Broderson, respectftu requests that the City Council dismiss the charges for removal filed against her by the City Council of Muscatine, Iowa. ResPectfully submitted this 2nd day of May, 2017. 39 Respectfully submitted, MEARDON, SUEPPEL DOWNER P.L.C. .x By William]. Sueppel AT0007628 billjs@meardonlaw.com By WW Catherine Gerlach AT0011856 cadyg@meardonlaw.com 122 South Linn Street Iowa City, IA 52240 Telephone: (319) 338-9222 Fax: (319) 338-7250 ATTORNEYS FOR MAYOR BRODERSON 4O