“Due process requires a fair trial before a fair tribunal, not simply the empty appearance of fairness,” declared District Court Judge Mark Cleve in a ruling that threw out the removal of Mayor Diana Broderson in May. Cleve found that the Muscatine City Council’s “fundamentally unfair” actions violated Broderson’s due process rights in two ways: by in effect having council members act as investigators, prosecutors, and judges; and by “having an interest in the outcome of the removal proceeding.”

The October 24 decision (enclosed in full below) drew heavily on what happened during five closed meetings between February 2016 and January 2017. During those sessions, council members discussed with city attorney Matthew Brick their grievances against the mayor and various options for dealing with her.

The city of Muscatine had unsuccessfully appealed to the Iowa Supreme Court, hoping to prevent the District Court from considering transcripts of those closed sessions. And no wonder: Cleve found “the record clearly demonstrates that the Council had prejudged the issues,” and that “the Mayor’s removal was a foregone conclusion.”

Although Cleve did not directly address Brick’s conduct, his decision raises questions about the legal advice council members received from a partner in Iowa’s top law firm for representing municipalities.

“FUNDAMENTALLY UNFAIR” REMOVAL PROCEEDINGS

You didn’t need to be an attorney to spot major problems with how the Muscatine City Council tried to get rid of an elected mayor:

• The written charges of removal repeatedly depicted political speech by Broderson as willful misconduct or ethics violations.

• City council members instructed the city attorney to draw up removal charges, then presided over the hearings that determined her fate.

• At one of those hearings, “independent prosecutor” John Nahra presented testimony in a highly irregular way, preventing any effective cross-examination of witnesses by the mayor’s counsel.

• Council members voted unanimously to remove Broderson at a meeting that lasted less than three minutes, without any discussion or opportunity for public comments.

Broderson filed suit in mid-May, days after the final act in kangaroo court. (I’ve enclosed her initial filing at the end of this post.)

District Court Judge Mark Smith hinted at the strength of her case in his June 16 ruling, granting the plaintiff’s motion for a stay of her removal pending the consideration of her case on the merits. Key excerpt (from page 13 of this document):

To ensure a fair trial and a fair tribunal, “no man is permitted to try cases where he has an interest in the outcome.” Keith v. Community School District, 262 N.W. 2d 249, 259-60 (Iowa 1978). In Burke v. City Council of Lansing, No. 15-1797, 2017 WL 706214*5 (Iowa Ct. App. Feb. 22, 2017), it was held that a city council’s involvement in prosecuting, investigating, and deciding a removal case, “violated due process because of the “intermingling of functions.” Due to the above-stated factual findings by the Muscatine City Council which suggest inherent conflicts of interest and personal knowledge of the allegations which was presented before them by their special counsel, the Court finds there is a probability that the actions of the city council in acting as jurists in adjudicating the matter of removal will be set aside.

Indeed, the October 24 ruling by District Court Judge Cleve cited the “intermingling of functions” as evidence of due process violations. The full text is below. Here are some important passages.

Acting as prosecutors and jurors

After laying out background facts (pp. 1-4), the judge analyzed how courts evaluate possible due process violations (pp.4-6) before stating, “The Court concludes that the Defendants violated the Plaintiff’s right to due process in two ways: 1) by intermingling investigatory, prosecutorial, and adjudicative functions during the removal process; and 2) by having an interest in the outcome of the removal proceeding.”

Starting on page 7, Cleve identified the “Intermingling prosecutorial and adjudicative functions,” which “on its own is fundamentally unfair and is sufficient to establish a due process violation without showing prejudice.” Highlights from pages 9-12 (emphasis added):

Here, in order to understand the functions the City Council undertook in the Mayor’s removal, the Court must consider the transcripts of closed meetings the Council held prior to initiating the removal process. The five closed meetings the Court considered in this certiorari action were held on February 18, 2016; June 23, 2016; October 13, 2016; December 15, 2016; and January 5, 2017. […]

The Iowa Code chapter 66 removal process was first discussed at the meeting held June 23, 2016. At the end of this meeting, the City Council authorized the City Attorney to further research the removal process. This research was presented to the Council at its October 13, 2016, closed meeting. […]

At the December 15, 2016, closed meeting, the City Attorney informed the Council that he had spoken with a number of public relations experts about what the Council could do to restore its image in the community. Based on the advice of the public relations experts, the City Attorney told the Council that it needed to decide what the end goal was with regard to the Mayor: whether it was to remove her or just to weaken her to ensure that she would lose the next election. The Council discussed a number of options, which included filing an Iowa Public Information Board complaint, filing the removal charges but never holding a hearing, or filing charges and holding the removal hearing. The City Attorney noted that the next steps would vary greatly depending on the Council’s end goal.

The Council then decided to take a straw poll to determine its end goal. The Councilmembers went around the table, each stating his opinion with regard to the path forward. After most of the Councilmembers had stated their opinion, the City Attorney clarified and asked what the consensus was with regard to the end goal. The Council again decided to go around the table for a vote. At the end of this vote on December 15, 2016, all but two Councilmembers had voted in favor of removing the Mayor from office.

During the January 5, 2017, meeting, the City Attorney presented the Council with a draft of the charges of removal. The City Council discussed whether it should file all of the charges, or if it should leave certain charges out until the Councilmembers were able to see what the Mayor’s response was and then amend the charges to add more later if needed. During this meeting, the City Attorney discussed the number of charges included in the removal document, noting that the Mayor would have to disprove each and every charge and if she was unable to do so, she would be removed. The City Attorney followed up by noting that they wanted to make sure they won.

During the January 5, 2017, meeting, the City Attorney also again asked about the end goal. In response, one of the two Councilmembers who had not voted in favor of removal during the December 15th meeting stated that he was now in favor of removing the Mayor from office. At that point, the vote by the City Councilmembers was at least 6–1 in favor of removing the Mayor from office. It is important to note that this vote took place prior to the hiring of an independent prosecutor, prior to filing the charges of removal, and prior to the removal hearing.

The Defendants contend that there was no intermingling of prosecutorial and adjudicative functions because the City Council hired an independent prosecutor, made express findings of fact and conclusions of law, gave the Mayor the ability to present evidence and a meaningful opportunity to be heard, and only performed ministerial procedural actions to commence the evidentiary hearing. The Defendants contend that to succeed in showing a due process violation, the Plaintiff must overcome the presumption of honesty and integrity in the adjudicators.

The City relies heavily on the fact that it hired a special prosecutor for the Mayor’s removal hearing. The City did in fact retain Mr. Nahra as a special prosecutor, and provided him with all of the documents it had regarding the investigation into the Mayor’s actions. Mr. Nahra reviewed the charges of removal, interviewed witnesses the Council identified, and was the prosecutor at the removal hearing. However, prior to hiring Mr. Nahra the City had already completed a substantial amount of the investigation and essentially all of its strategizing. This is clear from the City Attorney drafting removal charges prior to the January 5, 2017, closed meeting and from the Council having already discussed which charges to include.

Moreover, the record clearly demonstrates that the Council had prejudged the issues. The Council had voted at least 6–1 to remove the Mayor from office before the removal hearing had even been scheduled. In sum, the record shows that the Council had a “will to win” the removal hearing and that the Mayor’s removal was a foregone conclusion.

Due process requires a fair trial before a fair tribunal, not simply the empty appearance of fairness. Upon review of the record in this case, and based on the totality of the circumstances, the Court reaches the inescapable conclusion that the City Council impermissibly intermingled investigative, prosecutorial, and adjudicative functions which rendered the Mayor’s removal proceedings fundamentally unfair, and thus violated her due process rights.

A “personal interest in the proceeding”

On pages 12 through 15, the judge analyzed facts pointing to the city council’s interest in the outcome of the removal proceedings. He cited a 1961 Iowa Supreme Court ruling, which held, “[N]o man is permitted to try cases where he has an interest in the outcome.” An Iowa Court of Appeals decision from February of this year held that it was “fundamentally unfair” for four Lansing City Council members to vote to oust their colleague, because those council members “understood they would have no financial exposure for possible violations of the open meetings law if they removed” him.

Some important paragraphs from pages 13-15 (emphasis added):

The record in this case contains many examples of how both individual Councilmembers and the Council as a whole had an interest in removing the Mayor from office. By the time the Council held the June 23rd meeting, the City Attorney was aware that Gregg Mandsager was considering bringing a defamation suit against the Mayor. The City Attorney also discussed how the Mayor had allegedly defamed numerous people—including the City Councilmembers themselves—and that all of these individuals could bring defamation suits. The City Attorney discussed his concern that the City’s insurance policy might not cover the Mayor if she were sued, and that it could get to the point that the insurance provider might take the position that the City Council was not acting within the scope of its duties, was not honoring its fiduciary obligations, and should have done more. The City Attorney warned the Councilmembers that the City’s insurance policy might not protect them from personal liability if the City or the City Council were sued unless they took action, including initiating a removal proceeding. The City Attorney mentioned multiple times during the closed meetings that the Councilmembers needed to protect themselves in case there was a lawsuit.

In addition to possible personal liability, it is clear from the record that the City Council believed that the Mayor had damaged the Council’s reputation in the community. The Mayor publicly accused the City Council of being bullies and good ol’ boys, of not supporting her as Mayor, of taking away her powers and not preserving democracy, and of sullying the names of the individuals she selected for appointments. The Mayor alleged that the City Council had discriminated against her based on gender, was against diversity, and was a “D.C. style closed door, back-room government.” The Mayor also accused the Council of criminal activity. The Mayor spoke to the City Attorney about one Councilmember allegedly breaking the law with regard to certain city ordinances.

Additionally, the Mayor filed complaints with the Iowa Public Information Board accusing the Council of violating the open meetings law. The Mayor contacted the County Attorney about pressing criminal charges against all of the Councilmembers for violating the Civil Service Statute, and contacted the Iowa Attorney General’s office for an opinion on that matter. […]

The Court makes no determination as to the accuracy and soundness of any or all of the Mayor’s statements, allegations, or complaints, as they were known to the Defendants at the time of the removal hearing. However, when the Council made the decision to remove the Mayor from office the Councilmembers had a strong interest in shielding themselves from potential personal liability, in preventing the Council from being the focus of further accusations, and in restoring its image in the community while negatively impacting the Mayor’s image. Thus, the City Council had a personal interest in the proceeding at the time it removed the Mayor from office which rendered the removal proceedings fundamentally unfair. Moreover, the Councilmembers’ vote on the Mayor’s removal was decisive in that the Councilmembers were the sole judges who determined whether the Mayor would remain in office or be removed. The Court therefore concludes that the City Council’s interest in removing the Mayor from office constituted an additional due process violation.

QUESTIONABLE LAWYERING

Matthew Brick was the primary attorney advising Muscatine City Council members before they embarked on removing the mayor. Though it may seem strange for a Mississippi River town to pass over local talent for a lawyer based in West Des Moines, consider the context: the Brick Gentry law firm has represented dozens of Iowa municipalities for decades.

A good attorney doesn’t just find a way to do whatever the client wants. A good attorney considers whether the client may be heading down a legally indefensible path. If so, a good attorney will suggest alternative approaches that don’t set the client up to defend an expensive lawsuit.

Although Judge Cleve blocked the release of transcripts from the closed Muscatine City Council sessions, his analysis suggests that at several key moments, Brick failed to warn his clients that they were about to violate Broderson’s due process rights.

Brick could have steered city council members toward finding a way to work with a mayor they disliked. But during the closed meetings, “the focus shifted from resolving conflict to finding something they could do about what they believed was the Mayor’s wrongful conduct.” According to Cleve’s ruling, council members authorized Brick “to further research the removal process” on June 23, 2016. He presented his findings on October 13.

The City Attorney informed the Council that the removal proceedings could take place in either the district court or in front of the City Council, but that the Council would have more control if it presided over the hearing. The City Attorney noted that due process would not allow the Council or the City Attorney to actually prosecute the case, but the City Attorney mentioned he would be able to provide the prosecutor with all of the information he had. The City Attorney walked through the potential charges of removal and talked about strategy with the Council regarding whether it should include certain allegations because some of the potential witnesses might not be willing to testify at a removal hearing. The City Attorney, however, assured the Council that most, if not all, of the allegations they had discussed during the closed meetings would be included in the removal charges.

Here was an opportunity for Brick to counsel his clients against escalating their political disagreements. Instead, he guided council members toward presiding over the removal hearing themselves, so they “would have more control” over the outcome than in district court. He appears to have given them false assurances that as long as a different prosecutor handled the mayor’s ouster, using all the evidence Brick had compiled, due process concerns would be satisfied.

Cleve’s account of the December 15, 2016 closed meeting indicates that Brick was preoccupied with public relations and helping council members defeat their political rival, rather than thinking through legal problems:

At the December 15, 2016, closed meeting, the City Attorney informed the Council that he had spoken with a number of public relations experts about what the Council could do to restore its image in the community. Based on the advice of the public relations experts, the City Attorney told the Council that it needed to decide what the end goal was with regard to the Mayor: whether it was to remove her or just to weaken her to ensure that she would lose the next election. The Council discussed a number of options, which included filing an Iowa Public Information Board complaint, filing the removal charges but never holding a hearing, or filing charges and holding the removal hearing. The City Attorney noted that the next steps would vary greatly depending on the Council’s end goal.

A 5-2 vote for removing Broderson prompted Brick to start working on draft charges of removal, which he presented to council members at the January 5, 2017 closed meeting.

During this meeting, the City Attorney discussed the number of charges included in the removal document, noting that the Mayor would have to disprove each and every charge and if she was unable to do so, she would be removed. The City Attorney followed up by noting that they wanted to make sure they won.

By that point, six out of seven city council members were on record supporting the mayor’s removal, “prior to the hiring of an independent prosecutor, prior to filing the charges of removal, and prior to the removal hearing.”

Brick apparently did not anticipate that this sequence of events would bolster a due process claim against the city. He did not warn council members that their interest in the outcome disqualified them from presiding over the removal hearings. Based on his advice, his clients believed all would be well as long as the city hired an independent prosecutor. Maybe he was counting on the closed meeting discussions never seeing the light of day.

Cleve’s account suggests that Brick mentioned possible litigation against the city as a reason to get rid of the mayor. He told council members people allegedly defamed by Broderson “could bring defamation suits,” and that “the City’s insurance policy might not protect them from personal liability if the City or the City Council were sued unless they took action, including initiating a removal proceeding. The City Attorney mentioned multiple times during the closed meetings that the Councilmembers needed to protect themselves in case there was a lawsuit.”

Brick graduated from the University of Iowa’s law school “with high distinction,” and he has substantial experience with municipal clients.

Yet he seems to have taken on the role of stenographer, using the council’s venting about the mayor’s “alleged transgressions […] to form the factual basis for the charges of removal.” Some of the charges Brick drew up against Broderson in February were ludicrous. For instance:

18. April 30, 2016, the Mayor held the first “Coffee with the Mayor,” a meeting with the public that was not authorized by the Council. Mayor discussed, among other things, her disagreements with the Council about board appointments and stated that she had tried many times to work with the Council without success. Making these allegations was, among other things, a violation of the City’s Ethics Policy. […]

23. On or about June 20, 2016, the Mayor spent approximately six hundred dollars ($600) of her campaign funds to send a letter to citizens stating that the “good old boys” on the City Council were attempting to destroy the office of Mayor and wanted to take away Mayor’s power to give them to an “unelected bureaucrat.” The Mayor compared the City Council to a closed-door, backroom government and requested help to stand up to “bullies.” This letter consisted of personal charges and verbal attacks upon the character or motives of other members of the Council and City staff. Making these baseless allegations was, among other things, a violation of the City’s Ethics Policy. […]

27. On or about August 1, 2016, the Mayor spent approximately seven hundred fifty dollars ($750) sending a second letter to citizens alleging that the Council was not democratic because they were blocking her appointments to boards and commissions. She provided personal telephone numbers and email addresses of the Councilmembers and encouraged people to contact them directly. This letter consisted of personal charges and verbal attacks upon the character or motives of other members of the Council. Making these allegations was, among other things, a violation of the City’s Ethics Policy. […]

28. August 18, 2016, during an interview with the press, the Mayor told a reporter that the City Administrator was the cause of her problems and that he came into her office on her first day and told her that he runs the City. Making these allegations was, among other things, a violation of the City’s Ethics Policy.

Overturning the will of the voters is a serious matter and should happen only when the elected official has committed a crime or serious misconduct. Criticizing political adversaries doesn’t rise to that level. The Quad-City Times editorial board wrote in March,

Hurt feelings and political entitlement lurk behind all the legalese in the 24-page complaint drafted by City Attorney Matthew Brick. Broderson could be guilty of each and every count and still any case for her removal would be a coup, a slap in the face to the voters who, last year, overruled the entrenched establishment’s will and elected the political newcomer.

These charges are, at best, nitpicky and, at worst, indications of a power structure in City Hall so averse to varied opinions and insecure in its power that you would find more open minds at a toddler day care.

After the District Court ruling came out on October 24, Broderson told Sarah Ritter of the Muscatine Journal,

“The people are not pleased at the expense that has been spent of the taxpayers’ money to go through all of this, and even so there’s only two weeks left to the election, so this was a lot of money spent for nothing really,” Broderson said in an interview. […]

Broderson said she was pleased the judge ruled in her favor before the election on Nov. 7, in which she is seeking a second term.

“This is a win for the people, not just a win for me,” she said. “The people’s voice is what put me in office. In fact, the current council thought they could take away the people’s voice by a vote. But this goes to a great deal to say, ‘no, you can’t.’”

How much the city of Muscatine has spent on legal fees for this misadventure is not yet known. As Bleeding Heartland will discuss in a future post, city officials have impeded public records requests seeking that information. If I were a local government official, I would think twice about relying on legal advice from Brick Gentry.

P.S.- Broderson asked the State Auditor’s Office to examine the city of Muscatine’s budget for fiscal year 2015 and expenses for an “economic development” trip to China by two city officials in December 2014. The report uncovered some problems:

According to City officials, the purpose of the trip was to encourage economic development within the City by investors from China, which serves a public purpose as defined in section 15A.1 of the Code of Iowa. However, the majority of the trip, based on the itinerary provided, involved cultural and sightseeing experiences. There was a visit to a company and a meeting with Chinese entrepreneurs in Beijing; however, there is no documentation of the results of these meetings to determine if the trip complied with section 15A.1 of the Code.

State auditors also identified a “lack of transparency” regarding expenditures and recommended improvements to the city’s oversight procedures. Responding on behalf of the city, Brick defended the China trip as good value and argued the recommended policy changes “would not be practical for a city the size of Muscatine.” A city press release ruled out implementing the auditors’ advice.

The Quad-City Times editors were brutal.

She leveled “unfounded” allegations, whined City Council members and their attorneys. She made “baseless” claims in public, they squealed. […]

In layman’s terms, […] Muscatine officials — City Administrator Gregg Mandsager, Community Development Director Dave Gobin — took a vacation on the taxpayer dole. And when Broderson started asking questions, the City Council ousted her through impeachment, an extraordinary attempt to cover up what looks to be a culture of patronage and cronyism.

As the audit proves, something reeked about the whole jaunt to China. It was Broderson’s duty to ask questions and demand answers.

It should come as no surprise that Muscatine’s legal fees doubled in 2017. Those who run the city don’t respect the taxpayer, evidenced further by the state audit. They’ll blow any sum of tax dollars to defend their cozy little political fiefdom.

UPDATE: Members of the old boys’ club are downplaying the significance of this decision. In a written statement, the city admitted no wrongdoing (though notably, they aren’t signaling any plans to appeal). Excerpts:

“The City of Muscatine respects the ruling of District Court Judge Mark D. Cleve. However, the judge did not rule on the merits of the case. Rather, the judge ruled that City Council had a vested interest in protecting the city from the Mayor’s actions and, as a result, Council Chambers was not the appropriate venue for the removal hearing.

City Council followed Iowa Code in all of its actions. While that section of code may be flawed, it is the law of the state. The ruling may have invalidated that section which is a matter that can only be addressed by the legislature.

While the ruling invalidated the decision to remove the mayor from office, the same ruling left standing the merits of the case which led to the removal vote. We urge the citizens of Muscatine to read the testimony from the removal hearings and the findings of fact that led to the removal vote. The City Council and the Mayor are agents of the electorate and ultimately they are responsible to the citizens of Muscatine.

Similarly, City Council member Santos Saucedo claims Broderson “got off on a technicality,” since the judge didn’t rule on the merits of the charges against her. Most of those charges pointed to political disagreements, not malfeasance that would warrant removal before the end of an elected official’s term.

SECOND UPDATE: The Quad-City Times editorial board was on-point in devastating fashion on October 29.

City Administrator Mandsager’s involvement was especially troublesome. He pulled the strings throughout this entire shameful affair. He bullied the council with threats of defamation lawsuits. He spent gobs of taxpayer cash suppressing release of public records, taking the matter to state Supreme Court. He sent thinly veiled ultimatums to critical media organizations on Muscatine letterhead. He flouted the public trust.

Mandsager spared no expense taking down a mayor he deemed a menace to his dominance over Muscatine City Hall. Mandsager’s willingness to wage open conflict with an elected official is evidence of his total indifference to traditional governmental power structures. […]

There’s an election in Muscatine on Nov. 7. It’s imperative that the new council either rein in Mandsager or show him the door. […]

The entire impeachment charade was an attack on the very concept of justice, all mounted under the banner of the citizens of Muscatine. […]

The unprecedented degree of malice and lawlessness on display for months in Muscatine cannot be overstated.

The new city council would also do well to hire a city attorney who won’t validate an expensive campaign of “malice and lawlessness.”

Full text of District Court Judge Mark Cleve’s October 24 ruling:

Initial court filing by Diana Broderson, along with District Court Judge Mark Smith’s decision granting a stay of her removal:

Top image: Photo by Daniel G. Clark of Mayor Diana Broderson after the July 17 court hearing on her lawsuit challenging her removal from office.