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Amended petition filed in Armstrong case

Attorney resists motion to dismiss

July 26, 2017
Amy H. Peterson - Staff Writer (apeterson@esthervillenews.net) , Estherville News

Emmet County Attorney Doug Hansen filed an amended petition July 11 in a case calling for the dismissal of three Armstrong City Council members.

The petition outlines several cases of the three council members' willful misconduct or "maladministration" in office. Maladministration is "the improper performance of some act" which is otherwise lawful for city council members to do. It does not require that the act be illegal or done with an "evil heart or criminal intent," according to Hansen's petition on behalf of the citizens of Armstrong.

Armstrong citizen Sheila Linge filed the original petition signed by 104 Armstrong residents in Emmet County District Court in May.

Armstrong city attorney Brian Thul of Whittemore filed a motion to dismiss, a demand that Linge and the signers of the petition file a bond in the amount of $100,000 each for legal defense of the three council members named, and a counterclaim for attorney's fees for each named council member, to reimburse them for anticipated private attorney's fees for what Whittemore called a "frivolous" lawsuit. Thul called the petition "malicious prosecution" by the petitioners. Thul also requested the court assess the petitioners for legal fees for the defense of the Iowa Public Information Board matter and a punitive damage of $5,000 fine to each.

The Iowa Public Information Board dismissed the petition Linge filed complaining of acts by the three council members. Margaret E. Johnson, Interim Executive Director for the IPIB, entered the order May 18, stating the IPIB does not have the authority to address issues of alleged behavior of city council members.

Hansen appeared on behalf of the state of Iowa in the controversy over whether Armstrong city council members Patty Thackery, Dan Moore, and Rhett Hiney should be removed from their positions by the State.

Hansen's amended petition states the swimming pool manager for the 2017 summer swimming pool season is not qualified and did not have the necessary certifications.

"This exposed the City to civil liability in the event of a personal injury at the pool," Hansen stated.

"Defendants approved hiring the person anyway in defiance of persons bringing the information to their attention. This constitutes willful misconduct" Hansen stated.

Hansen stated the maintenance supervisor was re-hired after he was fired by the mayor because he failed the water certification courses.

"Re-hiring this unqualified person to test and maintain the purity of the City's drinking water endangered the health and safety of the residents of the City," Hansen stated.

Hansen also detailed the mishandling of the employee union and the re-hiring of the city clerk after she was put on paid administrative leave pending the outcome of the criminal investigation.

Hansen said the city suffered numerous financial losses due to the clerk's failing to file reports with state and federal agencies, failing to make required payments, and making improper payments.

"This constitutes willful misconduct and maladministration in office," Hansen stated.

Six Armstrong residents, Sheila R. Linge, Nick Mart, Terry E. Sathoff, Karen Ulrich, Gerald Steinberger and Nancy Steinberger provided notarized signatures on the petition as representatives of the 104 signers of the original petition.

City attorney Thul filed a Motion to Dismiss, stating there is no proof that the six representative signers of the amended petition are living within the municipal limits of the city of Armstrong.

Hansen, in a resistance to the Motion to Dismiss, states the action to remove the three council members does not require an accusation of willful misconduct or illegal acts.

Hansen stated, "A large number of citizens are dissatisfied with the decisions made by these council members."

Thul requested the court set a bond in order for the petitioners to move forward. Hansen stated, "Defendants [the city] are trying to intimidate citizen petitioners by insisting that the Court set an unreasonably high bond, thus discouraging the prosecution of their case."

Hansen requested the court waive the bond, because "citizens bringing the action do so for the public benefit, and therefore, the public stands the cost of the action and not the citizen petitioners personally." Hansen stated this is State policy according to Iowa Code Chapter 66.

Thul stated on the record that his fees will be paid by the City of Armstrong, win or lose. Hansen's office will not bill anyone for his fees as this work is part of his county salary.

Hansen stated, "Case lawrequires the City of Armstrong to pay [Thul's] attorney fees; not the citizen petitioners."

Thul issued a counterclaim and a request for punitive damages on behalf of the City. Hansen stated Chapter 66 of the Iowa Code does not provide for a counterclaim and added there is no statute, rule or case law authority for punitive damages.

The Armstrong City Council will next deal with the employment issues of Police Chief Craig Merrill. Merrill was placed on paid administrative leave and his taser and computer taken for investigation. The July 31 city council meeting has been set to address these issues. As of press time, no agenda had been issued for that meeting.

 
 
 

 

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