MINUTES OF THE JOINT MEETING OF THE JOHNSON COUNTY TOWNSHIP TRUSTEES, CLERKS, AND THE JOHNSON COUNTY BOARD OF SUPERVISORS:
SEPTEMBER 14, 2009
TABLE OF CONTENTS
Page
History of Townships, Duties of Officers................................................................................. 1
Budgets, Elections and Terms of Office................................................................................... 2
Public Meetings/Public Records............................................................................................... 4
Fence Law............................................................................................................................. 7
Cemeteries........................................................................................................................... 12
Fire Protection and Emergency Services................................................................................ 12
Question and Answer Session with Panel of Experts, and Evaluation, Concluding Remarks....... 15
Chairperson Neuzil called the joint meeting to order in Montgomery Hall, Johnson County Fairgrounds, at 9:05 a.m. Board of Supervisors members present: Pat Harney, Terrence Neuzil, Sally Stutsman, Rod Sullivan; absent: Larry Meyers. Other county officials and staff present were: County Attorney Janet Lyness, County Auditor Tom Slockett, Deputy Auditor Mark Kistler, Executive Assistant Andy Johnson, and Auditor's Office Recoding Secretary Nancy Tomkovicz.
Neuzil welcomed everyone to the joint meeting between the Township Trustees and the Board of Supervisors. He introduced members in attendance and told the group that Executive Assistant Andy Johnson would provide any necessary resources for the Township Trustees and Clerks.
Iowa State University Distance Education Coordinator Donovan Olsen said today's presentation will eventually be available on-line. Olsen said he served as a Boone County Supervisor for six years before being elected to the Iowa Legislature in 2002. He said township government precedes county government and has its origin in colonial New England. At the time, counties were subordinate to townships. The Northwest Ordinance of 1787 charged territorial governors with creating township government loosely based on New England town government. Townships did the bulk of the work that County government does now. Olsen said that as states formed, the legislature gave townships authority to tax and spend, provide local schools, roads, law enforcement, cemeteries, public welfare, and make minor judicial decisions. In 1848 the First Iowa General Assembly required counties to be divided into townships which were then defined as geographical areas of approximately 36 square miles.
Olson said that by the late 1800s, Iowa Township Trustees assumed the responsibilities for tax assessment and collection, schools, cemeteries, drainage districts, bridge construction, and animal disease control. In addition, Trustees served as Constables, overseers of the poor, overseers of highways, fence viewers, and assessors of damage from stray livestock. In the 1920s the Iowa Legislature started to shift authority from Townships to Counties and the State. He said County Supervisors elected county-wide were given more authority and believed to be better equipped to accommodate the wide variety of needs and demands of rural residents. Olsen said in 1975 the Legislature gave Townships the responsibility for rural fire protection. Prior to that there was no universal fire protection in Iowa.
Olsen said the main responsibilities for Township Trustees and Clerks include providing essential and optional services to their residents. Essential services include fire protection, resolution of fence disputes, and maintenance of public cemeteries. Optional services which may be provided are township halls, parks, playgrounds, libraries, community centers, and ambulance services.
County Auditor Tom Slockett said the County has a long working relationship with Iowa State Extension. Auditors work closely with Extension for the certification of precinct election officials and Auditor's Office staff. This certification program is called SEAT, which stands for State Election Administrator Training. He said Montgomery Hall is used to train election officials before each election.
Slockett said there are 125,000 people in Johnson County, 12 school districts, 12 cities, and 21 townships. Iowa City is the largest city in Johnson County. The next largest group of residents in Johnson County is the 21,000 non-ag rural residences governed by the Township Trustees and the Board of Supervisors. He said feedback from the Trustees is very important. He thanked the Trustees for getting their budgets into the Auditor's Office and getting them approved on time. Johnson County has a state wide reputation for meeting postings and publications deadlines. Slockett said he appreciated their hard work. Slockett introduced Deputy Auditor Mark Kistler. He said Kistler works with trustees and clerks on their budgets.
Kistler said he relies on mainly two staff members, Account Clerks Steve Thomsen and Keshab Pokhrel. Kistler said Trustees have four year terms that are staggered and are only voted on at the General Election because they are considered non-partisan offices. There will be two trustees elected in the general election and a trustee and clerk in the following general election. He said they are voted upon by the voters of the unincorporated part of their Townships. If there is a city within the Township, voters may not vote for them. An officer of the City within the Township can be a Township Clerk or Trustee. Their terms begin generally on January 2nd. Kistler said if there is a vacancy of one trustee or the clerk, the other two trustees, (or the three trustees if the clerk position is vacant,) may make the appointments. In a case where there are two openings the Board of Supervisors will appoint the trustees. Kistler said if there is no appointment of the one vacant position within 30 days, the Board would fill that position. If all three positions are vacant, the Board would fill all three positions or they could choose to act as trustees until the next General Election.
Kistler said there was a legislative change calling for the appointment of a position if a trustee or clerk called to active duty created a vacancy for more than 60 days. When that person is released from active duty, they are immediately reinstated to that position. He said the position has changed from partisan to nonpartisan. The requirement to file a petition was also eliminated. An affidavit of candidacy is still required to be filed. Kistler said that Deputy Auditor Lisa Allen asked him to announce that it is very important to file the affidavit of candidacy because it does take some time to finalize the appointment. If the trustee chooses not to serve another term they need to let people know so they can get affidavits filed. Kistler said it is better to be in a situation where there are volunteers, willing to run, and not have the situation where there are multiple write-in candidates.
Kistler said they created a web page for the trustees within the Auditor's web page that would have all the information they would need. He said the web site is at www.johnson-county.com, which is the County webpage. From this page, select department, then select auditor, and then real estate. The real estate page is where all valuation information used for township budgets is located. Kistler said at the top of the Auditor's real estate page there is a link to townships. The first part is a link to Township Trustees and Clerks contact information and terms of service. The next link connects to the Duties of Township Officers Code Sections. Section 359 lists basic duties, and the other sections deal with fence laws, cemetery laws, and open meetings laws. Kistler said they would be able to also choose a live link to the Legislative Service Bureau Code of Iowa.
Kistler said the most recent spreadsheet for the FY10 budget is available on line. The spreadsheet is pretty detailed, it will show meeting dates, the clerks name and contact information, the date it was posted in the Auditor's Office, beginning balances, the amount raised by taxation, any receipts, expenditures, and the ending balance. The valuations tax rate is calculated at the bottom of the page. Kistler said many of them manually calculate that and if it would help, they can bring in the information for their proposed budgets to the Auditor's Office and the staff can help. He said there has been a change in how the Department of Management is handling Township budgets. They exported spreadsheets for Trustees to fill out this year and they will continue to do that. This year the State went to an on-line budget system. The Department of Management site has log-ins for entering individual Township budgets. He said the Auditor's Office will continue to do that for them if they would like. This allows those who wish to input their own budgets the opportunity to do so.
Kistler said financial statements can be downloaded from the web page. The due date for the FY09 financial statement is September 30, 2009. The Clerk has seven days to file the statement with the Auditor's Office. He said last year's statements are on line and as soon as the 2009 statements have been received, those will be posted.
Kistler demonstrated the right way to complete a financial statement. He said Trustees need to show the receipts and expenditures for each of the levies and all forms of revenue and expenditures. In the statement he was showing, he showed how checking, savings, and CD entries are listed for the fire and cemetery for this township. Looking at the revenue page, he referenced the cash on hand entry, the two checking accounts, two savings accounts, and the investments for the two funds. Kistler said most townships probably use just one checking account, which is a perfectly legal, fine way to do it as long as they can keep track of how much is spent for the two funds. He said further down on the page, all the receipts are listed and if they continue on to the next page they are added in. There is a column for each disbursement. He said the beginning balances should equal the ending balances for the previous year. The amount of the beginning balances and the receipts added together on the revenue page should equal the same amount in the cell in the lower right corner of the expenditures page.
Kistler said they have links to the Department of Management, Cemeteries and GIS Mapping. He said the fence viewing forms are on line. Stutsman asked if all the cemeteries were on line now. Kistler said they have spent a lot of time working on that and there are a few they can't find. He said they have a general idea where the ones that are missing are.
County Attorney Janet Lyness said an agenda is a list of the specific items that are going to be discussed during a meeting. It should include the date, time, and location at the top so the public is informed. The agenda gives the public a chance to respond to any issues they have an interest in. The meeting begins with a call to order and ends with adjournment. Lyness said the agenda should be flexible and allow for input. She said the agenda's main goal is to give the public notice of what will be discussed.
Lyness said agendas are required for township meetings when a quorum will be present. The agendas could be posted by the County Auditor. The public meetings law requires that agendas be posted at the Courthouse where typically the Auditor's Office has been. In Johnson County, the Auditor's Office is located at the Administration Building. They usually post agendas at the Administration Building and the Courthouse. This year the legislature changed the required posting time to 24 hours in advance of the meeting. She said there is a sample agenda in the Township Trustee and Clerk Reference Manual.
Lyness said open meetings is covered by Chapter 21 of the Code. A meeting is defined as a gathering in person or by electronic means, formal or informal, of a majority of the members of a governmental body where there is deliberation or action upon any manner within the scope of the governmental bodies' policy making duties. Meetings shall not include a gathering of members of a governmental body for purely ministerial or social purposes when there is not discussion of policy or no intent to avoid the purpose of this chapter. She said if two of the three Trustees get together to discuss fire protection and they are going to take action, that is a meeting and an agenda is required.
Lyness said Township Trustees are a unique body in the State of Iowa in that they are excluded from the requirements of Chapter 21 for having to post every meeting they have. However, agenda posting is required to discuss and approve the budget. Lyness said it is a good idea to post agendas if they are going to discuss policy that could affect their budget or fire protection. It is important to give the citizens in their Township the opportunity to express their viewpoints.
Lyness said Trustees are required to meet a minimum of twice a year. One of these two meetings has to be for a scheduled discussion on the budget and for them to approve the budget to submit to the Auditor's Office. All Township meetings are open meetings unless the law calls for a closed session. Basis for a closed session is very limited. Closed sessions may be held to discuss personnel issues, but any action must be taken in open session. Trustees have to vote on everything in public. Closed sessions are also allowed for litigation purposes. Lyness encouraged the Trustees to call her for clarification on whether to hold a closed session.
Lyness said they have to comply with the Open Meetings Law for having open meetings and posting budget items. If Trustees approve budgets in closed session, that is a violation of the law. She said a violation is punishable by an amount not to exceed $500. She said the Township Clerk should keep written minutes of all meetings. The minutes should include members present and what action was taken. Township records and documents should be kept for five years. Lyness said resolutions, board proceedings, records, and documents relating to the issuance of public bonds or obligations, must be kept for 11 years following the final maturity of the bonds or obligations. She said resolutions, court proceedings, records, and documents relating to real property transactions should be maintained permanently. Public records include notes, contracts, and tape recording of meetings. Lyness said anything that belongs to the Township Trustee is considered a public record. Email communications between Trustees about Township issues should be kept because they could be required to be disclosed to the public. She said anything that includes deliberation, thinking, or communication about some issue, could become public record. Lyness said Iowans have a very strong view towards keeping government open and making records available to the public, to whom they belong. Lyness said the lawful custodian of the public records is the Township Clerk, and when a new Clerk takes the position, all records must be transferred.
Lyness said every person shall have the right to examine and copy a public record and to publish or otherwise disseminate a public record and the information contained in a public record. The Township Trustee's voting record is public record and anyone can ask to have a copy of that record. Lyness said it is their view that they want people to know what government is doing and they want it to be very open. She added that it is a simple misdemeanor to violate Chapter 22, Public Records.
Lyness said the annual statement is due in the County Auditor's Office on September 30th of each year. It should show receipts, disbursements of money levied by each category of levy, current pubic debt, and the June 30th balance of each separate Reserve Fund by the Township. She said a separate statement is prepared by the Clerk and required to be approved by the Trustees. The first meeting of the year will usually be to discuss the budget and the second would be to approve the expenditures statement from the Township Clerk. Lyness said the budget needs to be posted in a prominent place by the County Auditor. If the statement is not timely filed, the County Treasurer must withhold payments to the Township until the statement is filed. She said that statement can be turned in before September 30th. The Auditor has made it easier to get the forms by posting them on the web site.
Lyness said Township Trustees are required to file their annual budget with the County Auditor by March 15th. They are required to have a public meeting and required to post the agenda not less than 10 days before, or more than 20 days before the meeting. She said a copy of the proposed budget and the agenda must be sent to the Auditor’s Office and the Auditor's staff will post it in the Courthouse, which is required by law. She encouraged Trustees to post it in their community also as it is always better to inform the public. They could probably get it posted on the Johnson County web site at no charge. The agenda shall state the time, date, and location for the public meeting. Lyness said that at the close of the public meeting, the budget must be officially adopted and then sent to the Auditor’s Office by March 15. If they fail to timely file the budget, the Township will not receive any additional funds over the previous year.
Lyness said if a budget amendment is necessary, it should be done in an open meeting and the deadline for amendments is May 21st. The County Auditor can provide the forms and assist with this process. The amendment must be posted at least 10 days in advance and must be adopted by the Trustees no later than May 31st. Lyness said if a township wishes to dispose of a piece of real estate or personal property, a public notice, which includes the budget amendment resolution, must be published. The public notice must appear in a newspaper of general circulation not less than 10 days, or more than 20 days, before the meeting of the public hearing. Generally the newspaper is going to be the Iowa City Press-Citizen. Lyness said they may act on the proposal by resolution.
In Johnson County, the County Attorney is not required to act as the attorney for Township Trustees. That is only a required duty of a county attorney in a county with a population of less than 25,000. However, Lyness said that she is willing to serve as the attorney if needed. Even though the County Attorney's office is not required to provide representation, they will do it as much as they can. An exception would be if there is a conflict of interest. Lyness said the County Attorney is obligated to represent the Board of Supervisors, so in the event of a conflict of interest, the Township would have to hire their own counsel. Townships do reserve the option to levy a tax to defray legal costs. She said it hasn’t happened during her time in the County Attorney’s Office. She introduced Assistant County Attorney Scott Finlayson and said Finlayson works with the Township Trustees.
Lyness said the hourly rate of Township Trustees is established by the Board of Supervisors. Kistler said the money is budgeted for Township Trustees and Clerks salary increases, and the formal request will be on a future Board agenda for approval. He said the Board was very tight with requests for increases this year, but they did budget for an increase in the hourly rate from $8 to $10, and an increase in the per-meeting rate from $10 to $12. Lyness said the Clerks are paid the same rate as the Trustees. A Penn Township member said that their clerk is paid an annual flat rate. Another trustee thought the Iowa Code set the clerks rate at 1% or 2% of the budget. Kistler said Trustees and Clerks are paid the same rate. Lyness confirmed that the rate for both should be the same.
Iowa State University Center for Agricultural Law and Taxation Staff Attorney Erin Herbold said an Iowa Fence Law publication can be found on the web. Partition fence issues are the cause of many disputes between Iowa landowners. She said Trustees and Clerks may contact Finlayson to discuss questions on fencing law.
Herbold said partition fences mark property boundaries between adjacent landowners. Iowa has numerous statues which govern fencing disputes. In Iowa, landowners do not have a legal duty to build a partition fence but can be compelled to contribute to the creation or maintenance of a partition fence upon the written request of an adjacent owner. She said at that point the owners are required to contribute to that fence equally. She said there have been more fence disputes because people from urban areas are moving into rural areas and often they don’t have any understanding of fence law.
Herbold said landowners can also be compelled to build or maintain a partition fence on the basis of an agreement such as the utilization of the right-hand-rule. Historically the right-hand-rule has just been custom. She said the right-hand-rule is an informal arrangement by which the landowners face one another at the mid-point of the fence and agree to maintain their share of the fence to their respective right-hand sides.
Herbold said two options are available for an agreement that detail the allocation of fence maintenance and/or construction: adjacent owners can enter into a written agreement, or, adjacent owners can request an order from the fence viewers who will determine the allocation of responsibility between the parties. She said written agreements are preferable because they are recorded, and, subsequently remain with the property. Herbold said that to make the agreement binding, Iowa law does allow owners of adjoining parcels to file such written agreements with the County Recorder of Deeds. The agreement is biding upon the original parties, their heirs, and subsequent landowners.
Herbold said Township Trustees are elected and are authorized by state law to decide partition fence controversies and render opinions that will be binding upon current and subsequent owners. The fence dispute resolution process includes the following four steps. Step One stats that the complaining landowner must make a written request to the adjacent landowner for the erection of the fence or to fix an existing fence. Step Two says if step one yields no resolution, the complaining landowner must make a formal request to the Township Trustees to resolve the dispute. In step three, the Trustees must give five days written notice of a public hearing to all adjoining landowners that are liable for the erection or maintenance of the partition fence. Step Four requires the fence viewers to meet and issue a written order that allocates responsibility for maintenance or erection of the partition fence. Herbold said most often the public hearing meetings take place on site, where the fence is located. Herbold emphasized that no member of the public shall be barred from a Township Trustee fence viewing.
Herbold said the fence viewers are to divide responsibility equally for building and maintaining the partition fences regardless of which party gains primary benefit from the fence construction. The decision of the fence viewers is binding. However, a landowner can appeal to the local district court by filing a notice of appeal within 20 days after the fence viewers' decision. Herbold said they also have to file an appeal bond. Many people don’t appeal because the bond can be expensive and also, many people are unaware of the 20 day requirement.
Herbold said absent an appeal, the landowners have to construct or maintain their assigned portion of the fence as decided by the fence viewers. If one party fails to comply the disaffected landowners can request that the fence viewers build or maintain the fence. She said the parties requesting the work have to pay a deposit to cover the expenses and will be reimbursed upon collection from the defaulting party. The Trustees are in charge of collecting that money. If payment is not made by the other party, then that amount will be assessed as property taxes on the disputed property.
Herbold said Iowa law generally requires the erection of a legal fence. Most commonly, a legal fence has three barbed wires and rails and boards. She said if the landowner has livestock, they may be required to build a tight fence. A tight fence is a fence with woven wires in the partition fence. Herbold said Iowa is a common-law, fence-in jurisdiction state therefore farmers are required to fence in their livestock.
However, the State Legislature said that Iowa is a conditional fence-out state and this statute is under review. Currently, if an animal escapes as a consequence of negligent fence maintenance, the neighboring landowner will not be able to recover damages to their property by the trespassing animal. This places the duty on the non-livestock owner to maintain their portion and in turn, it limits the overall reach of the fence-in theory. Herbold said livestock owners must fence and control animals under their care. An owner is liable for the damages caused by their trespassing animals if the trespass is caused by the owner’s negligence, and negligence is the standard. If livestock trespasses on adjacent property, that landowner may take possession of the trespassing livestock until the costs of the distraint are paid.
Herbold said an owner may be liable for damages to third parities. An example would be if a motorist suffers harm from trespassing animals. A livestock owner also has a duty of ordinary care to prevent injuries and is also liable to the extent that injuries were reasonably foreseeable. Ordinary care is defined as what a reasonable person would do. She said a reasonable person would go check the fences and make sure the animals aren’t going to get out onto public roadways. In a 2004 Iowa Supreme Court case, where a livestock owner failed to protect motorists from stray horses, the court ruled in favor of the common law statute which imposes the duty of reasonable care upon the livestock owners to restrain livestock.
Herbold said adjacent landowners may also be liable if a trespass results from negligent maintenance of a partition fence. If no legal duty to construct a fence exists the adjacent landowner will not incur liability. She said if both parties fail to maintain a fence resulting in a third party injury, that negligence question will be decided by a jury. In Iowa there is a comparable-fault statue so both parties could be liable. In a lease situation Iowa Courts have held that landlords bear no responsibility for damage caused by tenant’s livestock.
Herbold said habitual trespassing for livestock is a newly enacted Iowa Law, which is similar to the criminal three strikes rule. A habitual trespass occurs when livestock escape their enclosure three times in a 12 month period and trespass on to the same neighboring landowner or same public road each time. A formal complaint is required to document the trespassing dates and location for any action to be taken by authority. The local authority may enter a finding on whether a trespassing violation occurred. If trespassing has occurred, the disaffected neighboring landowner can make a written request of the livestock owner that they build a fence. Herbold said if the fence is not build within 30 days of the request, then the matter can be submitted to the fence viewers. This is a simple misdemeanor and will show up on Iowa Courts Online as a cattle trespasser. She said Township Trustees should contact herself or Finlayson with questions about trespass issues.
Herbold said if a fence has been improperly located, and has been treated as a boundary by the adjacent landowners, there is a strong interest in Iowa to allow the fence to remain. Iowa law recognizes this concern and allows a misplaced fence to continue to serve as the legal boundary irrespective of what any subsequent survey says. She said this is called Boundary by Acquiescence. In Iowa, once a fence has been utilized as the boundary for a period of 10 years, the fence can establish the boundary even though a later survey indicates the fence is not the appropriate boundary. A trustee asked if land changes ownership and there is a question of the boundary line, does the 10 year period start from when the land changed ownership or does it go back to when the fence was built. Herbold said basically the fence has to be treated as the boundary for 10 years and it doesn’t matter who lived there.
Herbold said a problem comes up when a person moves a fence for a period of a few months and then moves it back. That breaks the 10 year time line and these cases are complicated. Once a court determines that the fence has been treated as a boundary for 10 years, the fence becomes the true boundary. She said that is when the landowner would file a motion to quiet title to that parcel. Then the court will decide the true boundary.
Herbold said a similar concept to boundary by acquiescence is prescriptive easement. This type of easement can arise when the adjacent owners know where the true boundary is and they know that the existing fence is not on the line, but, continue to use the fence as a property line. She said in this situation, one adjacent landowner is actually allowing the other to use some of their property that they wouldn’t otherwise be able to use if the fence were in the correct location. The party benefiting from the misplaced fence can establish the easement in four ways: they have openly and notoriously possessed the land, they claim the property as their own stating that the fence was innocently and mistakenly erected in an incorrect location, and they have had continuous and exclusive use for the statutory period of 10 years.
Herbold said the constitutionality of requiring a landowner to erect and maintain a fence has been questioned in recent years. As society gets more urban, the validity of a fencing statue will likely be challenged more frequently. She said some states take the position that compelling a property owner that doesn’t own livestock to contribute to building or maintenance is unconstitutional. Herbold said the Iowa Supreme Court has held that it is constitutional. In 1995, an urban resident complained that requiring contribution for a fence that provided him no benefit was unconstitutional. She said the Court disagreed stating that Iowa is an Agriculture state and that the burden on the non-livestock owner was minimal. Herbold said good fences make good neighbors and urged landowners to avoid disputes by maintaining communication with neighbors and by securing written agreements.
A trustee asked Herbold if he has livestock and the neighbor doesn’t, does the neighbor still have to provide for half the fence. Herbold said yes. The trustee asked why the U.S. Government does not have to build their half of the fence on the Coralville Reservoir. The trustee said that between 1975 and 1980, the government deiced they weren’t going to maintain fences anymore, and the farmers then had to maintain the total fence. No one has pushed the issue since then because of the costs involved in taking it to court. Lyness said it might be that the Federal Government says the State can’t force them to do anything.
The trustee asked if the County Parks departments pay for their part of the fence. Herbold said they should pay for half of their fence, and they probably do. Another trustee asked if that applies to cemeteries also. Herbold said that as Township Trustees, they need to pay for half of their fences as well, but said she needed to research this further. She asked the trustee to discuss this with her during the meeting break. Another trustee asked if two property owners share a fence with a lot of trees on one property, is the property owner with the trees required to cut the trees if the other property owner wants to erect a new fence. Herbold said they should try to work that out amongst themselves but recommended if the trees overhang on the side of the property owner wishing to build a new fence, then the adjacent property owner probably should cut the trees.
A trustee asked if there is a minimum distance that they are entitled to in order to be able to maintain a fence, and if there are trees in the fence row, they should therefore be taken down. Herbold said if they are right in the fence row they need to be taken down. The trustee asked for clarification on fence line division laws as they pertain to property subdivisions. Herbold said that person would not be governed by any subdivision laws. If there are three different land owners they need an agreement, so they should all sit down together to draft a written agreement. Herbold said a written agreement is recorded, and it runs with the land. Sullivan asked if they could have an agreement with a homeowners association as opposed to individual property owners. Herbold thinks individual land owners should have an agreement with the homeowners association that they would take care of the fencing. So there would be two layers of agreements and they would need to be in writing.
Herbold said as Township Trustees, they should try to do the fair thing for those parties. A trustee said that as fence viewers, they decide if someone has to pay for a fence, and if the landowner doesn’t want to pay, the charge is assessed against their taxes. When will the person paying for the fence get their money back, especially if the owner doesn’t' sell the property for years. Herbold said they would get into a legal process if there are taxes assessed against the property. Finlayson said it is a special assessment tax so it is not taxed the same as general property taxes. The trustee asked if the money would be reimbursed within a few years and Lyness said yes, unless the person is not paying taxes.
A trustee said his understanding is that in Johnson County, anytime property is subdivided to under 40 acres, the person subdividing has to pay for the entire fence. Herbold said across the state the landowner will be responsible for the fence. The trustee said Section 9 of the Subdivision Fencing Requirements says otherwise. Herbold said it is allowable for a County to enact stricter regulations than State law. The trustee said that is why he asked earlier about the 40 acres because he didn’t know if that was considered a subdivision.
Kistler said if they are conveying a 40 acre tract and the east half of a 40 acre tract, that that is not a subdivision. The trustee said they are not going to be able to fairly assess the separation of the fences because the fence might not all be in the same condition. He said if a person sells property with their portion of the fence in disrepair, then the remaining neighbor is going to have to invest more in the fence to repair it. Lyness said not if they have a written fence agreement which is recorded before it is sold. That way, the new land owner knows in advance that the fence repair is their responsibility.
Recessed at 10:36 a.m.; reconvened at 11:00 a.m.
Olsen said Iowa Code gives Township Trustees broad authority to do what is necessary to operate and maintain cemeteries under their purview. Trustees have broad authority to maintain and operate cemeteries. Township Trustees responsibilities for cemeteries include the sale of lots and acceptance of gifts for public purposes. They are also to maintain, enclose, improve, and adorn the grounds. Trustees are to construct avenues and buildings, and prescribe rules and prohibit improper use of cemeteries. They also survey, plat, and lay out into lots the land used as a cemetery. He said the Clerk shall convey lots by deed to the proper owner and make records of those transactions. Olsen said Trustees can appoint cemetery trustees other than themselves, to operate the cemetery. He said they may sell a cemetery to another entity for cemetery services, and they may purchase or condemn land for cemetery use and pay for it out the General Fund or a specific fund.
Olsen said a Township shall levy any tax necessary for the new land or for the maintenance and support of cemeteries within the township. Townships may maintain a non-owned cemetery of general public use and levy a tax of up to $.06 per $1,000 of taxable property value. In certain situations, a Township may levy a tax for the maintenance and support of a cemetery in adjoining counties, townships, or cities.
Olsen said a County board of supervisors may adopt an ordinance assuming jurisdiction and control of pioneer cemeteries in the county. A County board of supervisors may create a cemetery commission to assume jurisdiction and management of pioneer cemeteries. He said the cost of management, repair, and maintenance of pioneer cemeteries shall be paid from the County General Fund. Many counties don’t take on pioneer cemeteries because they are unsure of the financial responsibilities.
Olsen said a pioneer cemetery is currently defined as one where there have not been six burials in the last 50 years. In 2009, the new definition is one where there have been 12 burials in the last 50 years. Herbold said they haven’t had many questions on adverse possession of cemeteries but the courts have gotten much stricter on the use of adverse possession lately. A trustee from Penn Township said they have one pioneer cemetery that was deeded to the Board of Trustees originally. The City of Coralville currently has proposed to annex the property on which the cemetery is located. The Trustees are getting rather anxious about this because the people in North Liberty really want to maintain the cemetery.
Oster said when talking to those who provide emergency services to Townships, they should establish a model goal. Oster said an example of a model goal would be that within the community context service providers will work together to provide the best emergency services for the citizens. He defined community as residents in the township and the cities which fall within the geographical boundaries of the township. Community also includes visitors. Within emergency services they have to consider a broader population than just the township residents.
Oster said every Township is required to provide fire protection and may provide EMS services. There is no specific requirement to provide EMS, rescue, hazardous material spill response, confined space rescue, ambulance services, or any other service. These services are provided to protect the citizens because that is the right thing to do. To determine whether a Township will provide additional services, trustees should consider time and cost commitments as well as the area's ability to recruit volunteers. Oster said the Township Trustees determine what the boundaries will be for the various emergency services. Fire protection and emergency services for cities are determined by the corporate limits. Oster said the only exception is if there is a benefited fire district, which he said he will discuss later. He said there are only 55 in the State.
Oster said the focus for emergency services is local. Local citizens determine almost all requirements, standards, and financing. There is very little State financing and almost no County or Federal financing. He said 99% of emergency services are funded at the Township and City level. Oster said Johnson County governmental entities have a long tradition of successful collaboration, which is the key to providing the best services.
Oster said there are various ways to meet EMS requirements. A city may pass an ordinance that establishes an emergency services, fire department, or emergency medical services. Townships can do the same. The Township could also form a 28E Agency, which will be discussed later.
Oster said they could contract with another city or township for services. They could provide services through a non-profit or a for-profit corporation. He said they could also meet requirements through a benefited fire district or a benefited EMS district. Finally, the County Board of Supervisors may assume the role of the Township, with regard to emergency services. Oster said cities and townships may establish emergency services departments, fire, and EMS departments. A city does that through an ordinance, and a township passes a resolution. He said which ever government entity that has established the department is responsible for it. In about 90% of Iowa cities, the City has established a fire department or an EMS department, and the Township Trustees get fire protection from the City.
Oster said 28E of the Iowa Code, Joint Exercise of Powers, outlines how to share service. The Code allows joint provision of services through agencies, contract, and agreement. He said two or more government entities create a new government entity called a 28E Agency. The City or Township does not operate the fire department, the agency does. The downside of agencies is they have no taxing authority.
Oster said most townships receive their emergency services through contracts. Oster said establishing an advisory board is important if they are operating and receiving services from another entity. The advisory board would include Township Trustees, members of the city council, and the fire chief.
Oster said 28E agreements are agreements among entities to assist one another through mutual aid but money is rarely exchanged. This is very important to Township Trustees because rural areas get the most mutual aid. Oster encouraged the Trustees to review the Johnson County Mutual Aid Agreement.
Oster said contracts and agreements have to be in writing and include the following items: purposes, services provided, financing, duration, renewal/cancellation, and indicate if an advisory board is established. The contracts and agreements must be filed with the County Recorder and Secretary of State.
Oster said Townships could form a profit corporation or a non profit corporation to provide emergency services. The corporation's board of directors would contract for emergency services between cities and townships. Oster said benefited fire districts are like school districts, they are special taxing districts established for providing specific service. They are provided irrespective of city, township, and county boundaries. He said they are provided by a vote of the citizens and have taxing authority. This is better than a 28E agency because the benefited district can tax for services provided.
Oster said when the State law changed in 1975 requiring Townships to provide fire protection, the State Legislature disallowed new benefited fire districts. A trustee asked Oster who controls the taxing in a benefited district. Oster said an elected board, just the same as a school board operates. One final method for providing EMS is through County Assumption. In 2000, the State Legislature changed the law to state that county boards of supervisors may assume the responsibility for fire protection in a given township. He said it was intended to be used in cases where Township Trustees were not doing their duties or not paying for the fire protection services that they were receiving.
Oster said there is usually no legal foundation for Rural Fire Boards to exist, their accountability is questionable, and they don’t track funds either. He said liability protection is doubtful and there is little support for conflict resolution. If Rural Fire Boards exist, the best practice is to either disband or legalize them, or establish them as advisory.
Oster said besides being official government bodies, most fire and EMS departments provide civic and social activities to their members and community. It is important that revenue from social activities be separate from legal activities. He said the money generated by the fire fighters and EMS must be kept separate from the official tax money. To manage this money, Oster said the State Auditor’s Office recommends establishing a no- profit corporation for the fire fighters to manage the private funds. This is also a way to promote the department and raise funds to fill in the tax gap. He said these non profit corporations can apply for grants not available to government entities. They can also file for tax exempt status with Internal Revenue Services.
Oster said when taxing for emergency services, Townships and Cities have different limits. Townships can tax up to $.0675/$1,000 of assessed value. Cities may tax up to $8.10 for all services without allocating specific amounts to various City services. Often there are conflicts between Townships and Cities because of the taxing methods. He offered the following cost sharing formula to aid government entities in determining a fair cost share contribution between the two: assessed value of real estate, plus annual average of total calls received, plus the population divided by three. He cautioned that in split townships, the factors should be proportioned.
Stutsman left at 11:59 a.m.
Kistler said the Auditor's Office frequently gets calls from Trustees and Clerks working on a fire contract and they need the numbers for the assessed valuations. Kistler asked if they should use the taxable valuation or the 100% valuation. Oster said the best way to do it is to use 100% of the assessed value because they are trying to determine how much property is protected in each entity.
Olson handed out the evaluation forms and asked members to fill out the evaluation during the question and answer session.
A trustee asked about a comment made during the discussion on cemeteries, he said he thought an Iowa Court ruled that it was illegal for the State to issue a deed for a cemetery. He said the concern was over the space in the cemetery. Olsen asked the trustee for his name and contact information so someone could research that question and reply at a later time. Herbold provided the following website for further information: www.calt.iastate.edu. She said if anyone wishes to contact her at the office they may call 515-294-6365 or send an email to eherbold@iastate.edu. Neuzil asked if this presentation is going to be on the web page. Olsen said yes, and the intent is to make short sections on each of the topics that were presented. The program will be on the Iowa State Extension web site as well as on www.calt.iastate.edu. Olsen said they are working on an update to the booklet as well. Olsen reminded the group that the Auditor's Office and County Attorney's Office are great resources in addition to Iowa State Extension.
Adjourned at 12:10 a.m.
By Nancy Tomkovicz, Recording Secretary