City officials concede Initiative and Referendum is legal in Iowa

Dec. 5—OSKALOOSA — After seven months of arguing to the contrary, Oskaloosa city officials have acknowledged that Initiative and Referendum is legal under Iowa law.

The discussion occurred at the Oskaloosa City Council's regular meeting Monday night, where City Attorney David Dixon explained to council how Initiative and Referendum functions as a part of the city's charter. Dixon's presentation marked the first time that Oskaloosa officials have conceded to the legality of Initiative and Referendum as a form of government in Iowa.

Initiative and Referendum is a form of direct democracy that allows citizens the right to propose, amend or repeal city ordinances through city elections. Voters can propose new ordinances or require reconsideration of an ordinance passed by city council by petition.

The city council unanimously voted to remove Initiative and Referendum from the city charter in May, citing court cases "City of Clinton v. Sheridan" and "Berent v. City of Iowa City" from the 1990s, which debated the legality of initiative and referendum, as reasons to remove it. They also amended section 7.2 — which previously allowed for changes to the charter to be made by an amendment in an election, an ordinance or petition — so that it would only allow for changes to be made "only as provided by law."

At the time of the court cases, the Iowa Attorney General argued in "City of Clinton v. Sheridan" that a charter provision authorizing initiative and referendum is inconsistent with state law, therefore the commissioner of elections, or county auditor, had the authority to refuse an election spurred by initiative and referendum.

However, the Iowa Supreme Court later ruled that Initiative and Referendum is a legitimate form of local government under Iowa Code 372.

The council's initial effort to remove Initiative and Referendum from the city's charter came in May, after Oskaloosa resident Alicia Helm attempted to exercise the right by submitting a proposed ordinance to bar the city from constructing a new airport without first submitting the issue to a vote in a city election. The proposed ordinance also would require that the city withdraw from the South Central Regional Airport Agency and sell any property it owns related to SCRAA to the highest bidder. In an unrelated matter, the ordinance would also call for A Avenue/Highway 92 and Market Street/Highway 63 to be converted back to four lanes.

Helm also submitted a proposed charter amendment that would repeal several limitations that Article VI of the city's charter currently applies to the use of Initiative and Referendum in Oskaloosa. The repeals would have included the restrictions pertaining to measures of an executive or administrative nature, the city's budget, or any measures that would interfere with the city's contractual relations in the past, present or future.

At the time, Krutzfeldt said that city officials began wondering if Initiative and Referendum was "even legal."

Dustin Hite provided legal advice to the council.

"I've not had a chance to look into it a great deal," Hite said back in May. "I think there's some court cases that date back like 100-plus years that are saying, certainly on certain issues, with initiatives and referendums, they are not allowed ... I represent about 10 other cities, nothing as big as Oskaloosa. I have never seen a referendum initiative in a city charter elsewhere. Not saying it doesn't exist, but I've never seen it."

Iowa City is one prominent example of a city in Iowa that includes the right to Initiative and Referendum in its charter.

Following the council's May decision to remove Initiative and Referendum from the city's charter, Helm submitted a petition to the city in June under Iowa Code section 372.11, which required the city to put their charter amendment to a citywide vote through a ballot question in this November's election. At the time of the election, concerns were raised about the clarity of the ballot question's language, which stated that the modifications to the charter were being made "to comply with Iowa law and [make] conforming changes."

There were a few minor issues with Oskaloosa's specific regulations applying to Initiative and Referendum, but concerns were being raised regarding whether or not the ballot language implied that Initiative and Referendum itself was illegal.

Mayor David Krutzfeldt said that Helm's proposal to repeal the limitations in Article VI is particularly what caught the city's attention, and that to avoid confusion and keep things simple, the city decided to simply "revert back to [the] state," and instead of writing their own ordinance, use the language of "in accordance with state code."

In the days leading up to the vote, Mahaska County Attorney Andrew Ritland went on record stating that Initiative and Referendum is legal in Iowa.

"The question that I have kind of been asked recently is regarding the question on the ballot, whether it is proper for the City of Oskaloosa to have initiative and referendum at all," Ritland said in November. "It's my opinion, and I can cite the [Iowa] Supreme Court cases, that it is. You can have that process."

Ultimately, Oskaloosa residents voted to keep the right to Initiative and Referendum by a margin of more than 200 votes.

On Monday night Dixon, after walking through a brief history of home rule charters in Iowa, definitively stated that Initiative and Referendum is a legitimate mechanism for citizens to petition their government.

"One of the things that you can have in a home rule charter form of government is referendum and initiative, which was adopted and placed in the city code," he said.

Dixon went on to emphasize the restrictions to the right that are laid out in Article VI, saying that Initiative and Referendum does not mean that a special election can be called on "everything the council chooses to do."

"I think, essentially, what you're saying, Dave, is Initiative and Referendum is not a blank check to the citizenry to legislate by public referendum," said Councilman Charlie Comfort.

"So certainly, an agreement the city has with another entity is not something that's likely to be put to a vote of the people, like a 28E agreement," Comfort added.

Article VI of the city's charter specifically excludes contractual agreements from being affected by Initiative and Referendum.

In other news:

— Oskaloosa Community School Dictrict Resource Officer Logan Nord was honored as Oskaloosa's 2023 Police Officer of the Year.

— Grant Vroegh, Julie Dunne-McKee, Garrett Matson, Cheryl Eklofe, Keith Brooks and Mark Tennison were given longevity awards for their years of service as Oskaloosa employees.

Associate Editor Emily Hawk contributed to this report.

Channing Rucks can be reached at crucks@oskyherald.com.