Fate of initiative and referendum in the hands of Osky voters

Nov. 3—OSKALOOSA — On Tuesday, Oskaloosa residents will decide whether to keep or remove a form of direct democracy in the city's charter that allows them to propose, amend or repeal city ordinances by submitting them to voters in an election.

Ordinance 1459 is on the ballot this year, which asks voters if they would like to adopt an ordinance that will amend Oskaloosa's city charter by removing Article VI, or initiative and referendum, and modify section 7.2 "to comply with Iowa law and [make] conforming changes."

A "no" vote on the ballot proposition would support keeping the charter as-is, while a "yes" vote would support the removal of initiative and referendum from the charter, a form of government that gives citizens' the ability to propose, amend or repeal city ordinances.

While the ballot question implies initiative and referendum is illegal, citizens have questioned whether that's the case. The nonpartisan Iowa Legislative Services Agency has asserted the practice is legal under Iowa law. The ballot proposition also does not define Article VI, or provide what changes will be made to Section 7.2.

Oskaloosa City Manager Amal Eltahir did not return a Thursday voicemail from The Herald seeking additional information before publication of this story.

Initiative and referendum, adopted by the city's home rule charter in 1992, gives 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.

Oskaloosa's 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.

The Iowa Supreme Court later ruled that initiative and referendum are a legitimate form of local government under Iowa Code 372.

"The [Iowa Supreme] Court deduced that this argument for preemption of local election law provisions is a case of the tail wagging the dog because the argument, in effect, advocates that a constitutional provision, the municipal home rule amendment, can be overridden and its effect negated by statutory omission of the procedure to implement the provision," wrote Susan Crowley, former senior legal counsel with the Iowa Legislative Services Agency, who authored a legislative guide for local government initiative and referendum.

"In accordance with the Iowa Supreme Court history, cities, by means of a home rule charter authorized in Iowa Code section 372.3, may grant to their citizens initiative and referendum power," she added.

Shortly after the Oskaloosa City Council voted on an ordinance to remove initiative and referendum and make changes to section 7.2 to its city charter, an Oskaloosa resident garnered enough signatures to repeal this decision through the very charter the council voted to remove — initiative and referendum.

In June, resident Alicia Helm presented the petition with 209 signatures to the city council. Iowa Code 362.4 says a petition is valid if it acquires signatures equal to 10% of eligible voters in the last city election and is filed within 30 days of the ordinance's publication. Based on the number of voters in the 2021 city election (1,348, according to the Mahaska County Auditor's Office), the petition needed roughly 135 signatures for consideration.

Oskaloosa's current city charter seems to be in conflict with the state's guide to city and referendum in Iowa Code section 362.4.

Section 6.3 in Oskaloosa's city charter requires petitions to have signatures from 25% of the number of voters who participated in the last city election, more than the 10% requirement imposed by state law for a public measure to be placed on the ballot through initiative and referendum. The city charter also says the number of required signatures must be obtained within 60 days after the ordinance in question is adopted by city council; state code requires 30 days.

Joe Simpson, legislative legal counsel with the Iowa Legislative Services Agency, said that if a "yes" vote would amend section 7.2 like the city council originally voted to do so in May to allow for changes to be made "only as provided by law," this section would then comply with Iowa Code 372.11. However, the ballot language remains unclear.

"Essentially, their amendment to section 7.2 in the charter, which is 'this charter may only be amended as provided by Iowa law,' that would just go to Iowa Code section 372.11," he said. "The last two options (in Iowa Code 372.11) would then go back to section 362.4, which is where the 10% requirement is."

Cities like Oskaloosa that have adopted a home rule charter for its citizens to legally utilize initiative and referendum still have limitations on what kind of subject matter can be initiated, changed or rejected in city ordinance.

Section 6.1 in the city charter states that initiative and referendum cannot be used for the city budget, appropriation of money, issuing general obligation bonds, city employee and official compensation, city zoning ordinances, any measure involving annexation and any measure "which will interfere in any way with any contractual relations of the City, past, present or future," among others.

Oskaloosa City Council voted to amend the city's charter after Helm attempted to exercise initiative and referendum by submitting a proposed ordinance to bar the city from constructing the proposed South Central Regional Airport without first submitting the issue to a vote in a city election. Helm's proposed ordinance would also require the city to withdraw from the South Central Regional Airport Agency, or SCRAA, and sell any property it owns related to SCRAA.

In an unrelated manner, her ordinance would also call for A Avenue/Highway 92 and Market Street/Highway 63 to be converted back to four lanes.

Emily Hawk is the associate editor of the Ottumwa Courier and the Oskaloosa Herald. She can be reached at ehawk@oskyherald.com.