IN THE IOWA DISTRICT COURT FOR LINN COUNTY JOEL MILLER, LINN COUNTY No. EQCV OLR 4 SF AUDITOR, Plaintiff, vs. LINN COUNTY, LU BARRON, MANDAMUS OR CERTIORARI LINDA LANGSTON, BEN ROGERS, BRENT OLESON AND JAMES M. ) ) ) ) BOARD OF SUPERVISORS OF ) PETITION FOR WRIT OF ) ) ) HOUSER, ) ) ) Defendants. COMES NOW Plaintiff Joe! Miller, the duly elected, qualified and acting ‘Auditor for Linn County, and petitions for a Writ of Mandamus, or in the alternative, a Writ of Certiorari, against the Defendant Linn County Board of Supervisors, and states as follows: GENERAL ALLEGATIONS 1. Joe! Miller is the duly elected, qualified and acting Auditor for Linn County. 2. The office of County Auditor exists pursuant to lowa Code Chapter 331, County Home Rule Implementation, and specifically Sections 331.01 et seq. 3, Lu Barron, Linda Langston, Ben Rogers, Brent Oleson and James M. Houser are the duly elected, qualified and acting Supervisors of Linn County,4, The Linn County Board of Supervisors exists under the authority of lowa Code Chapter 331 and has such powers and duties as are set forth in that Chapter. 5. The Board of Supervisors has the power to establish the number of deputies for county officers, including the County Auditor, under lowa Code Section 331.323(2)(9). 6. Pursuant to that authority, on or about February 27, 2008, the Board established four as the number of Deputy Auditors. 7. The Auditor has the power under lowa Code Section 331.503(2) to appoint and remove deputies subject to the provisions of lowa Code Section 331,903(1), which provides that the appointment of deputies be with the approval of the Board 8 The Board's approval authority under Section 331.903(1) is limited, and the Board cannot refuse to approve an appointment unless the appointee is not qualified on statutory grounds. 9, The Auditor has the authority under lowa Code Section 331.503(2) to employ temporary assistants if a Deputy Auditor is not appointed and the requirements of office require the temporary employment of assistants. 10. _ lowa Code Section 331.503(2) further requires that upon the employment of a temporary assistant, the Auditor shall file a bill for the services with the Board at its next meeting, and the Board “Shall” allow reasonable compensation for the temporary appointee.14. On December 14, 2009, the Auditor, acting under the authority granted by Section 331.503(2), removed one of the four authorized deputies, 12. On January 18, 2010, the Auditor appointed Karen Heiderscheit to the open deputy position. 13. The purpose of the December 14, 2009 removal, and January 18, 2010 appointment, was to fill one of the deputy positions with an individual who was qualified to conduct audits of county expenditures, as the Auditor believes it is appropriate in his duty to oversee the stewardship of public funds that a process of routine and random audits of county expenditures be conducted 14. Contrary to its duty, the Board refused to approve the appointment of Karen Heiderscheit as Deputy 15. Based upon the failure of the Board to approve the appointment of Karen Heiderscheit, and believing that requirements of the Auditor's office required the temporary employment of an assistant to fill the position, the Auditor then appointed Karen Heiderscheit as a temporary Deputy based on the Auditor's authority under lowa Code Section 331.503(2), and pursuant to that subsection, filed a bill for services with the Board on February 3, 2010. 16. Contrary to the duty imposed by subsection 331.503(2), which requires the Board allow reasonable compensation for temporary appointees, the Board refused to approve the bill for services. 17. On January 25, 2010, the Board, by motion, reduced the number of Deputy Auditors from four to three.18. The reduction in the number of Deputy Auditors was not a proper exercise of the Board’s power under lowa Code Section 331.323(2)(g), but rather was done for the purpose of preventing the Auditor from appointing a deputy, or compensating a temporary deputy, and was an unlawful attempt to interfere with the statutory powers of the Auditor to appoint deputies. 19. The Auditor seeks judicial intervention to compel the Board to perform its statutory duties and protect the ability of the Auditor to make appointments of Deputies. 20. The Auditor believes that joinder of an action for Writ of Mandamus with a petition for Writ of Certiorari is appropriate, as lowa Code Section 661.5, recognizes mandamus may be sought as an auxiliary remedy, the prohibition against joinder in lowa Code Section 661.12 is limited to mandamus actions brought by private persons, and Chicago, Rock Island and Pacific R. Co. v. Liddle, 112 N.W.2d 852, 858 (lowa 1962), recognized joinder of certiorari, mandamus and declaratory judgment actions is appropriate in challenges to the actions of governmental entities. PETITION FOR WRIT OF MANDAMUS 21. The Auditor repleads the allegations of paragraphs 1 through 20. 22. Anaction of mandamus may be brought to obtain Orders to command a Board to do or not to do an act, the performance or omission of which the law enjoins as a duty resulting from an office, trust or station. 23. ‘The Board violated its duties in the following particulars:{a) failing to approve the appointment of Karen Heiderscheit to the position of Deputy Auditor; (b) refusing to approve the bill for services for Karen Heiderscheit as a temporary Deputy (c) taking action to reduce the number of Deputy Auditors from four to three for the purpose of interfering with the power of the Auditor to appoint Deputies and compensate temporary deputies. 24, The Auditor believes, and therefore alleges, that the three actions set forth above do not involve the exercise of discretion, and therefore, the Court should issue a Writ of Mandamus requiring the approval of the appointment of | Karen Heiderscheit as Deputy Auditor and/or requiring the approval of the bill for | services, and directing the Board to withdraw its action reducing the number of Deputy Auditors from four to three. 25. There is no other plain, speedy and adequate remedy in the ordinary course of law other than a Petition for the Writ of Mandamus, or, in the alternative, a Petition for Writ of Certiorari. | WHEREFORE, Plaintiff Joel Miller, as County Auditor, prays that the Court | issue a Writ of Mandamus, commanding Lu Barron, Linda Langston, Ben Rogers, Brent Oleson and James M. Houser as members of the Linn County Board of Supervisors, to perform their duties, and specifically directing the Board to approve the appointment of Karen Heiderscheit to the position of Deputy Auditor, and/or to approve the bill for services for Karen Heiderscheit as atemporary Deputy, and require the Board to withdraw its action reducing the number of Deputy Auditors from four to three, and for such other equitable relief as is appropriate in connection with such a writ, and for costs. PETITION FOR WRIT OF CERTIORARI 26. The Auditor repleads the allegations of paragraphs 1 through 20. 27. The Auditor believes, and therefore alleges, that the actions of the Board complained of do not involve the exercise of discretion 28. _ In the alternative, or in addition, if any of the actions complained of involve the exercise of discretion, the Auditor seeks a Writ of Certiorari to challenge the actions of the Board 29. Aparty may commence a certiorari action when a Board has acted illegally. 30. The Board has acted illegally in the following particulars: (a) failing to approve the appointment of Karen Heiderscheit to the position of Deputy Auditor; (b) refusing to approve the bill for services for Karen Heiderschelt as a temporary Deputy; (©) taking action to reduce the number of Deputy Auditors from four to three for the purpose of interfering with the power of the Auditor to appoint Deputies and compensate temporary deputies; 31. The Court should order the issuance of a Writ of Certiorari, requiring a return by the Board commanding the Board to certify to the Court, at aspecified time and place, the Board's records of its proceedings in connection with the submission to the Board by the Auditor of Karen Heiderscheit as appointment but for the position of Deputy Auditor, the submission of the bill for services of Karen Heiderscheit as a temporary Deputy Auditor, and the action of the Board in reducing the number of Deputy Auditors from four to three. 32. Upon the return of the Writ, the Court should hold a trial and upon said trial, sustain the Writ of Certiorari and enter judgment that the actions of the Board in failing to approve the appointment of Karen Heiderscheit as Deputy Auditor and/or failing to allow compensation upon submission of the bill for services, and in reducing the number of Deputy Auditors from four to three, are illegal, and for such other equitable relief as is appropriate in connection with a petition for Writ of Certiorari, and for costs, WHEREFORE, the Auditor prays that a Writ of Certiorari be issued commanding the Board to certify, at a specified time and place, the Board's records of its proceedings in connection with the submission to the Board by the ‘Auditor of Karen Heiderscheit as an appointment for the position of Deputy ‘Auditor, the submission of the bill for services of Karen Heiderscheit as temporary Deputy Auditor, and the action of the Board in reducing the number of Deputy Auditors from four to three, that the matter be set for trial, and that upon said trial, the Court sustain the Writ of Certiorari and enter judgment that the actions of the Board in failing to approve the appointment of Karen Heiderscheit as Deputy Auditor and/or failing to allow compensation on submission of the bill for services, and in reducing the number of Deputy Auditors from four to threeare illegal, and for such other equitable relief as is appropriate in connection with a petition for Writ of Certiorari, and for costs. TOM RILE M, P.L.C By, ‘ATO006611 4040 First Avenue NE P.O. Box 998 Cedar Rapids, IA 52406-0998 | Ph.: (319) 363-4040 Fax: (319) 363-9789 E-mail: peterr@trlf.com ATTORNEY FOR PLAINTIFF PCRIpd