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The Honorable R. Kurt Swaim

Office of the Attorney GeneralJanuary 21, 1988

1988 Iowa Op. Atty. Gen. 67 (Iowa A.G.), 1988 WL 247760
Office of the Attorney General
State of Iowa
*1 Opinion No. 88-1-9(L)
*1 January 21, 1988

MUNICIPALITIES; Library Board of Trustees; Charge. Iowa Code § 392.5 (1987); Iowa Code § 378.10 (1971); 1972 Iowa Acts, ch. 1088, §§ 196 and 199. A restriction on a library board of trustee's authority to set the compensation of library personnel in an ordinance which previously granted exclusive control over expenditures and compensation to the library board would constitute an alteration of the “charge of a library board,” as used in § 392.5, and would be void absent approval by referendum. A county attorney does not have a duty to react to an invalid municipal ordinance. (Walding to Swaim, Davis County Attorney, 1-21-88)

 
*1 The Honorable R. Kurt Swaim
*1 Davis County Attorney
*1 Bloomfield, Iowa 52537
Dear Mr. Swaim:
*1 We are in receipt of your request for an opinion of the Attorney General regarding a proposed ordinance of the Bloomfield, Iowa, city council.1 Specifically, you have posed the following questions:
*1 1) Whether [Bloomfield Ordinance No. 464] alters the charge of the Library Board in violation of Iowa Code Section 392.5 in the absence of approval by the City voters? and
*1 2) If the answer to the preceding question is in the affirmative, do I, as County Attorney, have any duty or responsibility to take any action in respect thereto?
*1 Iowa Code § 392.5 (1987) provides, in relevant part, that:
*1 A proposal to alter the composition, manner of selection, or charge of a library board, or to replace it with an alternative form of administrative agency, is subject to the approval of the voters of the city.
* * *
*1 If a majority of those voting approves the proposal, the city may proceed as proposed.
* * *
*1 [Emphasis added.]
*1 The first question we will consider then is whether a referendum issue is posed by Bloomfield Ordinance No. 464 as a proposal to alter the “charge of the library board.” There is no dispute about the substance of the amendment; rather, what is in contention is the procedural issue as to how to effectuate the change: whether by simple adoption of an ordinance by the city council, or by approval of a majority of the city voters at an election.
*1 The narrower issue, however, is whether a restriction on a library board in the fixing of the compensation of the librarian, assistant and employees requiring the board to comply with the personnel policies and rules and regulations adopted by the city council for municipal employees constitutes an alteration in the “charge of the library board”. A conclusion that the ordinance does alter the charge of the library board would render the adopted amendment void absent approval by referendum. Conversely, a ruling that the amendment does not alter the charge of the library board makes sufficient the city council's adoption of the ordinance.
*1 It is our opinion that a proposal to alter the “charge of a library board,” as used in § 392.5 and subjecting the proposal to a referendum, would include a proposal which significantly changes the relationship between a city council and a library board of trustees. A proposal which realigns and redistributes administrative control of a public library between a city council and a library board clearly falls within the ambit of that statutory language.
*2 Applying that standard to the present case, it is our judgment that a restriction on a library board's authority to set the compensation of library personnel in an ordinance which previously granted exclusive control over expenditures and compensation to the library board would constitute an alteration of the “charge of a library board.” As such, the proposal to alter Bloomfield Municipal Code § 2.37.040(D) was improperly effected by adoption of the ordinance by the city council. The ordinance, absent approval by referendum, would be void.2
*2 An examination of the Bloomfield Municipal Code governing the library board of trustees, Bloomfield Municipal Code Chapter 2.37, reveals that the contested ordinance, Bloomfield Ordinance No. 464, constitutes a significant realignment and redistribution of administrative control of the municipal library between the city council and the library board.
*2 Initially, it is observed that paragraph D of § 2.37.050 of the municipal code (titled “Powers and Duties”), prior to adoption of the ordinance amending that paragraph, granted the library board the unrestricted authority to establish the compensation of the library personnel. Similarly, paragraphs D and E grant the library board control of the library's employment including the power of removal. Further, the library board is granted in paragraph I of § 2.37.050 “exclusive control of the expenditure of all funds allocated for library purposes by the council,” as well as funds from other sources. In addition, paragraph C of § 2.37.050 grants the library board authority “to direct and control all of the affairs of the library.”
*2 Together, these provisions evince a clear intent to establish an autonomous board charged with the administration of the public library free of any direct intervention or control by the city council. In fact, the city council's role in the operation of the library is limited to the appropriation process.
*2 The relationship between the city council and the library board is significantly altered by the contested restriction on compensation and employee benefits because the ordinance transfers, in part, control of compensation of library personnel. The restriction, in effect, diminishes the library board's exclusive control over expenditures and compensation to the advantage of the city council.
*2 The significance of the realignment and redistribution of the administrative authority to set the compensation of the library personnel is further bolstered by a review of the legislative history of § 392.5. Section 392.5, which became effective on July 1, 1972, was one of the sections added with the adoption of the Home Rule amendment. See 1972 Iowa Acts, ch. 1088, § 196. Unnumbered paragraph 2 of § 392.5 provides:
*2 In order for the [library] board to function in the same manner the council shall retain all applicable ordinances, and shall adopt as ordinances all applicable state statutes repealed by 64GA, chapter 1088.
*3 That paragraph, in an apparent reference to former Iowa Code ch. 378 which governed public libraries before Home Rule and was repealed by Home Rule, 1972 Iowa Acts, ch. 1088, § 199, required cities to preserve the provisions of chapter 378.
*3 The provisions of former Iowa Code § 378.10 (1971), which the City of Bloomfield apparently preserved when it enacted Bloomfield Municipal Code § 2.47.050, granted library boards of trustees exclusive control over the library expenditures and compensation. Thus, library boards were vested exclusive authority to set compensation of library personnel by the legislature and, through § 392.5, unnumbered paragraph 2, that vested power was intended to be preserved. Accordingly, an erosion of that authority would be contrary to legislative intent and, at the least, was perceived by the legislature to be a significant realignment or redistribution of administrative control of public libraries.
*3 Your second question, posed by the determination that the contested ordinance is invalid, concerns the duty of a county attorney to react to a void municipal ordinance. A review of the duties of a county attorney enumerated in Iowa Code § 331.756 (1987) does not include reviewing city legislation. Accordingly, it is our judgment that a county attorney does not have a duty to react to an invalid city ordinance.
*3 In summary, a restriction on a library board of trustee's authority to set the compensation of library personnel in an ordinance which previously granted exclusive control over expenditures and compensation to the library board would constitute an alteration of the “charge of a library board,” as used in § 392.5, and would be void absent approval by referendum. A county attorney does not have a duty to react to an invalid municipal ordinance.
Sincerely,
*3 Lynn M. Walding
*3 Assistant Attorney General

Footnotes

The former Bloomfield city attorney informs us that the ordinance, Bloomfield Ordinance No. 464, with his advice, was adopted on June 15, 1987 by the city council without a referendum, and has been in effect since publication on June 24, 1987. That ordinance amends Bloomfield Municipal Code § 2.37.050(D). Section 2.37.050, in pertinent part, now reads:
Powers and Duties. The board [of trustees of the Bloomfield Public Library] shall have and exercise the following powers and duties:
D. To employ a librarian, and authorize the librarian to employ such assistants and employees as may be necessary for the proper management of the library, and fix their compensation; provided, however, that prior to such employment, the compensation of the librarian, assistants and employees shall have been fixed and approved by a majority of the members of the board voting in favor thereof. And further provided that in the fixing of such compensation and/or benefits, said Library Board shall comply with the personnel policies and rules and regulations adopted by the City Council for all city employees. For said purpose library employees shall be considered city employees.
[Amendment in emphasis.]
According to McQuillin:
Substantial compliance with requisite procedure in enactment of an ordinance is prerequisite to its validity, and no ordinance is valid unless and until mandatory prerequisites to its enactment and promulgation are substantially observed. [Footnote omitted].
5 McQuillin, Municipal Corporations, § 16.10 (1980). Further, McQuillin states:
It is a general rule that an ordinance is void where it is passed without authority therefor [sic], or without compliance with statutory requirement....
An invalid or illegal ordinance is wholly inoperative. [Footnotes omitted].
6 McQuillin, Municipal Corporations, § 20.01 (1980). Thus, Bloomfield Ordinance No. 464, amending Bloomfield Municipal Code, § 2.37.050(D), is invalid because it was adopted without subjecting the proposal to a referendum.
1988 Iowa Op. Atty. Gen. 67 (Iowa A.G.), 1988 WL 247760
End of Document