LINN COUNTY ATTORNEY

935 2nd Street SW Cedar Rapids, IA 52404-2100

Civil Division

COUNTY ATTORNEY

Jerry Vander Sanden

FIRST ASSISTANT Nicholas G. Maybanks Office Manager Diane Albers DIVISION ATTORNEYS Felony Jason D. Besler Jason A. Burns Nicholas L. Scott Misdemeanor Heidi A. Carmer Brian D. Claney Laurie Craig Lisa M. Epp Matthew Kishinami Rena Nerhus Jordan N. Schier Elena Wolford Civil Jeffrey L. Clark Robert A. Hruska Gary P. Jarvis Christine CurleyParalegal Juvenile Rebecca Belcher William C. Croghan Lance J. Heeren Kelly Kaufman PROFESSIONAL SUPPORT Investigator James Noonan Victim/Witness Chris Adcock Anastasia Wilson

MEMORANDUM TO: CC: Board of Supervisors Steve Tucker, Finance Director Joel Miller, Linn County Auditor Darrin Gage, Director of Policy and Administration Gary P. Jarvis, Assistant Linn County Attorney September 20, 2013 Procurement Card Policy

FROM: DATE: RE:

Dear Board of Supervisors Members: I write in an effort to provide some structure which, I am hopeful, may contribute to resolution of a disagreement which has evolved into two parties talking past each other seemingly without conclusion. While I do not wish to put words in his mouth, I believe Auditor Miller is asserting that the Procurement Card Policy is violated where a Linn County official or employee attends an event otherwise eligible for payment by county funds at which some manner of alcoholic beverage is served and paid for by Linn County Procurement Card as part of the admission to the event. Though I have not spoken with each board member concerning this issue, I believe it is fair to state that the Boards position is in disagreement with Auditor Miller. The circumstances surrounding this disagreement involve the County Procurement Policy. However, the substantive decision reached in this case may have application to other policies, such as the Travel Policy or the Training and Educational Assistance Program Policy. As stated, my primary purpose is to suggest the appropriate context in which this issue can be addressed as opposed to asserting a substantive

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Civil Division: 319/892-6340 fax: 319/892-6346 Criminal Division: 319/892-6350 Juvenile Division: 319/892-6330 fax: 319/892-6339 fax: 319/892-6389

LINN COUNTY ATTORNEY

935 2nd Street SW Cedar Rapids, IA 52404-2100

Civil Division

resolution to the issue. A significant reason for this is this matter is not a legal question but one calling for a common sense and practical determination. First, as the governing body of Linn County, Iowa, the Board of Supervisors sets policy. In doing so, the Board of Supervisors has promulgated policies, including a Procurement Card Policy, OP-015. Section IVE.2.(b) provides that: 2. A procurement card shall not be used for: (b) Purchase of alcoholic beverages.

It is the interpretation of this provision about which this disagreement swirls. Again, the Board of Supervisors promulgated the Procurement Card Policy. Therefore, the Board is the ultimate arbiter of the meaning or interpretation of the policy provisions. While the Board has designated the county auditor as program administrator for the Procurement Card Policy, it is within the Boards purview to interpret its policy. It is the duty of the program administrator to carrying out the policy as interpreted by the Board. It is unfortunate that Auditor Miller has stated he may revoke a Linn County Procurement card as a result of the circumstances of this case. The implication is that he asserts the authority to do so even where the Board determines there has been no violation of the Procurement Card Policy. The Board has delegated to Auditor Miller the authority to function as program administrator for the Procurement Card Policy. It is his duty to administer the policy in accord with the Boards interpretation of same. If Auditor Miller believes he cannot or need not do so, his solution is to withdraw as program administrator of the Procurement Card Policy. Should Auditor Miller refuse to administer the policy in accord with the Boards interpretation of same, the Board may determine to remove him as program administrator and designate another Linn County official or employee as such. I recommend that the Board place this matter on its agenda to discuss and decide upon the appropriate interpretation of the aforementioned section of the Procurement Card Policy. Auditor Miller has stated his position on this
www.linncounty.org
Civil Division: 319/892-6340 fax: 319/892-6346 Criminal Division: 319/892-6350 Juvenile Division: 319/892-6330 fax: 319/892-6339 fax: 319/892-6389

LINN COUNTY ATTORNEY

935 2nd Street SW Cedar Rapids, IA 52404-2100

Civil Division

issue on several occasions, though not in the manner of informing the Board of a certain set of facts, recommending a certain outcome or interpretation of Board policy, and requesting that the Board resolve the matter by interpreting its policy. Auditor Miller may believe such an approach is a denigration of his position as County Auditor, but I respectfully submit it is not. I will briefly address the substance of the issue. As stated, the issue is not a legal question, but one of determining a common sense or practical interpretation of Section IVE.2.(b). Clearly, the policy is intended to prohibit using a Linn County Procurement Card to purchase a beer in a bar. The issue at hand is whether it is intended to apply, and if so in what manner, to the above-described circumstances of this case. Perhaps the operative questions are as follows: 1. Are Linn County officials and employees to be required to contact event sponsors and request that they go to the time and expense of calculating what portion of the admission, tuition, or fee went to pay for alcoholic beverages provided at the event?

I submit even calculating such a portion presents challenging accounting questions. 2. Should, as is likely, the event sponsor decline to expend its resources to attempt to separate out the portion of the event cost attributable to making available alcoholic beverages, are Linn County officials and employees, in effect, prohibited from attending such events, conventions, or seminars, however valuable, unless they do so at their own expense?

Again, it is within the Boards purview to interpret its policy. It is the Boards responsiblity to explain what action it intends to prohibit through Section IVE.2.(b). After drafting this memo, I was informed Supervisor Rogers has acted to put an end to the case at hand. However, if the Board does not resolve this issue, it leaves the organization without guidance in how to proceed in similar circumstances in the future.
www.linncounty.org
Civil Division: 319/892-6340 fax: 319/892-6346 Criminal Division: 319/892-6350 Juvenile Division: 319/892-6330 fax: 319/892-6339 fax: 319/892-6389