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Power Question is Simple One

Nicholas Johnson

Iowa City Press-Citizen

August 29, 2005

And see the related, expanded, Nicholas Johnson, "The Significance of Iowa City's 'Public Power' Vote; Where Are the Relevant Statutory Provisions and What Do They Say?" August 1, 2005 (linked from site August 29, 2005), at

For a Letter to the Editor responding to this op ed, see Paula S. Dierenfeld, "Know Facts on Public Power," Iowa City Press-Citizen, September 23, 2005.

[Note: This material is copyright by the Press-Citizen, and is reproduced here as a matter of "fair use" for non-commercial, educational purposes only. Any other use may require the prior approval of the Iowa City Press-Citizen.]

The public power questions are both more simple than first appear for the voters, and more complicated than first appear for the lawyers. ("Pair of Power Questions on Ballot Murky," Aug. 13)

The voters' choice is simple. We're not voting for or against a municipal utility. Legally, voters don't have that power. That's fortunate. How many of us know, really know, enough to document why it is, or is not, in our best interests?

The election isn't binding legally or politically. But it will be politically influential. If a majority vote "no," we will be urging the City Council to stop exploring the pros and cons of municipal electricity.

How dumb is that? Why would anyone want to discourage our City Council from considering options for community improvement? Isn't that precisely why we elected them?

So a "yes" vote is a thoughtful voter's only option. That part's easy.

It's more complicated for the lawyers. Fortunately, highly skilled lawyers for Citizens for Public Power, the City of Iowa City and MidAmerican think all is well. So post-election litigation is unlikely.

But here's a summary of my casual reading of a couple statutes.(For details, see [Note for online version: The direct link is to Nicholas Johnson, "The Significance of Iowa City's "Public Power" Vote; Where Are the Relevant Statutory Provisions and What Do They Say?" August 1, 2005 (linked from site August 29, 2005), at]

The Iowa Legislature publishes laws in volumes called the Code of Iowa. That's where Iowa's cities get their legal powers. One Code chapter deals with "City Utilities." In brief, it provides a five-step process for their creation.

1. A city council may make a "proposal to establish a city utility."

2. It may put that proposal on a ballot. (However, it can't proceed unless it does.)

3. The voters vote yes or no.

4. If a majority approves, the council then "may" proceed. (Or do nothing. There are not even requirements for studies or business plans.)

5. Even if a council does go ahead, its plan isn't effective until approved by the Iowa Utilities Board. (Following which the council could still do nothing.)

Our Nov. 8 ballot asks whether our city council "should be authorized to establish a city utility." There's nothing in the law about voters "authorizing" their city councils to make utility proposals. The Iowa Code gives city councils all the proposal authorization they need.

Our City Council can still propose a municipal utility if the ballot proposition is rejected. It can refuse to go ahead even if it passes.

One interpretation of the law is that all proposals for city utilities must come from city councils. After our Nov. 8 vote, and a subsequent proposal from our City Council, we voters would have to vote, this time on that council proposal.

The statutory language is sufficiently ambiguous that an argument could be made that a city's voters can act on their own. Over their council's objection they could propose "to establish a city utility," petition to put their proposal on the ballot, and then vote to approve it.

Even if that questionable interpretation is valid, presumably the proposition would need to specify, as the statute says, a "proposal to establish" -- not a "proposal to authorize a city council to establish." If our language is adequate to short circuit the council-proposal-plus-voter-ratification process, it still can't force our city council to create a utility.

The second ballot proposition raises more issues. The law authorizes the creation of a city's utility board (what proponents call a "board of trustees"). Public power proponents suggest the board will develop a business plan. But the law empowers such boards to "administer" and "operate" city utilities, not study them.

Once a proposal for a city utility receives "the approval of the voters," the city council "may" proceed. But once the voters approve a proposal for a utility board the mayor "shall" appoint its members.

We don't need a utility board to administer a non-existent utility. Moreover, what happens if one proposition passes and the other doesn't? Suppose a majority vote "no" on the utility but "yes" on the "board of trustees." After all, the second proposition says it's "required by law."

What if a majority vote "yes" for the municipal utility but "no" on the board? The law says we must wait four years, with a utility and no board, before we can vote again.

Fortunately, we voters don't have to worry about this "murky" legal stuff. We don't have to know a kilowatt from a kilobyte, a state code from a city charter. We can't vote for or against public power anyway. Just "yes" to continue the council's freedom to explore our best interests, or "no" to tie its hands.

That's a simple enough choice. Even I can vote "yes" with confidence.
Nicholas Johnson, a former FCC commissioner and school board member, teaches at the UI College of Law and maintains Reach him at njohnson [at]