State of Iowa v. Abraham K. Watkins

IN THE SUPREME COURT OF IOWA
No. 17–0183

Filed June 29, 2018

STATE OF IOWA,

Appellee,

vs.

ABRAHAM K. WATKINS,

Appellant.

Appeal from the Iowa District Court for Van Buren County,

James M. Drew, Judge.

The defendant challenges his removal from office as the Van Buren

County Attorney after the district court found he committed willful

misconduct or maladministration in office. REVERSED AND REMANDED

WITH INSTRUCTIONS.

Alfredo Parrish, Gina Messamer, and John Maschman of Parrish

Kruidenier Dunn Boles Gribble Gentry Brown & Bergmann L.L.P., Des

Moines, for appellant.

Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor

General, and Julie S. Kim, Assistant Attorney General, for appellee.

F. Montgomery Brown of F.M. Brown Law Firm, P.L.L.C., West Des

Moines, Special Prosecutor, for appellee.
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ZAGER, Justice.

An attorney removed from his elected position as Van Buren County

Attorney challenges the district court order for his removal. Chapter 66 of

the Iowa Code authorizes a district court to remove “[a]ny appointive or

elective officer, except such as may be removed only by impeachment,

holding any public office in the state or in any division or municipality

thereof” in certain circumstances. Iowa Code § 66.1A (2015). We must

now decide whether an elected county attorney was properly removed

under this statute for sexual harassment. For the reasons set forth herein,

we conclude that the conduct of the county attorney, while deserving the

disapproval it received from the district court, did not rise to the level of

misconduct that would warrant the “drastic” and “penal” remedy of a court

order removing an elected official from office. See State v. Callaway, 268

N.W.2d 841, 842 (Iowa 1978) (using these terms to characterize chapter

66). We reverse the judgment of the district court and vacate the order

removing the defendant from the office of Van Buren County Attorney. We

remand the case for further proceedings consistent with this opinion.

I. Facts and Procedural Background.

In May 2013, Abraham Watkins was sworn into the Iowa bar and

subsequently opened a solo practice in Keosauqua, Iowa. Watkins

operated his law practice out of an office located on the first floor or main

level of the two-story home he shared with his family. Watkins and his

family mostly lived upstairs. However, the home’s kitchen, laundry room,

and one of the two bathrooms are located on the main level, adjacent to

the office area. Watkins’s wife, Renee Watkins, worked closely with her

husband in the law office as the office manager for his private practice. In

September 2014, Watkins hired twenty-year-old Jasmin Wallingford as his

legal assistant. Two months later, Watkins was elected as the Van Buren
 3

County Attorney after running as an independent, and he assumed office

on January 1, 2015.

Following Watkins’s election as the Van Buren County Attorney,

which is a part-time position, Renee began to split her time between

serving as the office manager for her husband’s private practice and the

victim coordinator for the county attorney’s office. Additionally,

Wallingford began working part-time for Watkins in the county attorney’s

office, as well as part-time for him in his private law office.1 Wallingford

became close to the Watkins family, even labeling herself an “honorary

family member.” Wallingford and the Watkins family shared personal

details of their lives with each other. During this time, Wallingford assisted

Watkins and Renee with their young daughters and socialized with them

outside of the office. These social events included out-of-town trips

Wallingford took with the family in which they visited waterparks and

stayed in hotels together.

Based on a recommendation from Chris Kauffman, a friend of

Watkins, Watkins hired Virginia Barchman as a part-time assistant

county attorney in April 2015. At the time, Barchman had been retired

for five years after a twenty-four-year career as an attorney with the Iowa

Attorney General’s Office’s Area Prosecutions Division. Barchman began

working in the same first-floor office area shared by Watkins, Renee, and

Wallingford, though tensions arose between Watkins and Barchman not

long after Barchman’s hiring. The pair engaged in a number of intense

arguments that made it difficult for them to work together on cases.

Disagreements between Watkins and Barchman continued to

escalate in the spring of 2016. Wallingford also began to look for other

1With the approval of the county board of supervisors, Watkins used his home

office as his county attorney office.
 4

employment beginning in the spring of 2016. After a domestic-abuse trial

that was held in the summer of 2016, Barchman expressed her

frustrations with Watkins by criticizing his performance during the trial

and accusing him of “smelling like booze.” 2 In August, Barchman obtained

permission from the Van Buren County Board of Supervisors (Board) to

work in a different office space in the Van Buren County courthouse due

to issues she had with the noise in Watkins’s office and Watkins himself.

She labeled this new workspace an “Abe-free zone.” Watkins soon began

seeking job applications for an assistant county attorney, which

Barchman interpreted to mean Watkins was looking to replace her.

Although Watkins disputed that he had been drinking during the

trial, he clearly had an issue with alcohol abuse outside the workplace.

Renee grew tired of Watkins’s drinking habits, and the couple would

constantly argue about their marital issues in the office. Finally, on

August 5, Renee and the Watkinses’ children left the home to visit Renee’s

family in North Carolina because Renee was exasperated with Watkins’s

drinking. As a result, Watkins contacted Kauffman, who helped Watkins

receive medical care for his drinking issues. Watkins also contacted and

met with Hugh Grady from the Iowa Lawyers Assistance Program. Grady

recommended that Watkins immediately stop drinking, visit a counselor,

attend Alcoholics Anonymous meetings, and maintain regular contact with

him. Watkins took the necessary steps to follow through with these

recommendations, beginning with his sobriety. Throughout these

personal struggles during the summer of 2016, both Watkins and Renee

confided in Wallingford for support.

2Wallingford, among others, later testified that Watkins was never intoxicated
during the trial. The trial resulted in convictions of the defendant on all counts.
 5

On August 9, Wallingford resigned from her positions with Watkins.

Wallingford stated in her resignation letter, “I have learned many things in

my time here, including what makes a hostile work environment.” As her

reason for leaving, she wrote, “Due to aberrant behavior and a hostile work

environment, I no longer can continue my position and feel confident about

coming into work.” Kauffman met with Wallingford around the time of her

resignation and encouraged her to write down all of her complaints

regarding Watkins. Wallingford prepared her list in the week following her

resignation. Barchman turned over Wallingford’s resignation letter to

John Finney, the Van Buren County Auditor, and contacted her former

colleague Scott Brown in the Iowa Attorney General’s Office about the

resignation letter and Wallingford’s complaints with Watkins.

Wallingford’s list totaled approximately fifty-five complaints about

her work with Watkins over the previous two years. The overwhelming

majority of her complaints involved her frustration with the menial work

tasks she was given and the way they made her feel inferior to Watkins.

These complaints included “criticizing me in front of customers,” “constant

yelling between him [and] Renee,” “the importance of him [and] not us,”

“my #1 job was to be there to answer the phone,” and “[he] very often

expected me to figure [work] out then remind me I didn’t go to law school.”

While the majority of Wallingford’s complaints dealt with work

assignments and the lack of respect she felt she received, several of the

complaints involved conduct potentially amounting to sexual harassment.

Wallingford reported that twice Watkins came down the stairs and

entered the office area to get coffee while wearing only athletic shorts or

boxer briefs in the early morning. On one of those occasions, Wallingford

laughed and Watkins walked over to her desk. However, he did not stay
 6

long. According to Wallingford, neither of these occurrences happened

within six months of the filing of the petition for removal.

On another occasion, Watkins showed Wallingford two photographs

of his naked wife and a video Watkins made of an incident where his wife

accidentally squirted breast milk in Wallingford’s car. The display of the

photographs and the video occurred after work hours in the family kitchen

while the family and Wallingford were having dinner together. Renee

immediately objected to Watkins’s display of the photographs, and the

incident in the family kitchen ended upon her objection. Although the

timing of this incident is unclear, it did not occur within six months of the

filing of the petition for removal.

Additionally, Watkins made several sexual comments to Wallingford.

Some of these occurred in the workplace. On one occasion, Watkins told

Wallingford that her “boobs [were] distracting him.” On another occasion,

after seeing a particular woman, Watkins told Wallingford, “Man, I

wouldn’t want to see her naked.” Watkins also complained to Wallingford

that his wife did not want to have sex and said he wished he had a wife

who wanted to have sex with him all the time. On another occasion,

Watkins made an inappropriate sexual pun about the name of a cleaning

product in the presence of Wallingford and two women custodians.

Wallingford took this as a poor attempt at humor, and she knew that the

other women did not understand it.

At a birthday party for one of his daughters, which took place in a

park on a Saturday, Watkins commented to Kauffman about the breasts

of a courthouse employee. The following Monday, Watkins attempted to

bring up the subject again in front of Renee and Wallingford. Renee cut

him off and told Watkins she did not want to hear about it.
 7

On a different occasion, Wallingford was speaking with Renee about

Wallingford’s visit to a gynecologist. Watkins overheard this conversation

and began to pester Wallingford about what was wrong with her, at which

point Renee made a comment along the lines that Wallingford had a

“broken vagina.” Watkins later asked Wallingford on another occasion

whether “her vagina was still broke.” Finally, after Renee left the family

home with their daughters on August 5, Watkins contacted Wallingford by

telephone on Sunday night. During the course of a long and wide-ranging

discussion, Watkins made the comment that he was glad he had kept nude

photographs of his old girlfriends.

As noted above, Wallingford submitted her letter of resignation on

August 9. Wallingford subsequently attempted to retract her resignation

after Barchman informed her that she could work with Barchman from an

office in the old courthouse. However, Wallingford was not rehired. She

soon found employment with the Van Buren County Sheriff’s Office.

Barchman also witnessed some of the incidents described above.

On one occasion, Barchman saw what she believed to be Watkins

appearing downstairs in his underwear. She made her objections to his

behavior clear to Watkins, and there is no indication that this ever

happened again in her presence. Further, Watkins used a crude sexual

term as a nickname for a particular female attorney in Barchman’s

presence. She told Watkins that this was offensive to her, and she never

heard him use the expression again.

Watkins also asked Wallingford if her “vagina was still broke” on one

occasion when Barchman was present. Moreover, Barchman saw a

photograph of Watkins’s wife while she was pregnant, nude, and covered

in blue paint on Watkins’s computer screen by accident when she went to

his office to discuss something with him.
 8

Barchman could not recall hearing Watkins ever make a single

“come-on” line to any female employee or client. Her initial complaints in

July 2016 were about Watkins’s performance during the aforementioned

domestic-abuse trial. Her concerns at the time related to Watkins’s alleged

drinking during the trial.

In mid-August, Barchman forwarded Wallingford’s letter of

resignation to Jon Swanson, the attorney for Van Buren County. Swanson

then notified the Board, which took steps to investigate the allegations

against Watkins. The Board held two closed sessions to discuss the

allegations and how to handle them. After the first closed session, the

Board retained attorney Thomas H. Miller at the recommendation of

Swanson to conduct a formal investigation and advise the Board on the

best course of action.

Miller is a former Iowa Assistant Attorney General who has

experience handling public-official misconduct. Miller was also

Barchman’s supervisor when the two worked in the Iowa Attorney

General’s Office. During his investigation, Miller spoke to a number of

individuals in Van Buren County including Barchman, Wallingford,

Kauffman, and the Van Buren County Sheriff. Miller never spoke with

Watkins or Renee as part of his investigation. Further, Barchman

incorrectly reported to Swanson and Miller that Watkins refused to

cooperate with alcohol treatment recommendations made by Grady.

At the second closed session, Miller and the Board discussed the

results of his investigation. During this discussion, Miller told the Board

about possible ways to initiate removal proceedings of Watkins under Iowa

Code section 66.3. One route included bringing the removal petition by

five registered voters of the county as specifically provided for in section

66.3(3). Despite the existence of this method to initiate the proceedings,
 9

Miller advised the Board that through “a little bit of legal wrangling,” the

Board could initiate the removal proceedings by appointing an acting

county attorney under Iowa Code section 331.754(4) and the acting county

attorney would then be authorized to initiate the action to remove the

elected county attorney. The Board decided to proceed on this basis.

For reasons that are not apparent from this record, Miller did not

contact the Iowa Attorney General’s Office to have it initiate the removal

action as specifically authorized by Iowa Code section 66.3(1). This is the

method most often used in removal actions. Rather, upon Miller’s

recommendation, the Board retained attorney F. Montgomery Brown as

acting county attorney and authorized him to initiate the removal action

utilizing the procedure outlined above.

After Brown met with Watkins and learned he would not resign

voluntarily, Brown filed the petition to remove Watkins from office

pursuant to Iowa Code sections 66.11 and 331.754(4) on September 29.

Once Brown filed the removal proceedings, the district court appointed

him to appear on the State’s behalf and prosecute Watkins’s removal

proceedings pursuant to Iowa Code section 66.12.

In its final amended petition, the State sought removal of Watkins

on five separate grounds. Four involved allegations that Watkins engaged

in “willful misconduct or maladministration in office” in violation of Iowa

Code section 66.1A(2) by (1) creating a “hostile work environment” that

included sexual harassment, (2) supplying a minor with alcohol in

violation of Iowa Code sections 123.47(1) and 123.47(2)(a), (3) retaliation,

and (4) accepting three private-practice cases that created conflicts of

interest with his position as county attorney. The petition also sought

Watkins’s removal on the ground that he had been intoxicated in violation

of Iowa Code section 66.1A(6).
 10

Watkins filed a motion to dismiss the removal petition. The motion

urged that the Board did not have the power to initiate a removal action

under Iowa Code section 66.3, nor could the Board empower Brown to

prosecute the action under Iowa Code section 331.754(4). Additionally,

Watkins claimed a breach of contract by the county. Watkins alleged his

signature on the Van Buren County Employee Handbook and

consideration in the form of legal services and compliance with the

county’s rules created a binding contract. Watkins further claimed the

county breached this contract when it did not “promptly name an impartial

investigator” as provided for in the handbook. Watkins cited Miller’s

former working relationship and friendship with Barchman. Moreover,

Watkins argued the Board violated the handbook’s employment policy of

progressive discipline by initiating termination before taking other, less

drastic measures.

On October 28, the district court denied Watkins’s motion to

dismiss. The district court ruled the Board had the authority to appoint

an attorney under Iowa Code section 331.754(4) to act as county attorney

when the elected county attorney had a conflict of interest. The district

court ruled that Watkins had an “obvious” conflict of interest in this civil

proceeding. The district court reasoned that Brown, as the lawfully

appointed acting county attorney on the matter, had the same authority

over the matter for which he was appointed under Iowa Code section

331.754(4) as the elected county attorney. Thus, the district court found

that Brown was considered a county attorney for purposes of Iowa Code

section 66.3(5).

Trial on the petition for removal commenced on October 31 and

continued sporadically over the next several months with final submission

of evidence occurring on December 22. On January 3, 2017, the district
 11

court issued its Order for Removal from Office. The district court ordered

Watkins’s removal from the office of Van Buren County Attorney solely

based on the sexual-harassment claim. In reaching its decision, the

district court found a “significant contrast between the recollections of the

State’s witnesses versus the recollections of Mr. Watkins; his wife; and

current employee, Ms. Richardson.” The district court found the State’s

witnesses more credible and considered their testimony to be truthful

because nothing indicated the witnesses fabricated their testimony or had

a substantial personal interest in the outcome in comparison to Watkins’s

witnesses, who, the district court noted, were not eager to testify.

In addition to the aforementioned complaints from Wallingford and

Barchman, the district court also took into account testimony from Tayt

Waibel and Kauffman. The district court found the testimony of Waibel,

who had worked for Watkins in his private law office, to be truthful. Her

testimony recounted inappropriate sexually charged remarks made by

Watkins. One of those comments was directed at Waibel personally and

occurred on a weekend after Watkins was served with removal papers.

After making the inappropriate statement, Watkins acknowledged, “This

is probably why I’m in trouble for sexual harassment.” Moreover, the

district court relied on testimony from Kauffman, who testified that

Watkins liked to talk about sex, frequently offered to show him naked

pictures of his wife, and once commented on the breasts of a courthouse

employee.

In its decision to remove Watkins from office, the district court

reasoned,

During his tenure as County Attorney, Mr. Watkins has
engaged in a pattern of conduct that is unacceptable by any
reasonable standard. Many people, probably most, would
consider much of his conduct to be outrageous or even
 12

shocking. The fact that Mr. Watkins is an attorney trained in
the law makes his behavior all the more troublesome. Iowa’s
Rules of Professional Conduct for attorneys recognize that
lawyers holding public office assume legal responsibilities
going beyond those of other citizens. A lawyer’s abuse of
public office can suggest an inability to fulfill the professional
role of a lawyer. I.R.P.C. 32:8.4 Comment 5.

The State has proven that Mr. Watkins has engaged in
misconduct or maladministration by regularly committing
sexual harassment. The bigger question is whether his
conduct was willful, which requires proof that he acted
intentionally with a purpose to do wrong. . . .

. . . Mr. Watkins’s inappropriate conduct was pervasive
and existed over a significant period of time thereby negating
any claim of mistake or an isolated lapse of judgment. His
actions were clearly intentional. As a lawyer he knew better
but continued to subject his two young female employees to
sexually related banter, and in some instances images, that
have no place in the work setting. This is especially true for a
county attorney’s office. Given the extent and stunning
nature of his conduct one can, and in the Court’s opinion
must, infer that he was acting with a bad or evil purpose.
Therefore, the State has established that his conduct was
willful.

The State withdrew its retaliation claim at closing, conceding that it

failed to prove Watkins retaliated against Barchman. The district court

did not further address the retaliation allegation or the State’s claim that

Watkins supplied a minor with alcohol in violation of Iowa Code sections

123.47(2)(a) and 123.47(5). Additionally, the court made no findings of

fact regarding the allegations that Watkins committed willful misconduct

or maladministration in office based on the conflicts-of-interest claim

against him, finding instead that none of the allegations justified Watkins’s

removal. The district court also found insufficient evidence to establish

the State’s intoxication allegation, noting that “substantial evidence,”

including the testimony of the presiding judge at the trial, established that
 13

Watkins was not intoxicated in court. 3 The district court also did not make

any findings regarding the Board’s alleged breach of the handbook or the

conflicts of the Board members who helped initiate the removal

proceedings. Additional facts will be included within our following

analysis. Watkins timely filed an appeal, which we retained.

II. Standard of Review.

Our standard of review for rulings on questions of statutory

interpretation is for correction of errors at law. State v. Iowa Dist. Ct., 889

N.W.2d 467, 470 (Iowa 2017). In removal proceedings, the State bears the

burden of proof to establish that the public official committed the charged

acts of misconduct or maladministration in office with “willful intent to do

wrong [and] an evil purpose upon the part of the accused, . . . by clear,

convincing, satisfactory evidence.” State ex rel. Crowder v. Smith, 232 Iowa

254, 255, 4 N.W.2d 267, 268 (1942). This standard requires the State to

establish the facts “by more than a preponderance of evidence, but

something less than establishing a factual situation beyond a reasonable

doubt.” State v. Bartz, 224 N.W.2d 632, 638 (Iowa 1974).

In determining whether the State has met this burden, we review

the evidence submitted in a removal proceeding de novo. Callaway, 268

N.W.2d at 842.

There is essentially but one question before us as triers [d]e
novo on this appeal: Does the record compiled below contain
sufficient evidence of misconduct on the part of [the]
defendant[ ] . . . as [an] elected public official[ ] to necessitate
[his] removal from office under the provisions of Chapter 66.

3As previously noted, the testimony of the witnesses confirmed that Watkins was
never intoxicated during the trial, and the trial resulted in convictions on all counts.
 14

Bartz, 224 N.W.2d at 634. To answer this question, we give the trial court’s

findings weight “but nonetheless assume the responsibility of reviewing

the entire record in determining the case anew on appeal.” Id.

III. Analysis.

Watkins presents a number of issues on appeal. First, Watkins

challenges the manner in which the removal action was initiated. Second,

Watkins disputes the district court’s determination that his conduct

amounted to willful misconduct or maladministration in office. See Iowa

Code § 66.1A(2). Third, Watkins contends the district court should have

dismissed the removal action because Van Buren County did not retain

an impartial investigator to investigate the allegations of sexual

harassment as promised in the employee handbook. Fourth, he asserts

the district court should have dismissed the removal action because it was

tainted by a conflict of interest. Fifth, Watkins claims the district court

should have dismissed the removal action because the Board failed to

implement the progressive disciplinary procedures set forth in the

handbook before initiating the removal process. Finally, Watkins argues

he is entitled to attorney’s fees on the dismissed grounds for removal.

A. The Initiation of Removal Proceedings. Watkins contends the

district court erred when it denied his motion to dismiss the removal action

against him because the Board unlawfully initiated the removal

proceedings. He maintains that the Board could not empower an acting

county attorney appointed under Iowa Code section 331.754(4) to initiate

removal proceedings because only the elected county attorney or attorney

general may initiate removal proceedings as the sole complainant under

Iowa Code section 66.3. Watkins also argues allowing the Board to appoint

an acting county attorney to prosecute the removal proceedings under

section 331.754(4) would render the special-prosecutor provision of
 15

section 66.12 superfluous. We begin our analysis by reviewing the

relevant statutes regarding removal and the appointment of an acting

county attorney.

Iowa Code section 331.754(4) provides, “The board may appoint an

attorney to act as county attorney in a civil proceeding if the county

attorney and all assistant county attorneys are disqualified because of a

conflict of interest from performing duties and conducting official

business.” Iowa Code § 331.754(4). Iowa Code section 66.3 is specific to

removal and states the following:

The petition for removal may be filed:

1. By the attorney general in all cases.

2. As to state officers, by not fewer than twenty-five
electors of the state.

3. As to any other officer, by five registered voters of the
district, county, or municipality where the duties of the office
are to be performed.

4. As to district officers, by the county attorney of any
county in the district.

5. As to all county and municipal officers, by the
county attorney of the county where the duties of the office
are to be performed.

Id. § 66.3. Finally, Iowa Code section 66.12 states, “When the proceeding

is brought to remove the county attorney, the court may appoint an

attorney to appear in behalf of the state and prosecute such proceedings.”

Id. § 66.12.

Nothing in Iowa Code section 66.3 distinguishes between elected

and acting county attorneys. “When a proposed interpretation of a statute

would require the court to ‘read something into the law that is not

apparent from the words chosen by the legislature,’ the court will reject

it.” State v. Iowa Dist. Ct., 730 N.W.2d 677, 679 (Iowa 2007) (quoting State
 16

v. Guzman-Juarez, 591 N.W.2d 1, 2 (Iowa 1999)). Still, incorporating

section 331.754(4) into section 66.3 could potentially allow a county board

of supervisors to circumvent the limits of section 66.3 since “county boards

of supervisors” are not among the entities authorized to bring removal

petitions. See Iowa Code § 66.3. Nonetheless, in this case we do not have

merely the Board’s action appointing Brown pursuant to section

331.754(4). The district court also appointed Brown pursuant to section

66.12. Therefore, without deciding whether Brown would have had

authority to pursue the removal action if the court had not appointed him

under section 66.12, we decline Watkins’s request to hold the removal

petition should have been dismissed based on lack of authority.

B. Removal from Office. Iowa Code section 66.1A states,

Any appointive or elective officer, except such as may be
removed only by impeachment, holding any public office in
the state or in any division or municipality thereof, may be
removed from office by the district court for any of the
following reasons:

1. For willful or habitual neglect or refusal to perform
the duties of the office.

2. For willful misconduct or maladministration in
office.

3. For corruption.

4. For extortion.

5. Upon conviction of a felony.

6. For intoxication, or upon conviction of being
intoxicated.

7. Upon conviction of violating the provisions of
chapter 68A.

Iowa Code § 66.1A. “A proceeding to remove a public officer under this

statute is a drastic one and is penal or quasi-criminal in character.” City

of Des Moines v. Dist. Ct., 241 Iowa 256, 262, 41 N.W.2d 36, 39 (1950).
 17

“Removal is drastic and penal.” Callaway, 268 N.W.2d at 842. “The object

‘is to rid the community of a corrupt, incapable or unworthy official.’ ” Id.

(quoting State v. Welsh, 109 Iowa 19, 21, 79 N.W. 369, 370 (1899)). “[T]he

remedy provided by statute for the removal of duly elected public officials

is heroic in nature and relatively drastic in a system where the usual

method of removing officeholders is by resort to the ballot.” Bartz, 224

N.W.2d at 638.

We have previously emphasized the summary and expedited nature

of removal and noted that it “implement[s] a legislative intent that a public

officer guilty of willful misconduct or maladministration be removed during

the same term of office in which the conduct occurred that provided

grounds for removal.” State ex rel. Doyle v. Benda, 319 N.W.2d 264, 266

(Iowa 1982). Essentially, removal proceedings exist to provide a remedy

when the misconduct is serious enough that waiting until the next election

is inadequate. See id. (noting that removal proceedings are designed to

occur before the next election and are mooted if the official is voted out of

office or reelected with knowledge of the alleged wrongdoing). They are

meant to protect public interests, and those interests are imperiled when

a public official’s “administration of the office is marked by such grave

misconduct or such flagrant incompetency as demonstrates his unfitness

for the position.” State ex rel. Barker v. Meek, 148 Iowa 671, 680, 127

N.W. 1023, 1026 (1910).

The State bears the burden of proof in removal proceedings to

establish the alleged wrongdoer’s “willful intent to do wrong [and] an evil

purpose upon the part of the accused, . . . by clear, convincing, satisfactory

evidence.” Smith, 232 Iowa at 255, 4 N.W.2d at 268. This standard of

proof is defined as “the establishment of facts by more than a

preponderance of the evidence, but something less than establishing a
 18

factual situation beyond a reasonable doubt.” Bartz, 224 N.W.2d at 638.

Moreover, with regard to section 66.1A(2), the phrase “in office” modifies

both “willful misconduct” and “maladministration,” so the State bears the

additional burden of showing by clear, convincing, and satisfactory

evidence that the alleged wrongdoer’s acts were committed within the

scope of his or her official responsibilities. See, e.g., State ex rel. Gebrink

v. Hospers, 147 Iowa 712, 714, 126 N.W. 818, 819 (1910) (noting removal

“should be exercised only in cases of official wrongdoing established by

clear and satisfactory evidence”). 4 Therefore, the public official’s alleged

4The standard we have described requiring the public official to have committed
the misconduct within the scope of official responsibilities under chapter 66 generally
comports with those followed in other jurisdictions. See, e.g., Ala. Const. art. VII, § 173(a)
(allowing for the removal of certain public officials “for willful neglect of duty, corruption
in office, incompetency, or intemperance in the use of intoxicating liquors or narcotics to
such an extent, in view of the dignity of the office and importance of its duties, as unfits
the officer for the discharge of such duties for any offense involving moral turpitude while
in office, or committed under color thereof, or connected therewith”); Kan. Stat. Ann. § 60-
1205 (West, Westlaw through 2018 Reg. Sess.) (providing Kansas public officials, “except
those subject to removal from office only by impeachment,” must forfeit office if they
“(1) willfully engage in misconduct while in office, (2) willfully neglect to perform any duty
enjoined upon such person by law, (3) demonstrate mental impairment such that the
person lacks the capacity to manage the office held, or (4) . . . shall commit any act
constituting a violation of any penal statute involving moral turpitude”); Utah Code Ann.
§ 10-3-826 (West, Westlaw through 2018 Gen. Sess.) (“In case any municipal officer shall
at any time wilfully omit to perform any duty, or wilfully and corruptly be guilty of
oppression, malconduct, misfeasance, or malfeasance in office, the person is guilty of a
class A misdemeanor, shall be removed from office, and is not eligible for any municipal
office thereafter.”); id. § 77-6-1 (“All officers of any city, county, or other political
subdivision of this state not liable to impeachment shall be subject to removal as provided
in this chapter for high crimes and misdemeanors or malfeasance in office.”); State ex
rel. Hardie v. Coleman, 155 So. 129, 132 (Fla. 1934) (en banc) (“Malfeasance [as grounds
for removal of a public official] has reference to evil conduct or an illegal deed . . . .
[Further,] misfeasance has reference to the performance by an officer in his official
capacity of a legal act in an improper or illegal manner. . . .”); Maddox v. Williamson Cty.
Bd. of Comm’rs, 475 N.E.2d 1349, 1355 (Ill. App. Ct. 1985) (defining “malfeasance” and
“misfeasance” as grounds for removal in the same manner as Florida did in Hardie);
Woodward v. Commonwealth, 984 S.W.2d 477, 479 (Ky. 1998) (holding a public official is
guilty of malfeasance when he or she “perform[s] an official act” and the act is “wrongful,
unjust or constitute[s] gross negligence”); Ekstedt v. Village of New Hope, 193 N.W.2d
821, 828 (Minn. 1972) (finding a public employee can be discharged for just cause or
misconduct when that cause is “one which specially relates to and affects the
 19

wrongdoing must take place within his or her capacity as a public official

and not when the official was acting as a private citizen.

As we have noted, the district court removed Watkins from office for

sexual harassment, either rejecting or not reaching the other grounds. The

State does not argue on appeal that any of those other grounds should

have been sustained. Thus, our sole duty on appeal is to decide whether

the allegations of sexual harassment are such as to constitute willful

misconduct or maladministration in office warranting removal from office.

1. Defining “willful misconduct or maladministration.” We have

defined “willfully” in the removal context to mean that the public official

must act “intentionally, deliberately, with a bad or evil purpose, contrary

to known duty.” State v. Roth, 162 Iowa 638, 651, 144 N.W. 339, 344

(1913). In the removal context, “[c]onduct may be voluntary, thoughtless,

or even reckless, yet not necessarily willful. Nor does unlawfulness

necessarily imply willfulness.” Meek, 148 Iowa at 674, 127 N.W. at 1024

(citation omitted).

We have routinely applied a subjective-intent standard to examine

the public official’s purpose when he or she engaged in the charged acts

to determine whether the official intentionally and deliberately committed

those acts. For example, in Roth, we held that the removal of a mayor and

chief of police was improper based on claims that they were “willfully”

neglecting to prevent baseball from being played on Sundays when such

administration of the office, and [is] restricted to something of a substantial nature
directly affecting the rights and interests of the public. The cause must be one touching
the qualifications of the officer or his performance of its duties, showing that he is not a
fit or proper person to hold the office.” (quoting State ex rel. Hart v. Common Council, 55
N.W. 118, 120 (Minn. 1893))); Daugherty v. Day, 116 S.E.2d 131, 135 (W. Va. 1960))
(holding justification for the removal of a public official includes official misconduct or
evil actions in connection with official duties, including “unlawful behavior by a public
officer in relation to the duties of his office, willful in character.” (quoting Kesling v. Moore,
135 S.E. 246, 248 (W. Va. 1926))).
 20

activity may or may not have been illegal on the Sabbath day. 162 Iowa

at 651, 144 N.W. at 344. In doing so, we examined the subjective intent

of the public officials, noting that the city officials were acting in good faith

based on their uncertainty of the law at issue rather than neglecting to

enforce it. Id.

Further, in State ex rel. Cochran v. Zeigler, we held the state failed to

demonstrate willful misconduct in office to justify the removal of a mayor

based on allegations that the mayor violated the law by having an interest

in contracts for goods or services to be furnished or performed for the city.

199 Iowa 392, 397, 202 N.W. 94, 96 (1925). We reached this conclusion

based on the lack of evidence in the record “to indicate a corrupt purpose

upon the part of [the mayor], or that fraud or imposition was practiced

upon the city.” Id. Moreover, in State v. Manning, we held the state failed

to show public officials acted willfully to justify their removal for willful

and habitual neglect, maladministration, and corruption in office because

we could not find a “purpose, on the part of said officials in what they did,

to harm, or which was inimical to the interests of such city.” 220 Iowa

525, 528, 259 N.W. 213, 215–16 (1935).

Thus, it is not a question of whether a reasonable person would find

that the public official acted contrary to his or her duties or even

unlawfully. Nor is it a question of how outrageous or inappropriate the

public official’s conduct is perceived by our court or others in the

community. Rather, the first issue before us hinges on the public official’s

subjective intent to act with a bad or evil purpose to commit his or her

charged acts of wrongdoing contrary to a known duty.

In addition to the public official’s subjective intent at the time of the

charged misconduct or maladministration, we must also discern whether

the public official acted contrary to a known duty when he or she engaged
 21

in these acts. See Roth, 162 Iowa at 651, 144 N.W. at 344. More

specifically, we have held that removal “should be exercised only in cases

of official wrongdoing established by clear and satisfactory evidence.”

Hospers, 147 at 714, 126 N.W. at 819. To illustrate, in Callaway, we

found willful misconduct or maladministration in office to justify removal

where a sheriff repeatedly assaulted prisoners without justification by

kicking, striking, and punching them, spraying them in the face with

mace, and kneeing them in the groin. 268 N.W.2d at 843–47, 848. In

reaching this decision, we noted the sheriff’s treatment of the prisoners

violated various laws, including his legal duty “to protect prisoners from

insult and annoyance.” Id. at 847. Likewise, we found removal was

justifiable for willful misconduct or maladministration in office when

county supervisors loosely managed funds and falsely claimed payment

for mileage that they had not travelled. Bartz, 224 N.W.2d at 636, 637–

38, 638–39.

Similarly, in State ex rel. Duckworth v. Smith, we affirmed the

removal of a county treasurer for willful misconduct or maladministration

in office after the county treasurer acted alongside a treasurer’s office

employee to withdraw funds from the county treasurer’s office for private

purposes. 219 Iowa 5, 7, 257 N.W. 181–82 (1934). In reaching our

conclusion, we noted the county treasurer repeatedly took money from the

treasurer’s office “after he had been told that such action was unlawful”

and “after being warned by the state checkers.” Id. at 7, 257 N.W. at 182.

We also looked at the treasurer’s knowledge of his own wrongdoing, noting

certain actions by the treasurer “seem[ed] to indicate knowledge on [his]

part . . . that the abstraction of funds from the treasurer’s office was not

proper.” Id. at 6, 257 N.W. at 181.
 22

In summary, to remove a public official from office for willful

misconduct or maladministration in office, the State has the burden to

prove by clear, convincing, and satisfactory evidence that the official

committed the charged acts “intentionally, deliberately, with a

[subjectively] bad or evil purpose, contrary to known duty.” Roth, 162 Iowa

at 651, 144 N.W. at 344; see Smith, 232 Iowa at 255, 4 N.W.2d at 268.

2. The definition of sexual harassment in the Iowa Rules of

Professional Conduct. In determining that Watkins committed willful

misconduct or maladministration in office through his charged acts, the

district court applied the standard for sexual harassment set forth in the

Iowa Rules of Professional Conduct rather than the employment law

standard for a hostile-work-environment sexual-harassment claim. We

have defined the term “sexual harassment” in the context of professional

misconduct cases to “include any physical or verbal act of a sexual nature

that has no legitimate place in a legal setting.” Iowa Supreme Ct. Att’y

Disciplinary Bd. v. Moothart, 860 N.W.2d 598, 604 (Iowa 2015). The

standard for sexual harassment established under the rules does not

include the necessary analysis of the accused’s intent that is required in

the removal context to determine whether the accused acted “intentionally,

deliberately, with a bad or evil purpose, contrary to a known duty.” Roth,

162 Iowa at 651, 144 N.W. at 344.

Further, the professional rules “are designed to provide guidance to

lawyers and to provide a structure for regulating conduct through

disciplinary agencies.” Iowa R. Prof’l Conduct ch.32, Scope [20]. The

“[v]iolation of a Rule should not itself give rise to a cause of action against

a lawyer nor should it create any presumption in such a case that a legal

duty has been breached.” Model Rules Prof’l Conduct Scope [20] (Am. Bar

Ass’n 2016); see also Stender v. Blessum, 897 N.W.2d 491, 504 (Iowa 2017)
 23

(holding that a violation of the rules of professional conduct “cannot be

used to establish a per se claim for legal malpractice”); Ruden v. Jenk, 543

N.W.2d 605, 611 (Iowa 1996) (holding the rules of professional conduct do

“not undertake to define standards of civil liability”). An additional remedy

exists within the attorney disciplinary system for any ethical violations

that Watkins committed.

3. The definition of sexual harassment in employment law.

Employment law recognizes two different forms of sexual harassment

under Title VII of the Civil Rights Act and the Iowa Civil Rights Act (ICRA),

namely, quid pro quo and hostile or abusive work environment. See

McElroy v. State, 637 N.W.2d 488, 499 (Iowa 2001); see also Vivian v.

Madison, 601 N.W.2d 872, 873 (Iowa 1999) (“The ICRA was modeled after

Title VII of the United States Civil Rights Act. Iowa courts therefore

traditionally turn to federal law for guidance in evaluation the ICRA.”). The

State alleges Watkins created a hostile or abusive work environment. It

does not accuse Watkins of engaging in quid pro quo sexual harassment,

so our analysis in this case focuses only on the legal standards governing

a sexually hostile work environment.

“ ‘A hostile work environment is a cumulative phenomenon,’ and a

series of individual episodes of inappropriate behavior eventually can

amount to a hostile environment.” Simon Seeding & Sod, Inc. v. Dubuque

Human Rights Comm’n, 895 N.W.2d 446, 470 (Iowa 2017) (quoting Alvarez

v. Des Moines Bolt Supply, Inc., 626 F.3d 410, 421 (8th Cir. 2010). Hostile-

work-environment claims “recognize[] workplace discrimination affects the

full spectrum of disparate treatment in the workplace and target[s]

discrimination that requires employees to work in a discriminatorily

abusive or hostile workplace.” Farmland Foods, Inc. v. Dubuque Human

Rights Comm’n, 672 N.W.2d 733, 743 (Iowa 2003). Such claims are
 24

“actionable when the sexual harassment is so severe or pervasive as to

alter the conditions of employment and create an abusive working

environment.” McElroy, 637 N.W.2d at 499.

“The gravamen of any sexual harassment claim is that the alleged

sexual advances were ‘unwelcome.’ ” Meritor Sav. Bank, FSB v. Vinson,

477 U.S. 57, 68, 106 S. Ct. 2399, 2406 (1986) (quoting 29 C.F.R.

§ 1604.11(a) (1985)). “A recurring point in [the jurisprudence governing

sexually hostile work environments] is that ‘simple teasing,’ offhand

comments, and isolated incidents (unless extremely serious) will not

amount to discriminatory changes in the” employment conditions to create

an abusive work environment. Faragher v. City of Boca Raton, 524 U.S.

775, 787–88, 118 S. Ct. 2275, 2283 (1998) (quoting Oncale v. Sundowner

Offshore Servs., Inc., 523 U.S. 75, 82, 118 S. Ct. 998, 1003 (1998)). “The

correct inquiry is whether [complainant] by her conduct indicated that the

alleged sexual advances were unwelcome.” Meritor Sav. Bank, 477 U.S. at

68, 106 S. Ct. at 2406.

To establish a hostile work environment, the plaintiff
must show: (1) he or she belongs to a protected group; (2) he
or she was subjected to unwelcome harassment; (3) the
harassment was based on a protected characteristic; and
(4) the harassment affected a term, condition, or privilege of
employment.

Farmland Foods, 672 N.W.2d at 744. Such harassment occurs “[w]hen

the workplace is permeated with ‘discriminatory intimidation, ridicule, and

insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the

victim’s employment and create an abusive working environment.’ ” Id. at

743 (alteration in original) (quoting Harris v. Forklift Sys., Inc., 510 U.S.

17, 21, 114 S. Ct. 367, 370 (1993)). The standards governing a hostile

work environment are intended to “filter out complaints attacking ‘the

ordinary tribulations of the workplace, such as the sporadic use of abusive
 25

language, gender-related jokes, and occasional teasing.’ ” Burlington N. &

Santa Fe Ry. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 2415 (2006)

(quoting Faragher, 524 U.S. at 788, 118 S. Ct. at 2283–84).

Accordingly, the plaintiff must establish that “he or she subjectively

perceived the conduct as abusive, [and] that a reasonable person would

also find the conduct to be abusive or hostile.” Farmland Foods, 672

N.W.2d at 744. To determine whether a reasonable person would find the

challenged conduct to be abusive or hostile, the fact finder must examine

all of the circumstances,

including: (1) the frequency of the conduct, (2) the severity of
the conduct, (3) whether the conduct was physically
threatening or humiliating or whether it was merely offensive,
and (4) whether the conduct unreasonably interfered with the
employee’s job performance. These factors and circumstances
must disclose that the conduct was severe enough to amount
to an alteration of the terms or conditions of employment.
Thus, hostile-work-environment claims by their nature
involve ongoing and repeated conduct, not isolated events.

Id. at 744–45 (citations omitted).

The district court ruling in this case did not actually find the State

proved the elements of a hostile-work-environment sexual-harassment

claim.

4. Sufficiency of the evidence to warrant removal. In determining

whether the State has met its burden to remove Watkins from office, the

dispositive question is whether the record contains “sufficient evidence of

misconduct on the part of [the] defendant[] . . . as [an] elected public

official[] to necessitate [his] removal from office under the provisions of

Chapter 66.” Bartz, 224 N.W.2d at 634. We certainly agree that sexual

harassment can be the basis for removal from office under chapter 66. The

applicable legal standard, though, is not that found in the rules of

professional conduct or in civil employment law. Rather, it is the standard
 26

found in chapter 66. In this case, the district court did not discuss our

precedents interpreting chapter 66 and its precursors.

Instead, the district court focused on three things. First, it

emphasized that Watkins repeatedly engaged in “unacceptable behavior.”

As the district court explained, “[T]he citizens of any county have a strong

interest in ensuring that their elected officials behave appropriately.”

Second, the court noted that Watkins’s conduct could create monetary

liability for the county. Third, the district court observed that Watkins

was an attorney and the Iowa Rules of Professional Conduct prohibit “any

physical or verbal act of a sexual nature that has no legitimate place in a

legal setting” regardless of whether a sexual-harassment claim is

established as defined in the civil rights laws. Moothart, 860 N.W.2d at

604.

To be clear, sexual harassment in any form is never acceptable or

appropriate behavior. It is important that our court system, like all

institutions, protect and support victims of sexual harassment. Watkins’s

actions and statements were disgraceful, disrespectful, and inappropriate.

Certainly, we do not condone such behavior. As morally reprehensible as

we find Watkins’s behavior, this is not the standard by which we need to

analyze whether the State has met its high burden to establish whether

Watkins committed willful misconduct or maladministration in office by

creating a sexually hostile work environment. We are a court of law, not

a court of public opinion. We now analyze the facts of this case and apply

the legal standards applicable to removal actions.

Determining whether a public official engaged in willful misconduct

or maladministration in office is necessarily fact specific. As already noted,

Watkins’s conduct did not amount to a criminal violation and the claim

that Watkins committed sexual harassment has not been adjudicated. See
 27

City of Des Moines, 241 Iowa at 262, 41 N.W.2d at 39 (“A proceeding to

remove a public officer under this statute is a drastic one and is penal or

quasi-criminal in character.”). Also, many of the incidents involved

situations that occurred outside of the workplace or in the context of

Watkins’s friendship with certain witnesses rather than in the office or in

his official capacity as county attorney. See, e.g., Hospers, 147 Iowa at

714, 126 N.W. at 819 (stating removal “should be exercised only in cases

of official wrongdoing”). While not excusing Watkins’s egregious conduct,

the record does not establish that Watkins was guilty of grave misconduct,

demonstrated flagrant incompetence, or was otherwise unfit to perform his

duties as county attorney. See Meek, 148 Iowa at 680, 127 N.W. at 1026

(noting the interests of the public are imperiled when a public official’s

“administration of the office is marked by such grave misconduct or such

flagrant incompetency as demonstrates his unfitness for the position”).

Finally, what the State must prove by clear, convincing, and satisfactory

evidence is that Watkins committed his charged acts “intentionally,

deliberately, with a bad or evil purpose, contrary to known duty.” Roth,

162 Iowa at 651, 144 N.W. at 344; see Smith, 232 Iowa at 255, 4 N.W.2d

at 268.

By all accounts, the Law Office of Abraham Watkins/the county

attorney’s office was an unstructured environment. Wallingford got along

well with Watkins and considered herself a close friend to Renee. The

individuals in the office teased and played pranks on each other. Watkins,

Renee, and Wallingford discussed intimate details of their lives with one

another. They socialized with one another on a frequent basis, including

at least one or two overnight trips that included the Watkinses’ children.

The events that led to Wallingford’s resignation began on August 5.

It was on that date that Watkins and Renee were in a major verbal fight.
 28

Renee decided to remove herself and the children from the home and visit

her family out of state. Alcohol abuse by Watkins was a factor in Renee’s

decision to leave. By this time, Wallingford was fed up with the tension

and arguing in the office by all concerned. But the tipping point for her

was an insulting remark that Watkins made to her over the weekend about

her father. By Monday evening, Wallingford decided to resign from her

position and contacted Kauffman and Barchman regarding her decision.

Kauffman advised her at that time to write down all of her complaints

about Watkins, which she did the following week.

Of the fifty-plus complaints that Wallingford listed about Watkins,

approximately eleven were the incidents of sexual harassment that we

have discussed. Significantly, Wallingford acknowledged at trial that when

she was referring to a “hostile work environment” in her letter of

resignation, she was referring to the yelling and uncomfortableness in the

office and not a hostile work environment in the sexual-harassment sense.

Most of the highly inappropriate comments and photographs

Watkins needlessly and insensitively subjected Wallingford to did not

concern Wallingford herself. In addition, many of the comments were not

made during work but in various nonwork contexts such as at an evening

dinner at Watkins’s home, personal phone calls over the weekend, and at

a birthday party for Watkins’s daughter.

There is no evidence that Watkins sought to misuse his office or his

position of power or authority to obtain anything from Wallingford or

anyone else. The testimony reveals that Watkins believed his sexual

comments and jokes were made in the context of his personal relationship

with Wallingford—because he believed that was the type of relationship

they had: one in which they joked, teased, and made sarcastic remarks to

one another in the office. He was wrong of course; his comments and
 29

actions crossed way over the line. However, Watkins’s state of mind is a

relevant consideration in determining his culpability under chapter 66.

Another underlying problem was that Watkins used part of the first floor

of his home as the county attorney office. This turned out to be a bad

arrangement, but it had been approved by the Board.

Based on our close review of the entire record, we are not persuaded

that Watkins acted “with a bad or evil purpose, contrary to known duty,”

which requires more than a showing that Watkins acted intentionally.

Roth, 162 Iowa at 651, 144 N.W. at 344. Nor are we persuaded that he

committed many of the charged acts within the scope of his official

responsibilities as the county attorney. See, e.g., Hospers, 147 Iowa at

714, 126 N.W. at 819.

Therefore, we must reverse the district court’s order removing

Watkins from the office of county attorney. The State failed to meet the

high burden required to show “by clear, convincing, satisfactory evidence”

that Watkins intended to commit willful misconduct or maladministration

in office based on the record. See Smith, 232 Iowa at 255, 4 N.W.2d at

268. As we have previously held, “[c]onduct may be voluntary,

thoughtless, or even reckless, yet not necessarily willful.” Meek, 148 Iowa

at 674, 127 N.W. at 1024. While we agree that Watkins’s conduct was

voluntary, thoughtless, and offensive, the evidence does not show that he

conducted himself in such a way that it was done willfully with an evil

purpose.

Again, it is not our function on appeal to judge whether the conduct

of Watkins was unprofessional, inappropriate, offensive, or rude. Nor is it

for us to determine whether this is behavior we would expect in a private

law office, let alone in the office of an elected county attorney. Clearly, we

would hope for and expect much better. Our obligation is to follow the law
 30

that requires the State to meet its high burden of proof in removal

proceedings to establish Watkins’s “willful intent to do wrong [and] an evil

purpose upon the part of the accused . . . by clear, convincing, satisfactory

evidence.” Smith, 232 Iowa at 255, 4 N.W.2d at 268. Removal proceedings

exist primarily to protect public interests, and those interests are imperiled

when a public official’s “administration of the office is marked by such

grave misconduct or such flagrant incompetency as demonstrates his

unfitness for the position.” Meek, 148 Iowa at 680, 127 N.W. at 1026. The

State failed to meet its high burden to demonstrate corruption, negligence,

or incompetence warranting the drastic and penal remedy of removal of

Watkins from office as the Van Buren County Attorney.

Notably, our decision to reverse the district court removal of Watkins

from office

does not mean that [his] actions . . . are not beyond the reach
of the persons [he was] elected to serve. At the next election,
[his] actions are subject to review by the electorate. Under the
separation-of-powers doctrine, “electoral control [is] an
important restraint on [the] conduct [of elected officials].”

Residential & Agric. Advisory Comm., LLC v. Dyersville City Council, 888

N.W.2d 24, 51 (Iowa 2016) (Wiggins, J., concurring specially) (fourth

alteration in original) (quoting Teague v. Mosley, 552 N.W.2d 646, 650

(Iowa 1996)).

In our democratic system of government, it is vitally important that

the judiciary not be seen as imposing standards of conduct on elected

officials, even if those standards are firmly grounded. We are judges, not

guardians of behavior for elected officials. We do not believe the legislature

intended to allow courts to remove elected officials for crude, outrageous,

or even shocking behavior by itself. Nor do we believe the potential for

governmental monetary liability should be the basis for invoking chapter
 31

66. There are many instances where the conduct of public officials exposes

the government to financial liability; only a few warrant the drastic remedy

of removal. The facts of this case do not warrant such a drastic remedy

under our precedent.

Chapter 66 places significant authority in the hands of the judiciary.

We must keep in mind the possibility that this authority could be misused

in a partisan way to benefit one political faction or one elected official at

the expense of another. The judiciary should exercise considerable

restraint in such disputes.

In conclusion, based upon our de novo review of the entire record,

the evidence did not establish willful misconduct or maladministration in

office within the meaning of section 66.1A(2). The State’s evidence was

insufficient to meet the high bar necessary for the removal of Watkins from

his elected office. Consequently, we reverse the judgment of the district

court, vacate the district court’s order removing Watkins from the office of

Van Buren County Attorney, and remand the case for entry of an order

dismissing the petition for removal and reinstating Watkins as Van Buren

County Attorney.

C. Watkins’s Additional Claims Regarding His Removal. Due to

our decision reversing the district court and vacating the order for removal

of Watkins, we need not address Watkins’s remaining arguments for

reversal.

D. Attorney’s Fees. Under Iowa Code section 66.23, “[i]f the

petition for removal is dismissed, the defendant shall be reimbursed for

the reasonable and necessary expenses incurred by the defendant in

making a defense, including reasonable attorney’s fees, as determined by

the court.” Iowa Code § 66.23. The district court found that only one of

the State’s five grounds for removal actually warranted removal and, thus,
 32

denied Watkins’s motion for attorney fees. It held that attorney’s fees can

only be awarded under section 66.23 if the petition is dismissed in its

entirety. Since we now decide to vacate Watkins’s removal and remand

the case to the district court to enter an order dismissing the entirety of

the removal petition against him, Watkins is entitled to the reasonable and

necessary expenses, including attorney’s fees, that he incurred throughout

his defense. See id. On remand, the district court must determine

appropriate attorney’s fees.

IV. Conclusion.

For the aforementioned reasons, we reverse the district court’s

judgment and vacate its removal order of Watkins from the office of Van

Buren County Attorney. We also remand the case for his reinstatement

as Van Buren County Attorney, as well as a determination of Watkins’s

reimbursement for the reasonable attorney’s fees and any other

reasonable and necessary expenses he incurred throughout his defense of

these proceedings.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Waterman and Mansfield, JJ., join this opinion. Appel, J., files a

special concurrence. Cady, C.J., files a dissenting opinion in which Hecht,

J., joins. Wiggins, J., files a dissenting opinion.
 33

#17–0183, State v. Watkins

APPEL, Justice (concurring specially).

If this was an ordinary employment relationship, an employer might

well fire Abraham Watkins. But here we are dealing with an elected official.

And while the statute itself permits removal as a result of “willful

misconduct or maladministration,” Iowa Code § 66.1A(2) (2015), these

elastic terms have been dramatically narrowed by our caselaw to establish

the highest possible requirement for judicial removal.

We have required what amounts to “specific intent” to do wrong in

a criminal or quasi-criminal way and the need for heroic action by the

court to save the day. “A proceeding to remove a public officer under this

statute is a drastic one and is penal or quasi-criminal in character.” City

of Des Moines v. Dist. Ct., 241 Iowa 256, 262, 41 N.W.2d 36, 39 (1950).

“Removal is drastic and penal.” State v. Callaway, 268 N.W.2d 841, 842

(Iowa 1978). “[T]he remedy . . . is heroic in nature and relatively drastic in

a system where the usual method of removing officeholders is by resort to

the ballot.” State v. Bartz, 224 N.W.2d 632, 638 (Iowa 1974).

Yet I view this as a close case. I do not agree with all of Justice

Zager’s gloss on the facts. In particular, I agree with much of what Chief

Justice Cady says about the use of sexual humor to objectify and demean

women. I part company with Chief Justice Cady primarily as a result of

my view of the extraordinarily demanding standard for removal as

articulated in our caselaw and its application to the facts of this case. On

the narrow but critical legal issue of the appropriate standard for removal,

I am closer to Justice Zager.

Because of my differences with both major opinions in this case, I

do not join either of them. In the end, however, I conclude that Watkins’s
 34

behavior approaches, but does not cross, the heroic and stringent penal

or quasi-criminal standard for removal articulated in our historic caselaw.

I want to make clear that today should not be regarded as a

vindication for Watkins. By the narrowest of margins, he has escaped

heroic, quasi-penal judicial removal from his office of county attorney. In

short, this case should be a model for county attorneys of how not to

conduct themselves in office.
 35

#17–0183, State v. Watkins
CADY, Chief Justice (dissenting).

I respectfully dissent. Sexual harassment will not end until it is seen

as serious enough to end.

Over a century ago, in 1910, a pharmacist from Floyd County named

Matye Carragher challenged a law that disqualified female pharmacists

from selling intoxicating liquors. In re Carragher, 149 Iowa 225, 226, 128

N.W. 352, 352 (1910). We rejected her claim. Id. at 228–30, 128 N.W. at

353–54. We rejected it not because we did not strive to do justice, but
because we could not see the injustice in her claim. We simply could not

see then what is perfectly evident today. Instead, what Matye Carragher

saw as discrimination in 1910, we saw as a “natural and reasonable”

distinction in life. Id. at 229, 128 N.W. at 354. We saw the different gender

treatment in the sale of intoxicants, but only as one of many common

aspects of a given profession or business in which “individuals of one sex

are in general better fitted than those of the other sex.” Id. at 229–30, 128

N.W. at 354. The injustice seared into that view could not be seen on that

day in 1910 because the lens used to judge the facts and examine the

claim was the same old lens that had been used in the past. The smudges

of the past obscured the injustice now fully visible in hindsight.

The value of the Carragher case today is not in its holding, but in

the lesson it leaves behind. One of the most important observations that

can be drawn from our legal history is justice can only replace injustice

when a challenge to the law is examined through the lens of those who

have been forced by our law to endure the injustices of our past. Until

this is done, the past remains, as does the injustice.

The law governing the removal of public officials from office, the law

governing the role of the courts in that process, and the legal framework
 36

governing the identification of sexual harassment in the workplace all

support a finding of willful misconduct in this case. While the resolution

of this claim ultimately lies in the eye of the beholder, our law long ago

opened the door for workplace sexual harassment to be viewed as a ground

for removal. Courts must simply see it.

I. Elected Officials and the Role of the Court.

The legislature is empowered to create public offices. Hutton v.

State, 235 Iowa 52, 54, 16 N.W.2d 18, 19 (1944). Pursuant to this

authority, the legislature is free to impose qualifications or limitations on

officers as it deems expedient. The public’s right to have its preferred

individual serve in public office is, therefore, necessarily tempered by the

legislature’s authority to prescribe credentials and grounds for removal.

The state’s allegiance to the democratic process of elections is not superior

to its allegiance to the democratic process of checks and balances

established to remove errant elected officials whose conduct demonstrates

their disqualification for office.

Over 150 years ago, in the first publication of the Iowa Code, the

legislature saw fit to create a safety valve in order to remove certain public

officials whose conduct rendered them unworthy of public office. Iowa

Code § 397 (1851). Within the title governing election laws and

procedures, our legislature has vested the courts with the authority to

remove “officers for misfeasance, malfeasance or nonfeasance in office.”

1909 Iowa Acts ch. 78. The causes are “not merely penal,” as the “grounds

for removal” now codified in chapter 66 “go to the question of qualification.”

State ex rel. Kirby v. Henderson, 145 Iowa 657, 662 124 N.W. 767, 769

(Iowa 1910). The grounds for removal therefore do not stand opposed to,

but are rather integrated within, the democratic process. The integrity of
 37

Iowa’s elections is preserved when the legislature’s proclaimed

qualifications are enforced.

At issue in this case is whether the record contains sufficient

evidence of misconduct to require Abraham Watkins’s removal from office

under Iowa Code chapter 66. The question is, ultimately, one of

qualification. We must decide whether Watkins engaged in “willful

misconduct or maladministration in office” such that he acted contrary to

his duties as a county attorney and is removable under section 66.1A(2)

(2015). Under our system of government, the responsibility to interpret

section 66.1A and decide this question lies with this court.

II. Analytical Framework.

In interpreting the removal provision, we are mindful that the

legislature, through chapter 66, sought to “rid the community of . . .

corrupt, incapable or unworthy official[s].” State v. Callaway, 268 N.W.2d

841, 842 (Iowa 1978) (quoting State v. Welsh, 109 Iowa 19, 21, 79 N.W.

369, 370 (1899)). The statute’s core purpose “is for the public benefit and

to protect the public interest.” City of Des Moines v. Dist. Ct., 241 Iowa

256, 263, 41 N.W.2d 36, 39 (1950). The legislature, therefore, imbued the

courts with the power to remove certain public officials with the

understanding that, with each new generation, the meaning of

“misconduct” and “maladministration” will evolve. Cf. Griffin v. Pate, 884

N.W.2d 182, 186 (Iowa 2016) (“[T]he meanings of . . . constitutional

doctrines are not necessarily static, and [our analysis] instead considers

current prevailing standards that draw their ‘meaning from the evolving

standards . . . that mark the progress of a maturing society.’ ” (fourth

alteration in original) (quoting Trop v. Dulles, 356 U.S. 86, 100–01, 78

S. Ct. 590, 598 (1958))).
 38

Accordingly, our analysis must begin with an understanding that,

as society matures, so do its standards for worthiness and capability in

public office. We are obliged to not only look backward at the historical

principles and precedent surrounding section 66.1A, but also to look

forward and consider prevailing and evolving standards and expectations

of public officials. Cf. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Deremiah,

875 N.W.2d 728, 739 (Iowa 2016) (“From time to time we step back and

consider whether our approach to sanctions in our cases is generally

sufficient to advance the purposes of our ethics rules.”). In this

assessment, we are aided by our authority to observe legislative facts and

use those facts to inform our ruling. 5 We ground our decision not in our

own subjective principles, but in an objective review of prior and prevailing

notions of misconduct and maladministration.

III. Removing Public Officials for Willful Misconduct or
Maladministration in Office.

A. Legislative History of Iowa Code Section 66.1A. Before Iowa

became the twenty-ninth state in the Union in 1846, the legislature

promulgated territorial statutes. In 1843, the Revised Statutes of the

Territory of Iowa implicitly recognized the ability to remove an elected

official from office. See Revised Statutes of the Territory of Iowa ch. 160,

§ 8 (1843) (“That there shall be elected annually, in each and every

organized county in this territory, at the general elections, one person to

be inspector of weights and measures . . . .); id. ch. 160, § 11 (“That

5“Legislative facts are ‘those which help the tribunal to determine the content of
law and policy and to exercise its judgment or discretion in determining what course of
action to take.’ ” State v. Henze, 356 N.W.2d 538, 540 n.1 (Iowa 1984) (en banc) (quoting
Kenneth Culp Davis, Judicial Notice, 55 Colum. L. Rev. 945, 952 (1955)). “[L]egislative
facts are not concerned with particular problems of individuals, but involve a
determination of what is in the best interests of the public generally.” McMurray v. City
Council, 642 N.W.2d 273, 277 (Iowa 2002).
 39

whenever the inspector of weights and measures mentioned in this act,

shall resign or be removed from office . . . .” (Emphasis added.)).

Following statehood, the first Iowa Code was published in 1851.

Within Title IV, governing “elections, qualifications for office, contested

elections, vacancies, etc.,” Iowa Code Analysis (1851), the legislature

included a provision governing the removal of certain elected officials from

office. Iowa Code § 397 (1851). The legislature provided, “All county

officers, including justices of the peace, may be charged, tried, and

removed from office for official misdemeanors in the manner and for the

causing [causes] following: . . . For wilful mal-administration in office.” Id.

(first alteration in original). The legislature later extended the statute to

“[a]ll county, township, city and town officers, elected or appointed.” Iowa

Code § 1251 (1897). As well, the legislature announced that such officers

may be removed for “wilful misconduct or maladministration in office.” Id.

§ 1251(7).

In 1909, the legislature created a comprehensive removal framework

for elected officials. 1909 Iowa Acts ch. 78 (codified at Iowa Code §§ 1258-

c to 1258-k (Supp. 1913)). The Act specifically vested the courts with the

authority to remove “[a]ny county attorney, sheriff, mayor, police officer,

marshal or constable . . . [f]or wilful misconduct or maladministration in

office.” Id. ch. 78, § 1. In 1924, the legislature again broadened the

provision, giving the courts the authority to remove “[a]ny appointive or

elective officer, except such as may be removed only by impeachment,

holding any public office in the state or in any division or municipality

thereof . . . [f]or wilful misconduct or maladministration in office.” Iowa

Code § 1091(2) (1924).
 40

Since 1924, the provision has remained virtually unchanged,

although it has been renumbered several times. Today, the provision is

codified at section 66.1A and reads as follows:

Any appointive or elective officer, except such as may be
removed only by impeachment, holding any public office in
the state or in any division or municipality thereof, may be
removed from office by the district court for any of the
following reasons:

1. For willful or habitual neglect or refusal to perform
the duties of the office.

2. For willful misconduct or maladministration in
office.

3. For corruption.

4. For extortion.

5. Upon conviction of a felony.

6. For intoxication, or upon conviction of being
intoxicated.

7. Upon conviction of violating the provisions of
chapter 68A.

Iowa Code § 66.1A (2015).

In sum, since Iowa’s inception, our legislature has seen fit to

supplement its election laws with corresponding measures to remove
elected officials for certain types of misconduct. Contrary to the plurality’s

premise that the judiciary may not “impos[e] standards of conduct on

elected officials,” the legislature has always tasked the courts with

removing officials whose conduct demonstrates their disqualification for

office. Indeed, for the entirety of Iowa’s history, our legislature has

instructed that elected officials assume their offices subject to a number

of qualifications, including the condition they refrain from willful

misconduct and maladministration in office.
 41

B. Precedent.

1. Standard for removal. Despite section 66.1A’s long history, we

have scarcely been called to interpret its directives. The most

comprehensive analysis of the statute and its purposes comes from three

cases decided over a century ago in 1910. First, in State ex rel. v. Meek,

citizens brought suit to remove the treasurer of Van Buren County,

arguing he collected taxes for a number of days beyond the deadline

without imposing the statutory late fees. 148 Iowa 671, 672, 127 N.W.

1023, 1024 (1910). When the treasurer at trial admitted he indeed

collected such taxes, the court “excluded all evidence tending to show good

faith and absence of evil motive.” Id. On appeal, we considered “whether

the acts thus freely admitted constitute ‘willful misconduct in office’ within

the meaning of the statute.” Id. at 673, 127 N.W. at 1024.

After surveying a number of foreign interpretations of “willful,” both

in the criminal and official misconduct contexts, we concluded “when

willfulness is charged as a ground for removing an officer from his office,

his good faith and innocence of intentional wrong is a question upon which

he is entitled to be heard in evidence.” Id. at 679, 127 N.W. at 1026.

Further, we explained “the primary purpose of the statute is the protection

of public interests,” and “those interests are not imperiled by acts of a

trifling or unimportant character occasioning no injury.” Id. at 680, 127

N.W. at 1026. Indeed, “[s]uch peril only arises when [the officer’s]

administration of the office is marked by such grave misconduct or such

flagrant incompetency as demonstrates his unfitness for the position.” Id.

“The very object of this statute is to rid the community of a corrupt,

incapable, or unworthy official.” Id. (quoting Welsh, 109 Iowa 21, 79 N.W.

370). The legislature did not intend to remove officers for “technical

violations against which an ordinary civil action in damages affords a
 42

complete remedy.” Id. at 682, 127 N.W. at 1027. Rather, “[t]he essential

inquiry is whether the record shows the appellant conclusively and as a

matter of law guilty of such willful misconduct in office that public

interests require his removal.” Id. at 684, 127 N.W. at 1027–28.

Second, in Henderson, we placed the removal statute in context with

the legislature’s authority to prescribe qualifications. 145 Iowa at 662–65,

124 N.W. at 769–70. In Henderson, the state sought to remove the mayor

of the City of Marengo for intoxication. Id. at 658, 124 N.W. at 768. We

explained, “[T]he act in question is not merely penal. The grounds of

removal go to the question of qualification as such qualification shall be

indicated by the specified acts of misconduct.” Id. at 662, 124 N.W.2d at

769. We also explained that although the electors may have found the

mayor “to be a man of strong personality and of many commendable

qualities[,] . . . the power of selection of the majority in such a case is not

absolute. It is subject to the power of the Legislature to prescribe

qualifications.” Id. at 665, 124 N.W. at 770.

Finally, in State ex rel. Gebrink v. Hospers, we stressed the severity

of removing an elected official from office. 147 Iowa 712, 714, 126 N.W.

818, 819 (1910). In Hospers, citizens brought suit to remove a county

attorney after a grand jury declined to return an indictment against a

corporation that had allegedly engaged in price discrimination. Id. at 713,

126 N.W. at 819. Although the citizens were frustrated by the lack of

criminal consequences, we explained a prosecutor has

[a] certain degree of discretion in these respects . . . and
unless he abuses it or there is a clear showing of corruption,
or negligence, or incompetence in the administration of his
office, he is not amenable to proceedings for his removal.

Id. at 714, 126 N.W. at 819. Significantly, we explained removing an

official “is a very drastic” remedy, as the effect is “not only to deprive an
 43

individual of an office to which he has been regularly chosen, but also to

deprive the people of the services of the man whom they have selected for

the position.” Id. Invocation of the statute “should be exercised only in

cases of official wrongdoing established by clear and satisfactory

evidence.” Id. However, we also held that the unsuccessful citizens should

not be assessed the costs of the proceedings. Id. at 715, 126 N.W. at 819.

In bringing the suit, the citizens “speak for the public and the law, and the

courts take cognizance of their complaints not to remedy their private

wrongs, but to conserve public interests.” Id.

2. Instances of willful misconduct. Following the 1910 cases, we

repeatedly affirmed that officers shall not be removed unless the alleged

misconduct was committed willfully. See State ex rel. Fletcher v. Naumann,

213 Iowa 418, 427, 239 N.W. 93, 97 (1931) (“[T]here was no showing that

Naumann acted willfully, or that he did anything that would make it

necessary . . . to ‘rid the community of a corrupt, incapable, and unworthy

official[].’ ”) (quoting Meek, 148 Iowa at 680, 127 N.W. at 1026)); State ex

rel. Cash v. Canning, 206 Iowa 1349, 1353, 221 N.W. 923, 924–25 (1928)

(“There can be no condonment of willful misconduct or corruption in office,

even though the amount involved may appear to be inconsequential and

trivial. Peculation, as a badge of misconduct and corruption, is not to be

measured by its extent or grossness. There must, however, be a willful

intent to do wrong or a maladministration of office to warrant a summary

removal of a public officer.”); State ex rel. Cochran v. Zeigler, 199 Iowa 392,

396, 202 N.W. 94, 95 (1925) (“The word ‘willful,’ as used in this connection

. . . impl[ies] knowledge on the part of the officer, together with a purpose

to do wrong. . . . Not every technical violation of a statute or of official duty

will, however, justify the summary removal of the officer.” (Citation

omitted.)).
 44

Yet, in State ex rel. Duckworth v. Smith, we explained the willfulness

principles announced in Naumann, Canning, Zeigler, and Meek do not

“require as an essential element of willfulness a greater scienter in the

doing of an act than the character of the act permits.” 219 Iowa 5, 7, 257

N.W. 181, 182 (1934). In Smith, a county treasurer took public funds for

his private use more than twenty times, yet claimed the takings were not

willful as contemplated by the removal statute. Id. at 6–7, 257 N.W. at

181–82. The treasurer believed the county owed him additional salary

payments and some of the withdrawals occurred during periods where the

treasurer believed he was owed payments. Id. at 8, 257 N.W. at 182. We

held it to be “beside the point” that “the county may have owed him salary

. . . for the salary of the treasurer must be paid on warrants drawn by the

county auditor. The treasurer cannot help himself to public funds even in

the payment of his salary.” Id. Indeed, “[w]e [were] at a loss to discover

any worthy motive which could have prompted him to take public money

for his private use.” Id. at 7, 257 N.W. at 182. After looking at “[t]he whole

picture,” we determined the county treasurer’s conduct “present[ed] a case

in which ‘willfulness’ must be found to be present.” Id. at 7–8, 257 N.W.

at 182.

In 1974, we concluded removal was justified for three county

supervisors. State v. Bartz, 224 N.W.2d 632, 639 (Iowa 1974). In Bartz,

the supervisors (1) accepted gifts and other perks from persons who

regularly contracted with the county, (2) maintained loosely managed

slush funds instead of depositing all funds with the county treasurer, and

(3) submitted mileage claims in significant excess of what was actually

driven. Id. at 635, 638–39. We explained the State must provide “clear,

satisfactory and convincing” evidence that the supervisors committed

misconduct “willfully and with an evil purpose.” Id. at 638. Although the
 45

trial court concluded the supervisors acted “without evil or corrupt motives

. . . we reach[ed] an opposite conclusion.” Id. Our de novo review revealed

evidence that proved the supervisors’ conduct “fell well below the

standards of conduct expected of public officials.” Id.

Finally, in 1978, we removed a sheriff from office for willful

misconduct and maladministration in office. Callaway, 268 N.W.2d at

849. In Callaway, the state petitioned to remove the Hardin County Sheriff

based on five incidents in which he brutalized or otherwise used excessive

force against inmates and citizens. Id. at 842–46. The sheriff admitted to

making a “mistake” in two such incidents, but “defend[ed] his use of force

in the other incidents.” Id. at 847. Thus, the sheriff subjectively believed

his force was necessary and not contrary to his duties. We found the

sheriff’s justification defense “depend[ed] in part upon his credibility,” but

“also depend[ed] on distorting the standard governing a law enforcement

officer’s right to use force to make an arrest and restrain a prisoner.” Id.

We not only found the state’s witnesses to be more credible, but also

determined the sheriff “plainly breached” officer force standards “in the

five principle incidents relied on by the State.” Id. Furthermore, we found

the sheriff’s subjective intent “distort[ed] the standard governing a law

enforcement officer’s right to use force to make an arrest and restrain a

prisoner.” Id. at 847. We explained,

This is not a case of a momentary lapse or of a few mistakes
in judgment in routine matters. It is a case of repeated,
deliberate brutality to prisoners. The conduct shown here is
antithetical to the professionalism which the public requires
and generally receives from law enforcement officers. In fact,
it contradicts the standards which peace officers have
established for themselves.

Id. at 848. Thus, because “[t]he authorities uniformly agree[d] that such

misconduct by a law enforcement officer is a ground for ouster from office,”
 46

the state met its burden in proving the sheriff “was guilty of willful

misconduct in office.” Id. at 847–48.

Against this backdrop of legislative intent and precedent, we proceed

to consider the nature of sexual harassment and whether it falls within

the types of misconduct contemplated by section 66.1A.

IV. Sexual Harassment.

“Without question, when a supervisor sexually harasses a

subordinate because of the subordinate’s sex, that supervisor

‘discriminate[s]’ on the basis of sex.” Meritor Sav. Bank, FSB v. Vinson,

477 U.S. 57, 64, 106 S. Ct. 2399, 2404 (1986) (alteration in original).

When Congress enacted Title VII of the Civil Rights Act of 1964, it intended

“to strike at the entire spectrum of disparate treatment of men and

women.” Id. (quoting City of L.A. Dep’t of Water & Power v. Manhart, 435

U.S. 702, 707 n.13, 98 S. Ct. 1370, 1375 n.13 (1978)). Sex discrimination

has always encompassed more than a threat of economic loss or other

tangible adverse employment action. Title VII—and the Iowa Civil Rights

Act (ICRA)—“afford[] employees the right to work in an environment free

from discriminatory intimidation, ridicule, and insult.” Id. at 65, 106 S.

Ct. at 2405.

“ ‘A hostile work environment is a cumulative phenomenon,’ and a

series of individual episodes of inappropriate behavior eventually can

amount to a hostile environment.” Simon Seeding & Sod, Inc. v. Dubuque

Human Rights Comm’n, 895 N.W.2d 446, 470 (Iowa 2017) (quoting Alvarez

v. Des Moines Bolt Supply, Inc., 626 F.3d 410, 421 (8th Cir. 2010)).

Although “[a] few isolated or sporadic [comments] over a long period of

time,” do not rise to the level of actionable discrimination, “repeated

harassing remarks may be sufficient to establish hostile working

environment.” Id.
 47

The effects of hostile-work-environment discrimination are known

and severe. Women who are sexually harassed “feel humiliated, degraded,

ashamed, embarrassed, and cheap, as well as angry.” Catharine A.

MacKinnon, Sexual Harassment of Working Women 47 (1979) [hereinafter

MacKinnon]. Women do not “want to be sexually harassed at work. Nor

do they, as a rule, find it flattering.” Id. “Women’s confidence in their job

performance is often totally shattered,” and “[t]hey are left wondering if the

praise they received prior to the sexual incident was conditioned by the

man’s perception of the sexual potential in the relationship.” Id. at 51.

Importantly, “Title VII comes into play before the harassing conduct leads

to a nervous breakdown.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 22, 114

S. Ct. 367, 370 (1993). Harassment need not “seriously affect employees’

psychological well-being” in order to “detract from employees’ job

performance, discourage employees from remaining on the job, or keep

them from advancing in their careers.” Id. at 22, 114 S. Ct. at 371.

Over time, employers have gleaned that it is no longer permissible

to enunciate blatant prejudices in the workplace. However, “these feelings

remain under the surface, often taking the form of humor.” MacKinnon,

at 52 (quoting Eleanor L. Zuckerman, Masculinity and the Changing

Woman, in E. L. Zuckerman, ed., Women and Men: Roles, Attitudes and

Power Relationships 65 (1975)). “Humor . . . has been a major form of”

sexual harassment’s trivialization, and is “a major means through which

its invisibility has been enforced.” Id. Indeed, framing derogatory and

discriminatory comments as “jokes” permits courts to characterize the

misconduct as merely “crude,” rather than discriminatory. Men are just

joking, and women should lighten up.

Sexual harassment of an employee and, therefore, discrimination

against an employee on the basis of sex, is no mere “technical violation[].”
 48

Meek, 148 Iowa at 682, 127 N.W. at 1027. Consistent state and

congressional efforts to eradicate and punish sexual harassment establish

society’s firm disavowal of this type of misconduct in the workplace. In

1991, Congress amended Title VII to allow successful sexual harassment

plaintiffs to recover punitive damages. Civil Rights Act of 1991, Pub. L.

No. 102–166, § 1, 105 Stat. 1071, 1071 (1991) (finding “additional

remedies under Federal law are needed to deter unlawful harassment and

intentional discrimination in the workplace”). In 1992, two years after this

court recognized a sexual harassment cause of action under the Iowa Civil

Rights Act, see Lynch v. City of Des Moines, 454 N.W.2d 827, 833 (Iowa

1990), the Iowa legislature specifically acted to prohibit the sexual

harassment of state employees. See 1992 Iowa Acts ch. 1086, § 2 (codified

at Iowa Code § 2.11 (1993)) (commanding each house of the general

assembly to implement sexual harassment training and grievance

procedures); id. § 3 (codified at Iowa Code § 19B.12) (expressly barring

state employees from engaging in quid pro quo and hostile work

environment harassment).

Today, lawmakers continue to emphasize that sexual misconduct

has no place in government offices. In October and November of 2017,

both the United States House of Representatives and Senate introduced

measures to combat sexual harassment in government offices.

Congressional Sexual Harassment Training Act, H.R. 4155, 115th

Congress (2017); STOP Sexual Harassment Resolution, S. Res. 323, 115th

Congress (2017). Across the country, state legislatures have continued to

adopt resolutions and enact policies that target and punish harassment
 49

in public offices. 6 In the private sector, professional associations across

all disciplines have proffered “zero tolerance” policies aimed at eradicating

sexual harassment in their respective fields. 7

6See, e.g., S.R. 51, Reg. Sess. 2018 (Ala. 2018) (adopting a legislative policy on
sexual harassment); H.R. 18–1005, Seventy-first Gen. Assemb., 2d Reg. Sess. (Colo.
2018) (expelling a state representative for violating legislative sexual harassment policy);
H.R. 21, 149th Gen. Assemb. (Del. 2018) (adopting a legislative policy on sexual
harassment); H.B. 973, 2017–2018 Reg. Sess. (Ga. 2018) (extending legislative sexual
harassment policy to registered lobbyists); H.R. 687, 100th Gen. Assemb. (Ill. 2017)
(creating a sexual harassment task force); H.B. 1309, 120th Gen. Assemb., 2d Reg. Sess.
(Ind. 2018) (requiring annual sexual harassment training for members of the general
assembly); H.B. 524, 2018 Reg. Sess. (La. 2018) (enacting sexual harassment policy for
all public officers and employees); H. 3983, 190th Gen. Ct. (Mass. 2017) (ordering
comprehensive review of all House of Representatives sexual harassment policies); S.
2262, 190th Gen. Ct. (Mass. 2017) (ordering comprehensive review of all Senate sexual
harassment policies); H.R. 7678, 2018 Gen. Assemb. (R.I. 2018) (creating a special
legislative commission to study sexual harassment); H.R. 5, 2017–2018 Leg. Sess. (Vt.
2017) (establishing a sexual harassment prevention panel to review complaints against
members of the House); H.B. 371, 2018 Reg. Sess. (Va. 2018) (requiring all legislative
branch employees to complete sexual harassment training every two years); H.B. 2759,
65th Leg., 2018 Reg. Sess. (Wash. 2018) (establishing the Washington state women’s
commission and ordering the review of sexual harassment policies).
7See, e.g., ACS Governing Documents, at 51 (Am. Chem. Soc’y 2018) (“Harassment
of any kind, including but not limited to unwelcome sexual advances, requests for sexual
favors, and other verbal or physical harassment will not be tolerated.”); Appendix 3.2:
Policy on Prof’l Conduct & Prohibition Against Harassment (Am. Dental Ass’n) (“The ADA
absolutely prohibits sexual harassment . . . .”); Code of Prof’l Conduct r. 1.400.010 (Am.
Inst. of Certified Pub. Accountants 2016) (“A member would be presumed to have
committed an act discreditable to the profession . . . if a final determination . . . is made
by a court . . . that a member has violated any antidiscrimination laws . . . including those
related to sexual and other forms of harassment.”); Am. Med. Ass’n Code of Med. Ethics
Op. 9.1.3 (“Sexual harassment in the practice of medicine is unethical. . . . Physicians
should promote and adhere to strict sexual harassment policies in medical workplaces.”);
ANA Position Statement: Sexual Harassment (Am. Nurses Ass’n 1993) (“ANA believes that
nurses and students of nursing have a right to and responsibility for a workplace free of
sexual harassment.”); Code of Ethics Canon 8 (Am. Soc’y of Civil Eng’rs 2017) (“Engineers
shall not engage in discrimination or harassment in connection with their professional
activities.”); Code of Ethics Statement (Event Serv. Prof’ls Assoc.) (“We will not engage in
or condone any form of harassment or discrimination.”); IEEE Polices § 9.26 (Inst. of Elec.
& Elecs. Eng’rs 2018) (prohibiting “[d]iscrimination, [h]arassment and [b]ullying against
any person for any reason, for example, because of . . . gender”); Model Rules of Prof’l
Conduct r. 8.4(g) (Am. Bar Ass’n 2016) (“It is professional misconduct for a lawyer to . . .
engage in conduct that the lawyer knows or reasonably should know is harassment or
discrimination on the basis of . . . sex . . . .”); Code of Conduct & Sexual Harassment
Policy (Nat’l Ass’n of Realtors) (“The National Association fully supports the rights and
opportunities of all its . . . members and employees to work in an environment free from
discrimination and without subjugation to sexual harassment.”).
 50

Employment discrimination statutes and private sexual harassment

policies represent a collective decision that all persons, regardless of age,

gender, race, religion, disability, etc., deserve to live dignified, autonomous

lives. Title VII and the ICRA are not workplace codes of conduct or matters

of “public opinion”—they are necessary vehicles for social and economic

mobility. When women are subjected to hostile work environments, they

are invariably forced to make a decision between unemployment and

intolerable working conditions. When women must move from one job to

the next, seeking a workplace ambiance free from discriminatory insult,

they are prevented from saving for retirement or their children’s college

educations. They have inconsistent access to healthcare for themselves

and their families. When women must continually start anew with new

companies, they are prevented from moving up the ranks and attaining

positions of authority. Beyond the dignitary harms suffered, when sexual

harassment is allowed to endure, women must work harder to stay afloat

while men grow and advance in status.

Sexual harassment was once a putative consequence of working

while female. However, legislative enactments, private measures, and

public discourse conclusively demonstrate that society has evolved.

Sexual misconduct in the workplace, especially in a government

workplace, is no longer tolerated. County employees, like all other

employees, have a statutory and constitutional right to be free from

discrimination. It is in the image of this clear, ubiquitous public interest

that we ground our understanding of misconduct and maladministration

in office. Yet, in the end, it is left to the courts to recognize sexual

harassment and apply the law to remove it in all aspects of life.
 51

V. Application.

A. Misconduct. The unvarnished record reveals the depth of the

abhorrent conduct at the center of this case. This conduct occurred in the

presence of those who worked in the office of a public official and those

who entered the office for business.

At trial, five people testified to observing Watkins in the office in his

underwear on different occasions. These people not only included Jasmin

Wallingford, the office legal assistant, but also two women who cleaned the

office and a client and his wife who had stopped into the office one morning

to pick up documents. The two women who cleaned the office were Amish

and had once confronted Watkins about being uncomfortable with seeing

him in his underwear in the office.

Wallingford, who was twenty-years-old, was the target of most of the

conduct at issue. Watkins once showed Wallingford a video he had

recorded of his wife squirting breastmilk in Wallingford’s car. On another

occasion, he showed Wallingford a photograph of his wife’s vagina, as well

as a photograph of his wife naked from the waist down. Watkins also kept

naked photographs of his wife on his desk computer and would look at

them during office hours. Virginia Barchman, the assistant county

attorney, entered his office on one occasion to speak with him and

observed one of the photographs on his computer screen.

Watkins inquired into Wallingford’s doctor appointments and asked

her on three or four occasions if “her vagina was still broke.” Watkins told

Wallingford, during work, that her “boobs [were] distracting him” and that

she “should wear that shirt out” if she “ever went clubbing.” Watkins

complained to Wallingford that his wife never wanted to have sex and that

he “just wished that he had a wife that had sex with him all the time.”

Watkins informed Wallingford that he kept naked pictures of former
 52

girlfriends on his phone and enjoyed looking at them. Watkins made a

sexually driven reference about a floor cleaner called “Bona” in the

presence of Wallingford and the young Amish women who cleaned the

office.

Watkins also used sexually graphic and demeaning rhetoric in the

workplace when discussing other women. On one occasion, after Watkins

made an inappropriate comment at a birthday party, he told Wallingford

the following Monday during work that he needed to see if this courthouse

employee “wore a padded bra or if her boobs were really that big.” On

another occasion, Watkins announced that a local female attorney with

initials “T.Q.” should be referred to as “T. Queef,” which refers to a term

that describes the emission of air from the vagina.

Just as all of this evidence was necessarily filtered through the lens

of those who witnessed it, it again becomes filtered through the lens of

those who judge it. For the plurality, its perspective is not so much

affected by what it saw in the evidence, as by what it saw as absent from

the evidence. It saw crudities, but it also saw a workplace environment in

which Wallingford’s job was not conditioned on fulfilling Watkins’s sexual

gratification. It saw the vulgarities in Watkins’s conduct, but it also saw

an absence of quid pro quo sexual harassment. It saw vulgarities, but

looked and could not find an employer who misused “his office or his

position of power or authority to obtain anything from Wallingford.”

Furthermore, it saw the workplace rhetoric by Watkins as “insensitive,”

but rhetoric that “did not concern Wallingford herself.” It saw Watkins as

“insensitive,” but saw Wallingford as having more reasons for disliking her

workplace environment than just the rhetoric and conduct engaged in by

Watkins.
 53

The filter used by the plurality narrows the definition of sexual

harassment, and in turn, misconduct, and fails to understand sexual

harassment from the perspective of the victim. What the plurality does

not see through its lens is that the misuse of a position of power or

authority does not require quid pro quo conduct. Power and authority are

equally exploited when they are used to create a workplace environment

riddled with discriminatory insults. What, if not power, could embolden

an employer to entirely disregard fundamental boundaries and

discriminate on the basis of sex with no consideration for the

consequences?

Sexual harassment in the workplace will not be eliminated until it

is first understood for what it is. It is not so much “an issue of right and

wrong [as] an issue of power.” MacKinnon, at 173. The fundamental

problem is not the content of workplace conversation, but how sexually

explicit rhetoric is used in the workplace by those in power at the expense

of others. Id. An employer who “[seeks] to misuse his office or his position

of power or authority to obtain” something from an employee certainly

harms the employee, but an employee is equally aggrieved by a workplace

dominated by derogatory slights.

Likewise, a lens that sees sexual comments or “jokes” not specifically

directed at the employee herself as “insensitive” but tolerable trivializes the

lived experiences of those who have been forced to withstand them.

Indeed, a finding that Watkins’s comments “did not concern Wallingford

herself” rests on a defunct and antiquated view of hostile work

environments. Watkins was speaking about women. He was commenting

on the bodies of women. He was objectifying and sexualizing women.

Wallingford was required to endure a slew of degradations directed solely

at women—a class of which she is a member.
 54

Lastly, Wallingford may well have had other reasons for disliking her

work environment on top of Watkins’s harassment, but those reasons do

not negate the severity of Watkins’s behavior. Employees need not refrain

from complaining about other frustrating behaviors in order for a court to

take a sexual harassment complaint seriously.

In the end, Watkins’s misconduct amounted to a hostile work

environment when viewed through a lens that sees the complete picture.

He consistently, over the course of months, made unwelcome and sexually

charged comments to Wallingford and in her presence and engaged in

misconduct in office.

B. Willful. The state of mind or willfulness behind conduct can be

difficult to see. As with defining misconduct, it often depends on a

measured view of all the facts and circumstances surrounding the

conduct. See Nelson v. James H. Knight DDS, P.C., 834 N.W.2d 64, 79–80

(Iowa 2013) (Cady, C.J., concurring specially) (finding the specific,

personal relationship between an employer and employee animated an

adverse employment action, rather than actionable discrimination).

At the outset, no evidence exists in the record to support Watkins’s

belief that his rhetoric and conduct were welcome or appropriate in the

workplace. Wallingford never commented on Watkins’s anatomy or made

unsolicited, sexually charged comments. Although Watkins characterizes

his law office as one of joking and familiarity, Wallingford’s contribution to

that atmosphere was vastly different and consisted of such conduct as

wearing a funny wig on April Fools’ Day and once taping an air horn to

Watkins’s chair. Accordingly, any view that Watkins’ comments were part

of an established atmosphere has no support in the record. Likewise, the

complete and utter one-sidedness of the degrading rhetoric erodes any

inference that Watkins’s harassment was not willful.
 55

Overall, the plurality relies on various common responses to claims

of sexual harassment in the workplace to support its finding that the

conduct and rhetoric of Watkins was not willful. It observed that Watkins’s

conduct did not constitute a crime. It could not find any caselaw that

found willful misconduct under similar facts. It saw the conduct engaged

in by Watkins to be his personality and not directed at the attributes of

Wallingford as a person. It saw a workplace that allowed Watkins to feel

comfortable to engage in such conduct and a workplace in which

Wallingford felt comfortable to engage in nonsexual humor from time to

time.

The lens used to reach the plurality’s decision did not observe or

factor in the powerful dynamics of employer authority and control over a

subordinate in the workplace. It did not see that Wallingford hoped to be

a lawyer or her hope that a position in a law office and a positive

association with a county attorney would help advance her goal of

attending law school. It did not see how Watkins’s clout informed

Wallingford’s desire to maintain a friendship with Watkins and his wife, as

a poor relationship could have lasting consequences for her professional

career in a county with just over 7000 people. It did not see how the

dynamics of subordinates can minimize employer misconduct and

perpetuate sexual harassment in the workplace.

Watkins concedes he did not misspeak, nor was he naïve to the

sexual connotations of his comments. Indeed, testimony demonstrates he

was aware of the inappropriate nature of his comments to employees.

Watkins’ former child-care worker, Tayt Waibel, testified she once had

missed a phone call from Watkins while she was in the shower. She

returned his call and explained why she did not answer. In response,

Watkins told Waibel she should have FaceTimed him while she was in the
 56

shower. Watkins then stated, “[T]his is probably why I’m in trouble for

sexual harassment.”

In Callaway, we found the sheriff’s view that his force was justified

depend[ed] in part upon his credibility,” but “also depend[ed] on distorting

the standard governing a law enforcement officer’s right to use force to

make an arrest and restrain a prisoner.” 268 N.W.2d at 847. Here,

Watkins’s position similarly depends in part on his credibility. Watkins’s

admission to Waibel undermines his testimony that his behavior was

innocent and reasonable.

Moreover, in Callaway, we looked to several sources governing an

officer[’]s duty to refrain from excessive force. Id. at 847–48. We noted the

common law standard found in a prominent legal encyclopedia, see 6A

C.J.S. Arrest § 49, the statutory standard, see Iowa Code § 755.2 (1975),

and the Law Enforcement Code of Ethics, see Louis B. Schwartz & Stephen

R. Goldstein, Law Enforcement Handbook for Police 48 (1970). Callaway,

268 N.W.2d at 847–48. We charged the sheriff with knowledge of these

standards and determined his consistent deviation from them amounted

to a willful abdication of his duties as a law enforcement officer. Id. Here,

Watkins is charged with being aware of the standards governing his

conduct as a public official and employer. The rules of professional

conduct expressly prohibit attorneys from engaging in sexual harassment.

Iowa R. Prof’l Conduct 32:8.4(g). The ICRA and Title VII prevent all

employers, including state employers, from engaging in hostile work

environment harassment. Iowa Code § 216.6(1)(a) (2015); 42 U.S.C.

§ 2000e-2(a)(1) (2012). As in Callaway, Watkins is charged with

knowledge of these standards, and his consistent deviation from them is

evidence of a willful abdication of his duties as an officer and employer.
 57

Watkins repeatedly, and knowingly, made sexually charged

comments to his employees and created a hostile work environment.

Despite Watkins’s consistent and intentional deviation from the governing

standards, the plurality nevertheless concludes he did not act with an “evil

purpose” when harassing Wallingford.

What benign intent is consistent with harassment? The plurality

requires a “greater scienter in the doing of an act than the character of the

act permits.” Smith, 219 Iowa at 7, 257 N.W. at 182. Harassment, by its

nature, is not done benevolently or innocuously. It requires more than an

occasional aberration or momentary lapse in judgment. Harassment

exists when an employer repeatedly, over the course of time, acts with

such disregard that it alters the conditions of employment.

When Watkins told Wallingford that her breasts were distracting

him, the plurality saw an innocent intention. When Watkins repeatedly

entered the workplace in his underwear, when his bedroom and a restroom

were located upstairs, the plurality saw an “unstructured environment.”

When Watkins told Wallingford, during work hours, that he wondered

whether the courthouse clerk’s breasts “were really that big,” the plurality

saw a plausible blunder. When the character of Watkins’s misconduct

over the entire term of Wallingford’s employment “presents a case in which

‘willfulness’ must be found to be present,” the plurality ultimately found

no knowledge of wrongdoing. Smith, 219 Iowa at 7–8, 257 N.W. at 182.
It is, of course, not always easy to step outside of oneself and see
bias when none was intended or see injustice when the opposite was
envisioned. But such is the nature of an evolving society in which
standards of conduct once decreed as “natural and reasonable” are now
understood to be insidious and arbitrary. Carragher, 149 Iowa at 229, 128
N.W. at 354. There are times when such a failure of perspective may be
 58

viewed with generosity in hindsight, but today’s opinion is not such an
instance.
The recognition and prohibition of sexual harassment is far from a
recent revelation. It has long been understood that making unsolicited
comments about the breasts of an employee is illegal and degrading. That
showing a photograph of your naked wife and of her vagina to an employee
is unlawful and demeaning. Today’s decision is intimately tied to a bygone
era of law that shielded men who knew better, at the expense of their
female employees, who were required to abandon their jobs or forced to
accept harassment as a condition of employment.
While the plurality sees itself as upholding the integrity of elections,
such a view weakens the checks and balances of government. The very
purpose of the removal statute is to undo an election. Moreover, the
opinion reveals the enduring vestiges of de jure discrimination. We were
able to see with clarity in 1978 that no sheriff could possibly believe that
brutalizing a prisoner is permissible, yet still cannot see with clarity today
that no employer could possibly believe that creating a workplace
atmosphere defined by degrading women is permissible. One view is not
less serious than the other. Both are but different forms of willful
misconduct. It is time for but one view to exist. The prolonged period of
societal disinterest in the plight of working women must no longer obscure
how inappropriate comments about one woman unquestionably concerns
all women in the workplace.
Watkins’s conduct was more than “inappropriate” and
“disrespectful”—it was discriminatory. He deliberately subjected
Wallingford to a barrage of indignities directed solely at women. An officer
who intentionally discriminates on the basis of sex commits grave
misconduct in office and is removable under section 661.A.
Hecht, J., joins this dissent.
 59

#17–0183, State v. Watkins

WIGGINS, Justice (dissenting).

A majority of the members of this court holds the allegations of

sexual harassment do not amount to “willful misconduct or

maladministration in office” warranting removal. I disagree with this

conclusion and must dissent. I would find the State provided sufficient

evidence to show willful misconduct on the part of Abraham Watkins. My

starting point is the statute.

I. Iowa Code Section 66.1A(2).

This case turns on the proper interpretation of Iowa Code section

66.1A(2). This section provides,

Any appointive or elective officer, except such as may be
removed only by impeachment, holding any public office in
the state or in any division or municipality thereof, may be
removed from office by the district court for any of the
following reasons:

....

2. For willful misconduct or maladministration in
office.

Iowa Code § 66.1A(2) (2015).

We defined the phrase “willful misconduct or maladministration in

office” in State v. Callaway, 268 N.W.2d 841, 842 (Iowa 1978). In defining

the phrase, we said,

In order to establish “willful misconduct” as a ground
for removal, it is necessary to show a breach of duty
committed knowingly and with a purpose to do wrong. This
requires proof of grave misconduct. Of course, such
misconduct would also be “maladministration in office” within
the meaning of [section 66.1A(2)].

Id. (citations omitted).
 60

II. Types of Sexual Harassment: Quid Pro Quo and Hostile Work
Environment.

Our laws prohibit sexual discrimination. E.g., Iowa Code

§ 216.6(1)(a). The plurality correctly points out the law prohibits two types

of sexual discrimination in the form of sexual harassment—quid pro quo

and hostile work environment. See McElroy v. State, 637 N.W.2d 488, 499

(Iowa 2001); see also Vivian v. Madison, 601 N.W.2d 872, 873 (Iowa 1999)

(stating the legislature modeled the Iowa Civil Rights Act after Title VII of

the United States Civil Rights Act); Lynch v. City of Des Moines, 454 N.W.2d

827, 833 (Iowa 1990) (holding that sexually hostile work environment is

illegal sex discrimination pursuant to the Iowa Civil Rights Act). The

former is a “type of harassment [that] is linked to the grant or denial of

tangible aspects of employment.” McElroy, 637 N.W.2d at 499. The latter

involves “sexual harassment [that] is so ‘severe or pervasive [as] “to alter

the conditions of [the victim’s] employment and create an abusive working

environment.” ’ ” Id. (third alteration in original) (quoting Meritor Sav.

Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S. Ct. 2399, 2405 (1986)).

Although the plurality recognizes the two types of sexual

harassment, it downplays the detrimental effects of hostile work
environment. In fact, the plurality reasons the record does not show that

Watkins sought to misuse his authority as county attorney to obtain

sexual favors from Jasmin Wallingford or anyone else. Had Watkins

offered any one of these women advancement in return for sexual favors—

a classic quid pro quo situation, even if he made such an offer outside the

workplace—I am confident the plurality would decide this case differently.

Certainly, hostile work environment may be more subtle than quid pro

quo. Subtleness, however, does not necessarily minimize the inimical
 61

impact of sexual harassment on victims. In other words, hostile work

environment is not a lesser form of sexual harassment.

We have stated, “A hostile work environment claim is premised on

the concept that sexual harassment can impact the conditions of

employment well beyond the denial or granting of economic or tangible

benefits.” Id. (emphasis added). Thus, quid pro quo involves a narrow

sliver of the types of employment conditions that sexual harassment

adversely affects. The plurality should not give more weight to this narrow

sliver by de-emphasizing the severity of other adverse alterations of

employment conditions, such as noncontractual consequences. “[W]hen

an employer creates a hostile work environment, employees are forced to

‘run a gauntlet of sexual abuse in return for the privilege of being allowed

to work and make a living . . . .’ ” Id. (second alteration in original)

(quoting Meritor Sav. Bank, 477 U.S. at 67, 106 S. Ct. at 2405). “[T]he

employee must endure an unreasonably offensive environment or quit

working.” Id. at 499–500.

I cannot stress enough that sexual harassment, in whatever form it

manifests, detrimentally affects victims. See Lucetta Pope, Everything You

Ever Wanted to Know About Sexual Harassment but Were Too Politically

Correct to Ask (or, the Use and Abuse of ‘But For’ Analysis in Sexual

Harassment Law Under Title VII), 30 Sw. U. L. Rev. 253, 259 (2001)

[hereinafter Pope] (“[D]ifferent forms of sexual harassment also produce

the same effect.”). Catharine A. MacKinnon, a prominent legal theorist,

traced the impact of sexual harassment. Catharine A. MacKinnon, Sexual

Harassment of Working Women: A Case of Sex Discrimination 47–55 (1979)

[hereinafter MacKinnon]. She stated, “Like women who are raped, sexually

harassed women feel humiliated, degraded, ashamed, embarrassed, and

cheap, as well as angry.” Id. at 47. She further asserted, “Faced with the
 62

spectre of unemployment, discrimination in the job market, and a good

possibility of repeated incidents elsewhere, women usually try to endure.”

Id. at 52. However, “the costs of endurance can be very high, including

physical as well as psychological damage” from anxiety to all kinds of

nervous tics which are “the inevitable backlash of the human body in

response to intolerable stress.” Id. (quoting Special Disadvantages of

Women in Male-Dominated Work Settings 6, in Women in Blue-Collar,

Service and Clerical Occupantions: Hearings Before the Comm’n on

Human Rights of the City of N.Y. (1979) (testimony of Lin Farley)).

Sexual harassment, as a broad category including both quid pro quo

and hostile work environment, “has devastating effects on a woman’s

economic and employment opportunities” and “tends to be equally

disastrous to a woman’s physical health and psychological well-being.”

Jennifer L. Vinciguerra, Note, The Present State of Sexual Harassment Law:

Perpetuating Post Traumatic Stress Disorder in Sexually Harassed Women,

42 Clev. St. L. Rev. 301, 305–06 (1994) (footnotes omitted). In fact, “[p]ost

[t]raumatic [s]tress [d]isorder is a common result in women who have

suffered sexual harassment in the workplace.” Id. at 303 & n.18

(collecting cases).

Moreover, in Meritor Savings Bank, the United States Supreme Court

established that both types of sexual harassment—quid pro quo and

hostile work environment—are equally illegal and actionable under Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a). See 477 U.S.

at 63–67, 106 S. Ct. at 2404–05. I do not believe quid pro quo is worse

than hostile work environment. Rather, both types of sexual harassment

are two sides of the same coin, 8 and the plurality should give each type its

8It should be noted that hostile work environment is “[l]ess clear[] and
undoubtedly more pervasive” than quid pro quo. MacKinnon, at 40.
 63

due weight. See Pope, 30 Sw. U. L. Rev. at 258–59 (“[Q]uid pro quo and

hostile environment claims amount merely to alternative varieties . . . .

MacKinnon’s scheme of quid pro quo and hostile environment claims

followed the radical view that seemingly diverse forms of sexual

harassment spring from the same discriminatory intent.” (Footnote

omitted.)).

Hostile-work-environment claims may lead to the same result as

quid pro quo claims: the loss of a job. Specifically, a hostile work

environment affects an employee’s tangible job conditions when it results

in the employee’s constructive discharge. U.S. Equal Emp. Opportunity

Comm’n, N-915-050, Policy Guidance on Current Issues of Sexual

Harassment (1990), https://www.eeoc.gov/policy/docs/currentissues.html

(last modified June 21, 1999). Constructive discharge involves an

employee’s resignation because his or her working conditions have become

“so intolerable that a reasonable person would have felt compelled to

resign.” Pa. State Police v. Suders, 542 U.S. 129, 147, 124 S. Ct. 2342,

2354 (2004).

III. Willful Misconduct.

A. Misconduct. In another effort to lessen the magnitude of

Watkins’s willful misconduct, the plurality reasons a number of the

incidents and comments occurred outside of the workplace because

Wallingford was a close family friend who frequently engaged in social

activities with Watkins and his wife. Although not all interactions with

supervisors or coworkers far away from the water cooler may constitute

grounds for a sexual-harassment claim, employers may very well be liable

for sexual harassment outside of the workplace.

In Parrish, the United States District Court for the Southern District

of New York stated,
 64

The court is aware of no settled law that . . . allow[s] a
harasser to pick and choose the venue for his assaults so as
to not account for those that occur physically outside the
workplace. The employment relationship cannot be so finely
and facilely parsed. It comprises multiple dimensions of time
and place that cannot be mechanically confined within the
precise clockwork and four walls of the office. The proper
focus of sexual harassment jurisprudence is not on any
particular point in time or coordinate location that rigidly
affixes the employment relationship, but on the manifest
conduct associated with it, on whether the employer has
created a hostile or abusive “work environment,” or a
“workplace” where sexual offenses occur and are sufficiently
severe or pervasive to alter the victim’s terms and conditions
of employment wherever the employment relationship
reasonably carries.

Parrish v. Sollecito, 249 F. Supp. 2d 342, 350–51 (S.D.N.Y. 2003).

The court acknowledged, “[A]s a practical matter[,] an employment

relationship and the employee’s corresponding status, while generally

commencing and grounded in what constitutes the office or plant, often

carries beyond the work station’s physical bounds and regular hours.” Id.

at 351. Moreover, the court noted employees travel on the road for

business trips and interact “at business-related meals and social events.”
Id. The court also noted “they may encounter one another in external

contexts not strictly stemming from or compelled by a business purpose.”

Id. (emphasis added). The real focus, the court reasoned, should be “the

degree to which, wherever a sexual assault occurs, its consequences may

be felt in the victim’s ‘workplace’ or ‘work environment’ and be brought to

bear on her terms and conditions of employment.” Id. I agree with the

Parrish court’s holistic approach.

In our modern times, technological forms of communication, such

as texting, take incidents at the water cooler to locations beyond the office.

Behaviors outside of the workplace may very well seep into the

environment at the workplace, contributing to a hostile work environment.
 65

Wouldn’t a victim whose supervisor subjects her to harassment over the

weekend feel uncomfortable, anxious, and fearful of her supervisor when

she sees him back at work on Monday? I would answer yes.

Additionally, the plurality discounts the district court’s use of the

Iowa Rules of Professional Conduct. I again disagree. In deciding these

removal cases, we have used the Law Enforcement Code of Ethics to

support the removal of a sheriff from office. See Callaway, 268 N.W.2d at

848. Similarly, a breach of the Iowa Rules of Professional Conduct is

relevant in deciding whether Watkins engaged in misconduct.

Furthermore, I find Watkins violated the Restatement (Third) of the

Law Governing Lawyers § 56, at 416 (Am. Law Inst. 2000). It provides, “[A]

lawyer is subject to liability to a client or nonclient when a nonlawyer

would be in similar circumstances.” Id. Comment k to section 56 states,

“Employees of lawyers. A lawyer who hires a lawyer or nonlawyer as an

employee is subject to applicable law governing the employment

relationship, such as contract law, antidiscrimination legislation, unjust-

discharge law, and labor relations law.” Id. § 56 cmt. k, at 420–21.

To dilute even further the gravity of Watkins’s sexual harassment of

Wallingford, the plurality states that most of Watkins’s repugnant behavior

did not concern Wallingford herself. Yet the acts of spewing abhorrent

comments about other women and showing nude photographs of his wife

to Wallingford constitute sexual harassment targeted at Wallingford.

Would Wallingford feel any less of a victim simply because, after seeing an

overweight woman, Watkins told Wallingford, “Man, I wouldn’t want to see

her naked”? Or when Watkins commented to Wallingford about a

courthouse employee’s breasts and wondered if they were “really that big”?

Or when Watkins complained to Wallingford that his wife “never wanted

to have sex” and he wished his wife would want to have sex all the time?
 66

Or when Watkins told Wallingford he was glad he kept nude photographs

of his previous girlfriends? Wallingford is no less a victim of sexual

harassment simply because the comments and photographs did not

concern herself in the most literal sense.

Let us not forget the comments concerning Wallingford herself. For

example, on three or four occasions, Watkins asked Wallingford if “her

vagina was still broke.”

Under this record, I would affirm the district court’s finding that

Watkins committed misconduct in office by establishing and maintaining

a hostile work environment.

B. Willful. Having determined Watkins committed misconduct, the

next question is whether Watkins committed the misconduct willfully. I

agree with Chief Justice Cady’s analysis of the willful nature of Watkins’s

misconduct.

We have defined “willful” in the context of section 66.1A(2) to be

misconduct “committed knowingly and with a purpose to do wrong.”

Callaway, 268 N.W.2d at 842. The repeated nature of the misconduct in

question here requires me to find that Watkins engaged in it knowingly.

Moreover, at least one comment provides direct evidence that

Watkins knew exactly what he was doing. When his former child-care

worker returned his missed phone call and explained she was in the

shower, Watkins told her that she should have FaceTimed him while in

the shower and then stated, “[T]his is probably why I’m in trouble for

sexual harassment.” This statement clearly shows Watkins had the

requisite knowledge that he was engaging in sexual harassment. Watkins

was not naïve. I doubt his other comments and actions of similar nature

came from mere thoughtlessness or even recklessness. See State ex rel.

Barker v. Meek, 148 Iowa 671, 674, 127 N.W. 1023, 1024 (1910) (“Conduct
 67

may be voluntary, thoughtless, or even reckless, yet not necessarily

willful.”).

Additionally, I find Watkins engaged in such misconduct for a bad

or evil purpose. See State v. Roth, 162 Iowa 638, 651, 144 N.W. 339, 344

(1913) (stating “willfully” means the public official acted “intentionally,

deliberately, with a bad or evil purpose, contrary to known duty”). He did

not mean his misconduct or words to be funny. The nature of his

misconduct and words were hurtful to the recipients. It is okay to make

jokes but not about other people or their problems. Our law has no room

to accommodate Watkins’s willful, sexually degrading, demoralizing, and

reprehensible behavior.

I find no merit in the rationale the plurality uses to corroborate its

conclusion that Watkins did not act with a bad or evil purpose. What I

find particularly preposterous is the plurality’s unwarranted dilution of

Watkins’s harassing behavior because the environment included joking,

teasing, and sarcastic remarks. I am disinclined to believe any reasonable

person in a similar situation would find Watkins’s harassment even

remotely amusing. I am also disinclined to believe Watkins subjectively

believed he meant no harm. The reasoning the plurality uses to discount

Watkins’s misconduct sounds to me like the good-old-boy excuse. This

excuse has absolutely no place in our law.

I also find no merit in the plurality’s emphasis on Wallingford’s close

relationship with Watkins and his wife, as if to excuse Watkins’s behavior

simply because he was like family to Wallingford. The plurality’s

sympathetic portrayal of Watkins as a close family friend who meant no

harm is misplaced. A familial-like relationship should discourage rather

than foster a crude, demeaning, sexually charged work environment.
 68

IV. Conclusion.

Based on the forgoing reasons, I would affirm the judgment of the

district court. We must stop making excuses. Enough is enough. Sexual

harassment is a real problem affecting real individuals. Moreover,

“[s]exual harassment perpetuates the interlocked structure by which

women have been kept sexually in thrall to men and at the bottom of the

labor market.” MacKinnon at 174.