Service Employees International Union, Local 199 v. State of Iowa, Iowa Board of Regents

IN THE SUPREME COURT OF IOWA
No. 18–0018

Filed May 17, 2019

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 199,

Appellant,

vs.

STATE OF IOWA, IOWA BOARD OF REGENTS,

Appellee.

Appeal from the Iowa District Court for Polk County, Jeffrey D.

Farrell, Judge.

Public employee union appeals summary judgment dismissing

action to enforce alleged collective bargaining agreement. AFFIRMED.

Charles Gribble and Christopher Stewart of Parrish Kruidenier

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

Nathan Willems of Rush & Nicholson, Cedar Rapids, for appellant.

Andrew T. Tice of Ahlers & Cooney, P.C., Des Moines, for appellee.
 2

WATERMAN, Justice.

In this appeal, we must determine whether the Iowa Board of

Regents and a public employee union entered into an enforceable collective

bargaining agreement. The fighting issue is the validity of an agency rule

that requires the Board to meet to vote to accept a tentative voluntary

agreement ratified by the union before the contract becomes effective. The

parties’ negotiations are governed by the Public Employment Relations Act

(PERA), Iowa Code chapter 20, and rules promulgated by the Public

Employment Relations Board (PERB). Iowa Code section 20.17(4) (2017)
provides that “[t]he collective bargaining agreement shall become effective

only if ratified by a majority of [union members] voting by secret ballot.”

This statute makes no mention of requiring the public employer to vote to

ratify the agreement, but a related statute generally requires final action

to be conducted in an open meeting. Iowa Code § 21.5(3). In 1976, PERB

enacted Iowa Administrative Code rule 621—6.5 to implement the voting

requirements for both the employer and union.1 The union and Board had

each voted to ratify their voluntary collective bargaining agreements

consistent with that rule in 2009, 2011, and 2015. However, in 2017, the

Board did not vote to approve the proposed agreement ratified by the

union.

The union filed this action under Iowa Code section 20.17(5) to

enforce the collective bargaining agreement. The Board moved for

summary judgment, relying on rule 621—6.5(3). The union argued the

agency rule was invalid because it imposed a ratification requirement not

included in section 20.17(4). The district court, reading chapter 20 and

1This rule was renumbered in August 2017 prior to the district court’s summary
judgment and was formerly Iowa Administrative Code rule 621—6.4. We will refer to the
rule by its current number throughout this opinion.
 3

21 together, upheld the validity of the agency rule and granted summary

judgment dismissing the union’s enforcement action. The union appealed,

and we retained the appeal.

On our review, for the reasons explained below, we hold PERB acted

within its statutory authority in promulgating rule 621—6.5(3), which has

the force of law. The legislature expressly granted PERB rulemaking and

interpretive authority. Chapters 20 and 21 are interrelated and must be

construed together. Rule 621—6.5 implements ratification voting

requirements for both the Board and the union. The district court
correctly applied rule 621—6.5(3) to hold the parties had no enforceable

collective bargaining agreement without the Board’s vote to ratify it.

Accordingly, we affirm the summary judgment dismissing this action.

I. Background Facts and Proceedings.

Service Employees International Union, Local 199 (SEIU) represents

approximately 3500 employees of the State of Iowa who work at the

University of Iowa Hospitals and Clinics (UIHC). The UIHC is governed by

the Iowa Board of Regents. Iowa Code § 262.7(1). The Board consists of

nine members appointed by the Governor. Id. §§ 262.1–.2. The Board

meets periodically to “adopt[] rules and policies having general application

to the institutions subject to its governance,” including the UIHC. Iowa

Admin. Code r. 681—11.1(5); see also Iowa Code § 262.9(3). The Board,

when acting as a public employer, has discretion to retain attorneys to

“carry[] out collective bargaining and related responsibilities provided for

under chapter 20.” Iowa Code § 262.9(16). The Board is subject to the

open-meetings requirements of Iowa Code chapter 21. Id. §§ 21.2(1)(a), .3.
 4

SEIU and the Board negotiated voluntary two-year collective

bargaining agreements in 2009, 2011, and 2015.2 In each of those years,

the Board formally voted to approve the collective bargaining agreement

after the ratification vote by SEIU’s membership. The agreement

negotiated in 2015 expired by its terms on June 30, 2017.

In the fall of 2016, the Board and SEIU began negotiating a new

agreement to begin on July 1, 2017. SEIU selected James “Jim” Jacobson

as its lead negotiator, and the Board chose Michael Galloway as its lead

negotiator. Jacobson and Galloway met on October 10, 2016, to discuss
a timeline for the upcoming exchange of offers and ensuing negotiations.

The Board met on October 20 and went into a closed session to discuss

collective bargaining strategy with counsel and institutional

representatives. The Board did not vote to approve any bargaining

agreement during this closed session.

On November 29, Jacobson and Galloway exchanged initial

bargaining proposals. They met again on December 8 and 14 to discuss

the initial proposals and exchange additional proposals. At the

December 14 meeting, Jacobson presented SEIU’s counteroffer. Galloway

made clear to Jacobson that any terms they set at the bargaining table

would have to be approved by the Board and that Galloway would have to

“sell it” to the Board. Galloway canceled bargaining sessions scheduled

for January 5 and 12, 2017.

On January 9, Galloway copied Jacobson on an email to the PERB

reporting the status of the parties’ negotiations. Galloway’s email

explained that the Board would soon be extending its final offer:

2During the negotiations for the 2013 contract, the parties reached an impasse
that was resolved through binding arbitration. See Iowa Code § 20.22.
 5
We will be giving the union a final offer in writing this week.
Jim is correct that we cancelled the 5th so that I could visit
with the Board and the hospital regarding my financial
authority. I am having surgery on the 11th so I can’t make
the 12th.
Our final offer will contain all the financial authority I will
have. If it is not acceptable, then we should just schedule
mediation. Thanks[.]

On January 10, Galloway emailed Jacobson and attached the

Regents’ final offer accompanied by this explanation:

Please find attached the Board of Regents’ final offer to SEIU.
The offer includes all the items we had agreed previously upon
during negotiations. I believe this offer represents a
substantial increase to the inpatient nurses and is a fair offer
to the other members of the bargaining unit. This offer
contains all the financial authority we have from the Board of
Regents. Please let us know if this offer is acceptable.
If the offer is not acceptable, we will need to schedule
mediation during the week of January 30th.

The cover page of the January 10 offer stated, “This is a package proposal

and must be accepted or rejected in its entirety.” Yet the cover page also

noted, “The [Board] reserves the right to add to, delete from, and/or revise

this proposal.”

On January 17, Jacobson called Galloway to ask whether better

terms were available on the Weekend Option Program for nurses and a

probationary period for new employees. The next day, Jacobson followed
up by email to ask if Galloway had spoken to the Board about those

matters. Galloway responded that he did “not have a response.” However,

Galloway foreshadowed headwinds for the Board’s ultimate approval of the

pending proposal:

I know UIHC would be much more comfortable leaving the
probationary status current contract and maintaining our
position on weekend option. That being said, the biggest issue
now is that the Regents have heard rumors regarding the
position AFSCME has taken with the State. It is my
understanding that the Union’s offer was dramatically lower
than 2% and increased the insurance contributions.
 6
I understand these are different units, but there will be grave
concerns regarding our offer once it is received/understood by
the Governor’s office. I knew this could become an issue and
was hoping to avoid it by getting this contract completed
quickly.

On January 25, Jacobson emailed Galloway to inform him SEIU had

accepted the Regents’ final offer, stating,

I left you a voicemail earlier today. But I thought I better put
it in writing. SEIU has agreed to the terms of the [Board]’s
final offer sent via email on January 10, 2017.
SEIU will hold a ratification vote as quickly as possible and let
you know the results.
Please contact me regarding drafting a final, clean version of
the document.

On January 31, Galloway spoke with Jacobson on the phone and

“informed him that there was not an agreement to be ratified and that the

parties need[ed] to continue to bargain.” Galloway did not expressly

withdraw the Board’s January 10 offer. On February 1, Jacobson sent

Galloway an email clarifying SEIU’s position,

In light of our conversation yesterday, I wanted to recap the
situation in which SEIU, as the legal representatives of
approximately 3,500 health care professionals, and the Board
of Regents find themselves.
On January 10, 2017 you sent SEIU, as the chief negotiator
for the Board of Regents, a final contract offer.
On January 25, 2017, SEIU accepted the offer with both a
voice message and an email message.
On January 31, during a telephone conversation, you and Tim
Cook informed me that the Board of Regents believed the
parties had not, in fact, reached an agreement.
As I said yesterday, SEIU plans to hold its ratification vote in
the very near future. I will inform you of the results.
Please let me know if the Board of Regents’ position changes.

On February 8, Jacobson emailed Galloway to inform him of SEIU’s

ratification vote,

SEIU, Local 199 ratified the tentative agreement the parties
reached on January 25, 2017. The vote was held February 7,
 7
2017 with 98.6 percent of the voters in favor of accepting the
agreement. Please let me know if you have any questions.

On February 9, House File 291 was introduced in the Iowa House of

Representatives. H.F. 291, 87th G.A., 1st Sess. (Iowa 2017). House File

291 made significant amendments to PERA by substantially limiting the

number of mandatory bargaining topics for most public employees,

including the employees in SEIU’s bargaining units. The Governor signed

House File 291 into law on February 17, and the amendments took effect

immediately.3 2017 Iowa Acts ch. 2 (codified in part at Iowa Code ch. 20

(2018)).

Although the Board had publicly voted to approve the collective

bargaining agreements after SEIU’s ratification votes in 2009, 2011, and

2015, the Board held no such vote to approve the 2017 agreement. The

Board met on March 8 to discuss and vote to accept a collective bargaining

agreement with the faculty union of the University of Northern Iowa. The

Board did not consider or approve the SEIU agreement at this meeting.

On March 10, SEIU filed this action in district court pursuant to

Iowa Code section 20.17(5) to enforce the collective bargaining agreement.

SEIU alleged that the terms in the Board’s January 10 offer became a valid

collective bargaining agreement upon SEIU’s ratification vote. The Board
filed a preanswer motion to dismiss, contending that no valid collective

bargaining agreement existed to enforce under section 20.17(5). The

Board relied on the rule promulgated by PERB that requires a public

employer to accept or reject a tentative agreement before the agreement

becomes effective. Iowa Admin. Code r. 621—6.5(3). The Board argued

the court lacked subject matter jurisdiction without a contract to enforce.

3The amendments invalidated collective bargaining agreements still under
negotiation. See H.F. 291, 87th G.A., 1st Sess. § 25 (Iowa 2017) (providing that collective
bargaining agreements not completed by that date “shall not become effective”).
 8

SEIU resisted the motion to dismiss, arguing rule 621—6.5(3) is invalid

and that the agreement became effective when ratified by vote of the

union’s members under Iowa Code section 20.17(4). The district court

denied the Board’s motion to dismiss, concluding the court had subject

matter jurisdiction to determine whether the parties entered into an

enforceable agreement.

The Board and SEIU filed cross-motions for summary judgment.

The Board relied on rule 621—6.5(3). SEIU argued the Board’s offer was

never withdrawn and that rule 621—6.5(3) is invalid because it added a
requirement of a vote by the public employer that is not imposed by the

controlling statute, Iowa Code section 20.17(4). The district court rejected

SEIU’s challenge to the validity of rule 621—6.5(3). The district court

noted the Board is subject to the open-meetings and public-voting

requirements of Iowa Code chapter 21 and that section 20.17(4) contains

no language divesting the Board “of the ability to meet and approve a

contract that is negotiated by its representative and the union. PERB’s

rule merely spells out when and how that will occur.” The court concluded

PERB had the statutory authority to promulgate rule 621—6.5(3). The

district court applied that rule to grant summary judgment in favor of the

Board stating, “Because the Board of Regents did not approve the tentative

contract, there is no executed contract.” The district court denied SEIU’s

motion for enlarged findings and dismissed SEIU’s petition. SEIU

appealed the district court ruling, and we retained the appeal.

II. Scope of Review.

We review a summary judgment ruling for correction of errors at

law. Peak v. Adams, 799 N.W.2d 535, 542 (Iowa 2011). “Summary
judgment is appropriate if there are no genuine issues of material fact and

the moving party is entitled to judgment as a matter of law.” Emp’rs Mut.
 9

Cas. Co. v. Van Haaften, 815 N.W.2d 17, 22 (Iowa 2012). “We view the

evidence in the light most favorable to the nonmoving party.” Luana Sav.

Bank v. Pro-Build Holdings, Inc., 856 N.W.2d 892, 895 (Iowa 2014). “The

court must consider on behalf of the nonmoving party every legitimate

inference that can be reasonably deduced from the record.” Thornton v.

Am. Interstate Ins., 897 N.W.2d 445, 460 (Iowa 2017) (quoting McIlravy v.

N. River Ins., 653 N.W.2d 323, 328 (Iowa 2002)).

III. Analysis.

We must decide whether the district court erred by granting the
Board’s motion for summary judgment dismissing SEIU’s petition to

enforce the 2017 collective bargaining agreement. The fighting issue is the

validity of Iowa Administrative Code rule 621—6.5(3). We conclude the

district court correctly ruled PERB had the statutory authority to

promulgate rule 621—6.5(3) and properly granted summary judgment

dismissing SEIU’s action to enforce a contract the Board never voted to

approve.

The legislature empowered PERB to adopt rules as the agency deems

necessary to carry out the purposes of chapter 20. Iowa Code § 20.6(5).

The validity of an agency rule is a question of law. City of Des Moines v.

Iowa Dep’t of Transp., 911 N.W.2d 431, 440–41 (Iowa 2018). “Ordinarily,

state agency rules are given ‘the force and effect of law.’ ” Id. at 440

(quoting Stone Container Corp. v. Castle, 657 N.W.2d 485, 489 (Iowa

2003)). The “rule is ‘presumed valid unless the party challenging the rule

proves a “rational agency” could not conclude the rule was within its

delegated authority.’ ” Id. at 439 (quoting Meredith Outdoor Advert., Inc. v.

Iowa Dep’t of Transp., 648 N.W.2d 109, 117 (Iowa 2002)). “[T]he power of
the agency is limited to the power granted by statute.” Id. (quoting Brakke

v. Iowa Dep’t of Nat. Res., 897 N.W.2d 522, 533 (Iowa 2017)). “Thus, if the
 10

rules adopted by the agency ‘exceed the agency’s statutory authority, the

rules are void and invalid.’ ” Id. at 441 (quoting Wallace v. Iowa State Bd.

of Educ., 770 N.W.2d 344, 348 (Iowa 2009)).

“We do not defer to the agency’s interpretation of its own statutory

authority to issue a rule unless ‘the legislature has clearly vested that

interpretation in the agency.’ ” Id. at 439 (quoting Brakke, 897 N.W.2d at

533)). We recently invalidated the department of transportation’s rules

regulating placement of automated traffic enforcement equipment on

interstate highways because that agency lacked the statutory authority to
promulgate such rules. Id. at 450. We noted the legislature had not given

that agency interpretive authority. Id. at 439.

By contrast, the legislature in 2010 “amend[ed] Iowa Code section

20.6 to expressly grant PERB authority to ‘[i]nterpret, apply, and

administer’ the provisions of Iowa Code chapter 20.” AFSCME Iowa

Council 61 v. Iowa Pub. Emp’t Relations Bd., 846 N.W.2d 873, 878 (Iowa

2014) (quoting 2010 Iowa Acts ch. 1165, § 6 (codified at Iowa Code

§ 20.6(1) (2011))). Accordingly, we give deference to PERB’s interpretation

of chapter 20 as to its statutory authority to promulgate rule 621—6.5 and

will uphold PERB’s interpretation unless it is “irrational, illogical, or wholly

unjustifiable.” Id. (quoting Iowa Code § 17A.19(10)(l) (2013)).

Although PERB is not a party to this case, SEIU may challenge the

validity of rule 621—6.5(3) in this action. Jew v. Univ. of Iowa, 398 N.W.2d

861, 864 (Iowa 1987) (“A party aggrieved by application of an

administrative rule may challenge its validity in an independent action

where the rule is sought to be applied.”).

Rule 621—6.5(3) provides,

6.5(3) Acceptance or rejection by public employer. The
public employer shall, within ten days of the tentative
agreement, likewise meet to accept or reject the agreement,
 11
and shall within 24 hours of the acceptance or rejection serve
notice on the employee organization of its acceptance or
rejection of the proposed agreement; however, the public
employer shall not be required to either accept or reject the
tentative agreement if it has been rejected by the employee
organization.

Iowa Admin. Code r. 621—6.5(3). The ten-day deadline does not apply to

the Iowa Board of Regents. Id. r. 621—6.5(4)(b).

PERB amended and reenacted Iowa Administrative Code chapter 6

in 2016, including rule 621—6.4(3) (now renumbered to 621—6.5(3)).4 At

that time, PERB had express interpretive authority from the 2010

amendments to Iowa Code section 20.6. See Iowa Code § 20.6(1) (2016))

(noting that PERB shall “[i]nterpret, apply, and administer” Iowa Code

chapter 20).

SEIU’s challenge to rule 621—6.5(3) is straightforward. SEIU argues

this rule is invalid because it adds a requirement for ratification by Board

vote that is not found in the controlling statute, which provides,

The terms of a proposed collective bargaining agreement shall
be made available to the public by the public employer and
reasonable notice shall be given to the public employees by
the employee organization prior to a ratification election. The
collective bargaining agreement shall become effective only if
ratified by a majority of those voting by secret ballot.

Iowa Code § 20.17(4) (2017).

4The amendments to Iowa Administrative Code rule 621—6.4(3) were as follows,
with additions underlined and removals crossed out:
6.4(3) Acceptance or rejection by public employer. The public
employer shall, within ten days of the tentative agreement, likewise meet
to accept or reject the agreement, and shall within 24 hours of the
acceptance or rejection serve notice on the employee organization of its
acceptance or rejection of the proposed agreement; provided, however, that
the public employer shall not be required to either accept or reject the
tentative agreement if it has been rejected by the employee organization.
38 Iowa Admin. Bull. 1046, 1048 (Dec. 9, 2015) (effective Jan. 13, 2016).
 12

PERB necessarily construed section 20.17(4) to permit rule 621—

6.5(3), the rule promulgated by the agency to implement that Code section.

Under our standard of review, we will not reverse PERB’s interpretation

unless it is “irrational, illogical, or wholly unjustifiable.” AFSCME Iowa

Council 61, 846 N.W.2d at 878 (quoting Iowa Code § 17A.19(10)(l)). Under

this deferential standard of review, we decline to reverse PERB’s statutory

interpretation. We reject SEIU’s conflicting interpretation.

Section 20.17(4) expressly requires the union to ratify the proposed

collective bargaining agreement without requiring a ratification vote by the
public employer. SEIU’s challenge is facially compelling if the statute is

read in isolation. But SEIU’s myopic focus on that provision alone must

yield to our requirement to read related statutes together and harmonize

them if possible. See Iowa Code § 4.7 (“If a general provision conflicts with

a special or local provision, they shall be construed, if possible, so that

effect is given to both. If the conflict between the provisions is

irreconcilable, the special or local provision prevails as an exception to the

general provision.”); Kolzow v. State, 813 N.W.2d 731, 736 (Iowa 2012) (“If

more than one statute relating to the subject matter at issue is relevant to

the inquiry, we consider all the statutes together in an effort to harmonize

them.” (quoting State v. Carpenter, 616 N.W.2d 540, 542 (Iowa 2000)). Our

broader analysis shows the rule does not create a new public employer

voting requirement omitted from the Iowa Code. To the contrary, rule

621—6.5(3) merely implements statutory voting requirements found in

related Code sections for unions and public employers alike.

Both chapter 20 and chapter 21 govern public employers. As the

district court correctly concluded, the Board is subject to the open-
meetings and public-voting requirements of Iowa Code chapter 21. Iowa

Code §§ 21.2(1)(a), .3; id. § 262.8. “Final action [by the Board] on any
 13

matter shall be taken in an open session unless some other provision of

the Code expressly permits such actions to be taken in closed session.”

Id. § 21.5(3). Final action includes approval of employment contracts with

public employees. See Hutchison v. Shull, 878 N.W.2d 221, 237 (Iowa

2016) (holding county board’s deliberations on employee reorganization

plan were subject to chapter 21 open-meetings requirements). The

statutes are linked by the cross-reference in section 20.17(3), which

provides that certain negotiation and strategy discussions may be

conducted in closed session while chapter 21’s open-meetings
requirements apply to other aspects of collective bargaining.5

Contracts with public entities are unenforceable when executed

without proper approval or compliance with statutory requirements. City

of Akron v. Akron Westfield Cmty. Sch. Dist., 659 N.W.2d 223, 225–27 (Iowa

2003) (per curiam) (holding contract with city is void without formal vote

required by statute); City of McGregor v. Janett, 546 N.W.2d 616, 620 (Iowa

1996) (“This court has long held that acts by individual members of a

public body . . . [are not binding] unless officially sanctioned in accordance

with the statute.”); see also Hutchison, 878 N.W.2d at 237–38 (noting “Iowa

5Section 20.17(3) provides,
Negotiating sessions, strategy meetings of public employers, mediation,
and the deliberative process of arbitrators shall be exempt from the
provisions of chapter 21. However, the employee organization shall
present its initial bargaining position to the public employer at the first
bargaining session. The public employer shall present its initial
bargaining position to the employee organization at the second bargaining
session, which shall be held no later than two weeks following the first
bargaining session. Both sessions shall be open to the public and subject
to the provisions of chapter 21. Parties who by agreement are utilizing a
cooperative alternative bargaining process may exchange their respective
initial interest statements in lieu of initial bargaining positions at these
open sessions. Hearings conducted by arbitrators shall be open to the
public.
Iowa Code § 20.17(3).
 14

Code section 21.6(3)(c) allows the district court to void any action taken by

the board” and directing district court on remand to consider whether

subsequent board approval vote “cured any violation of the open meetings

law”).

“The open meetings law is intended to safeguard free and open

democracy by ensuring the government does not unnecessarily conduct

its business in secret.” Hutchison, 878 N.W.2d at 237. Requiring public,

open votes to approve government contracts serves that goal. Formal

contract approval requirements also protect taxpayers. City of Akron, 659
N.W.2d at 225. “[I]t would be a bad idea to frustrate those requirements.”

Id. at 225–26. Those who negotiate or enter into contracts with

government entities are charged with knowledge of the requirements of a

public vote. See id. at 225.

Against this backdrop, we conclude the district court correctly

determined that PERB acted within its statutory authority by

promulgating rule 621—6.5 to implement public-voting requirements for

the Board, as codified in chapter 21, as well as the union membership

secret-voting requirements, as codified in section 20.17(4).6 The district

court reasoned,

6The rule implements the union voting requirement as follows:
6.5(2) Ratification or rejection by employee organization. Within
seven days of the date of the tentative agreement, the employee
organization shall conduct a ratification election on the tentative
agreement. The employee organization shall give reasonable notice of the
date, time and place of the election to the public employees; however, such
notice shall be at least 24 hours prior to the election. The vote shall be by
secret ballot, and the majority of votes cast will determine acceptance or
rejection of the tentative agreement. Only members of the employee
organization shall be entitled to vote; however, the employee organization
may, pursuant to its internal procedures, extend voting rights to
nonmember bargaining unit employees. The employee organization shall,
within 24 hours of the conclusion of the election, serve notice on the public
employer as to whether or not the proposed agreement has been ratified.
 15
[P]ublic boards and commissions are required to provide
notice to the public and meet before voting on any action
within the scope of its duties. See generally Iowa Code ch. 21.
Section 20.17 does not contain any language to suggest that
a public body divests itself of the ability to meet and approve
a contract that is negotiated by its representative and the
union. PERB’s rule merely spells out when and how that will
occur.

We agree with the district court’s analysis. We reject SEIU’s

argument that rule 621—6.5(3) adds a statutory requirement contrary to

section 20.17(4). Section 20.17(4) expressly requires a union vote because

no other statute does so. Section 20.17(4) is silent regarding a ratification

vote by the public employer because that requirement is codified in

chapter 21. Cf. Gannon v. Bd. of Regents, 692 N.W.2d 31, 39–44 (Iowa

2005) (holding that a private corporation exercising authority delegated by

the Board of Regents was performing a government function and was

therefore subject to the open-records requirements of Iowa Code chapter

22). Nothing in section 20.17(4) eliminates the Board’s duty to comply

with chapter 21 when entering into employment contracts.

The parties’ course of conduct with earlier collective bargaining

agreements reflects the requirements of chapter 21 and rule 621—6.5(3).

The Board voted to ratify the collective bargaining agreements negotiated

with SEIU in 2009, 2011, and 2015. Galloway told Jacobson in December
2016 that he would have to “sell” any proposed new contract to the Board.

The Board never voted to approve the proposed agreement ratified by the

members of SEIU, and Galloway reiterated that there was no enforceable

agreement in his discussions with Jacobson on January 31, 2017.

Meanwhile, on March 8, as required under chapter 21 and rule 621—

6.5(3), the Board voted to approve a separate collective bargaining

agreement with the faculty union at the University of Northern Iowa.
Galloway provided this uncontroverted testimony:
 16
Throughout my practice, I have served as the chief negotiator
in collective bargaining for a variety of public employers on
more than 400 occasions. In this capacity, I am not aware of
a single voluntary collective bargaining agreement reached
involving a public employer with a governing body that was
not conditioned upon a ratification vote by that governing
body.

PERB promulgated rule 621—6.5(3) in 1976. The rule has withstood

the test of time. The legislature in the subsequent four decades has taken

no action to invalidate this rule. “We consider the legislature’s inaction as

a tacit approval of the [agency’s] action.” Lowe’s Home Ctrs., LLC v. Iowa

Dep’t of Revenue, 921 N.W.2d 38, 48 (Iowa 2018) (alteration in original)

(quoting City of Sioux City v. Iowa Dep’t of Revenue & Fin., 666 N.W.2d

587, 592 (Iowa 2003)).7

We hold rule 621—6.5(3) is valid and entitled to the force of law.

SEIU has failed to show PERB exceeded its statutory authority by

promulgating this rule. The district court correctly applied that rule in

granting the Board’s motion for summary judgment. No enforceable

agreement was reached without the requisite vote by the Board to approve

the proposed collective bargaining agreement.8

IV. Disposition.

For those reasons, we affirm the district court’s summary judgment
dismissing SEIU’s action to enforce the collective bargaining agreement.

AFFIRMED.

7The Iowa Court of Appeals acknowledged the validity of rule 621—6.5(3)

(previously 621—6.4(3)) in dicta nearly three decades ago. Moravia Cmty. Sch. Dist. v.
Moravia Educ. Ass’n, 460 N.W.2d 172, 178 (Iowa Ct. App. 1990) (noting under rule 621—
6.4 the union and the public employer each “has the right to accept or reject the tentative
agreement”).
8The district court also correctly rejected SEIU’s alternative argument that the
agreement was approved by operation of law when the Board failed to vote to affirmatively
reject the agreement within ten days of the union’s ratification vote. As noted, the ten-
day deadline does not apply to the Board as an arm of the State. Iowa Admin Code r.
621—6.5(4)(b).
 17

Mansfield, Christensen, and McDonald, JJ., join this opinion. Cady,

C.J., files a dissenting opinion in which Wiggins, J., joins. Appel, J., files

a separate dissenting opinion in which Wiggins, J., joins.
 18
#18–0018, SEIU v. State

CADY, Chief Justice (dissenting).

I respectfully dissent.

The legislature enacted the open-meetings law to safeguard

openness and transparency in government and to ensure that the

business of government is not done in secret. Hutchison v. Shull, 878

N.W.2d 221, 237 (Iowa 2016). It did not enact this law to change or alter

long-standing common law principles that permit negotiations by agents

of entities operated by boards to enter into binding agreements prior to
final board approval. See Soults Farms, Inc. v. Schafer, 797 N.W.2d 92,

100 (Iowa 2011). Of course, the legislature did modify this principle with

respect to collective bargaining agreements involving the state, in part, by

requiring the union membership to approve a negotiated agreement before

it can be binding on the union, but did not similarly require board

approval. See Iowa Code § 20.17(4) (2017). Thus, the Public Employment

Relations Board had no authority to exercise its rulemaking powers over

collective bargaining by using the provisions of the open-meetings law to

alter contract law by requiring Board of Regents approval of negotiated

collective bargaining agreements. The administrative rule is clearly invalid
and does not govern the outcome of this case. The district court erred in

concluding otherwise.

Instead, the legal issue in this case is whether the Board intended

their agent to reach a binding agreement subject to a union vote. The

evidence in the case indicates the State did not intend to be bound by its

agent. The evidence reveals the State relied on the invalid administrative

rule and never intended to be bound by the negotiations until final Board
approval. Thus, even though the rule was invalid, it helped formulate the

state of mind of the parties and ultimately the outcome of this case.
 19

Nevertheless, this case cannot be affirmed on this ground. The issue

was never raised and decided. Accordingly, I would reverse the decision

of the district court and remand the case for further proceedings.

Wiggins, J., joins this dissent.
 20

#18–0018, Serv. Emps. Int’l Union, Local 199 v. State

APPEL, Justice (dissenting).

I view the issues in this case differently than the majority.

Application of ordinary rules of statutory interpretation, administrative

law, and summary judgment compel the conclusion that the district court

erred in granting summary judgment.

I. Overview of Issues.

The first question we must confront is whether Iowa Code chapter

20 permits a public employer to empower its representative to make a
binding offer. I answer that question in the affirmative because the statute

provides that a “public employer may designate any individual as its

representative to engage in collective bargaining negotiations.” Iowa Code

§ 20.17(2) (2017). The common meaning of the term “negotiations,” other

jurisdictions’ understanding of the term, and other provisions in Iowa

Code chapter 20 all indicate that authority to engage in negotiations

includes the authority to make a binding offer.

Moreover, the Iowa Board of Regents (Regents) is specifically

authorized to employ an attorney or counselor for “carrying out collective

bargaining and related responsibilities.” Id. § 262.9(16). To “carry out”

means, among other things, “to continue to an end or stopping point.”

Carry out, Webster’s Third New International Dictionary (unabr. ed. 2002)

[hereinafter Webster’s]. This provision further corroborates that the

Regents may empower their designated representative to make a binding

offer.

The next issue we must tackle is the validity of an administrative

rule that disables public employers from empowering their representatives
to make binding offers. Iowa Admin. Code r. 621—6.4(3) (2016). The rule

so disables public employers because it requires the employers to meet in
 21

order to accept or reject a “tentative” agreement before the agreement may

become binding. Id.

The Iowa Administrative Procedure Act (IAPA) instructs that, where

agency action based on statutory interpretation is under judicial review,

our standard of review depends on whether the agency has clearly been

vested with interpretive authority over the interpreted statutory

provisions. Iowa Code § 17A.19(10)(c), (l). If there is such clear vesting,

then our standard of review includes some deference to the agency

interpretation; if not, then we do not defer. Id. Importantly, our standard
of review must be “applied to the agency action at the time that action was

taken.” Id. § 17A.19(8)(b); see Brummer v. Iowa Dep’t of Corr., 661 N.W.2d

167, 168 n.1 (Iowa 2003) (explaining that under section 17A.19(8)(b), “we

must focus on the agency’s actions during the time period in which” the

agency took the challenged action).

The Public Employment Relations Board (PERB) promulgated the

rule containing the employer ratification requirement. “[A]t the time that

action was taken”—when PERB enacted the rule in 1975 and the three

times during 1976 to 1982 PERB necessarily interpreted statutory

provisions to substantively modify the employer ratification requirement—

PERB lacked interpretive authority over both chapter 20 and the statutory

provisions in question. Consequently, we review PERB’s rule for

corrections of error at law and are free to substitute our de novo

interpretation of the statute. Iowa Code § 17A.19(10)(c); Renda v. Iowa

Civil Rights Comm’n, 784 N.W.2d 8, 11–14 (Iowa 2010).

The majority opinion in this case defers to PERB’s statutory

interpretation based on a 2010 express grant of interpretive authority.
That approach is wrong. During the time that the grant of interpretive

authority was in existence, PERB did not interpret any provision of chapter
 22

20 to modify the employer ratification requirement. Indeed, PERB did not

even modify the requirement during that time. Thus, no one is seeking to

apply to Service Employees International Union, Local 199 (SEIU), and the

union is not challenging, any PERB action or statutory interpretation

made while the express grant was in force.

The majority points to 2015 amendments promulgated by PERB.

See 38 Iowa Admin. Bull. 1046, 1048 (Dec. 9, 2015). But, according to

PERB, the 2015 changes were “nonsubstantive amendments” to the public

notification requirement also located in rule 6.4. Id. The 2015 amendment
did not modify the employer ratification requirement and did not require

statutory interpretation. Indeed, the 2015 amendments were expressly

pursuant to PERB’s rulemaking, not interpretive, authority. Id.

Deference is only granted under Iowa Code section 17A.19(10)(l) to

an agency action that is both (i) based on statutory interpretation and (ii)

prejudicial to the substantial rights of the person seeking judicial relief.

The 2015 amendments satisfy neither requirement.

Under the IAPA, we must apply our standard of review “to the agency

action at the time that action was taken.” Iowa Code § 17A.19(8)(b). The

agency actions at issue in this case occurred during 1975 to 1982, when

PERB had no interpretive authority over chapter 20 or the provisions in

question. Consequently, no deference is warranted.

Applying our standard of review, I believe PERB’s employer

ratification requirement is erroneous and therefore invalid. The

requirement is contrary to a public employer’s ability to empower a

representative to make a binding offer inherent to the statutory authority

to designate a representative to negotiate. Id. § 20.17(2). The rule is also
contrary to the statutory authorization for the Regents to employ an

attorney to “carry[] out collective bargaining and related responsibilities.”
 23

Id. § 262.9(16). Additionally, the rule conflicts with Iowa Code section

20.17(4), which only requires union ratification. We are bound by what

the legislature actually said, not what it might have said. Krull v.

Thermogas Co. of Northwood, 522 N.W.2d 607, 612 (Iowa 1994).

Unlike the majority opinion in this case, I do not believe that the

validity of PERB’s rule depends on Iowa’s open-meetings law. Negotiations

are specifically exempted from compliance with the requirements of the

open-meetings law. Iowa Code § 20.17(3). Also, the more specific

statutory provisions governing collective bargaining in Iowa Code sections
20.17(2)–(4) and 262.9(16) should control over the more general open-

meetings law governing myriad agency action in Iowa Code chapter 21.

See id. § 4.7; Rilea v. Iowa Dep’t of Transp., 919 N.W.2d 380, 388 n.6 (Iowa

2018). And besides, the goals of the open-meetings requirement are

already accomplished by a requirement to make the collective bargaining

agreement public, Iowa Code § 20.17(4); a formalistic ritual to adopt the

terms does nothing further.

To be clear, this case does not ask us to determine whether it is

inappropriate for a public employer to demand an approval opportunity at

an open meeting before a binding collective bargaining agreement may be

formed. No one contends that any provision of chapter 20 requires an

employer to empower a designated representative to make binding offers.

Thus, prior collective bargaining negotiations may have involved employer

ratification, but the factual circumstances in those historical negotiations

do not resolve the legal question before us. The legal question before us is

whether an employer may empower its designated representative to make

binding offers which do not necessitate employer ratification. Sections
20.17(2), 20.17(4), and 262.9(16) say yes, while the administrative rule
 24

says no. Our task is to determine whether the administrative rule is valid,

and I do not believe it is.

With a proper understanding of the law governing this case—a

public employer may empower a designated representative to make a

binding offer in collective bargaining negotiations—we must determine if

there is a genuine dispute on whether the Regents’ designated

representative, Michael Galloway, made a binding offer. The Regents may

not have intended to authorize Galloway to make a binding offer because

of their reliance on the invalid rule. But they did not present this argument
to the district court. Likewise, the district court did not grant summary

judgment on that basis. Instead, the Regents argued, and the district

court agreed, that the Regents could not have so authorized Galloway

because of the rule. The reasoning presented by the Regents and adopted

by the district court falters because the rule was invalid. And since we

cannot affirm a grant of summary judgment on a basis that was not

presented to and considered by the district court, see Lamasters v. State,

821 N.W.2d 856, 864 (Iowa 2012); Meier v. Senecaut, 641 N.W.2d 532, 537

(Iowa 2002), I conclude that SEIU should survive summary judgment on

this point

Finally, there are two issues associated with revocation of the

January 10 offer after SEIU indicated it agreed to the terms but before the

union membership voted to ratify it. The first issue is legal and regards

whether a public employer’s collective bargaining negotiator may revoke a

binding offer after the union indicates its acceptance but before the union

ratifies the proposed agreement. We need not answer that legal question

in this case, however, because SEIU survives summary judgment even if
the Regents can revoke under such circumstances.
 25

The record shows either that it is undisputed that the Regents did

not revoke the offer or, at least, that there is a genuine dispute on whether

the Regents revoked. The district court found it undisputed that the

January 10 letter was not revoked. In support, the district court noted

that SEIU’s representative asserted by affidavit that the Regents’

representatives did not expressly revoke the January 10 offer, and the

Regents’ representatives did not dispute the statement in their affidavits.

Even putting aside the Regents’ failure to dispute SEIU’s assertion,

I think a reasonable fact finder could conclude that the Regents’
representative did not revoke the January 10 offer. Viewing the record in

the light most favorable to SEIU, the nonmoving party, Galloway stated on

January 31 that the Regents did not believe the parties had reached an

agreement. Whether that statement amounts to a revocation is a factual

question that is inappropriate for us to resolve on summary judgment. A

reasonable fact finder, it seems to me, could credit SEIU’s testimony and

thereby believe that Galloway’s ambiguous statement only amounted to an

indication that the union members had not yet ratified the agreement.

Moreover, as the majority opinion in this case points out, Galloway did not

expressly revoke the January 10 offer.

Therefore, I would vacate the grant of summary judgment and

remand to the district court. Accordingly, I respectfully dissent. Below

are the granular details.

II. Whether Iowa Code Chapter 20 Permits a Public Employer’s
Negotiator to Make a Binding Offer.

The first question we must answer is whether a public employer

engaged in collective bargaining can delegate to its designated
representative the power to make a binding offer. Prior to the enactment

of the Public Employees Relations Act of 1974, 1974 Iowa Acts ch. 1095,
 26

§ 17, the answer to that question may have been no. See State Bd. of

Regents v. United Packing House Food & Allied Workers, Local No. 1258,

175 N.W.2d 110, 113 (Iowa 1970) (explaining that the Board of Regents

can meet with union representatives without improperly delegating

legislative powers to private persons because the final decision remains in

the Board of Regents); see also Serv. Emps. Int’l Local No. 55 v. Cedar

Rapids Cmty. Sch. Dist., 222 N.W.2d 403, 408–09 (Iowa 1974) (stating that

as a result of a school district’s long-standing procedure, a union “knew

or had reason to know the school board had the ultimate authority and
power to accept, reject or modify any and all demands or requests made

by the representatives of the Union” and further that “[a]s a matter of fact,”

it was “understood . . . that the negotiations with representatives of the

School District were only a part of the process by which the school board

makes its final policy determination with regard to the wages and working

conditions of the custodial and maintenance employees”).

The Public Employment Relations Act of 1974, however, commenced

the comprehensive statutory regulation of public employer collective

bargaining. See Lawrence E. Pope, Analysis of the Iowa Public Employment

Relations Act, 24 Drake L. Rev. 1, 2 (1974). The Act authorizes a public

employer to “designate any individual as its representative to engage in

collective bargaining negotiations.” Iowa Code § 20.17(2). That language

does not qualify the public employer’s authority to empower a

representative in negotiations. The question then becomes whether

authority to engage in negotiations includes the authority to make a

binding offer.

“Our ultimate goal in interpreting statutes is to determine and give
effect to legislative intent.” Holiday Inns Franchising, Inc. v. Branstad, 537

N.W.2d 724, 728 (Iowa 1995). “[W]e interpret statutes consistent with
 27

their normal meaning” and refrain from a strained interpretation. State v.

Boggs, 741 N.W.2d 492, 502 (Iowa 2007).

As discussed below, I believe negotiations can include binding offers.

Therefore, the statute allows a public employer to empower its designated

representative to make a binding offer.

The term “negotiations” is not defined in chapter 20. See Iowa Code

§ 20.3. “[W]hen the legislature has not defined a term, we look to the

common meaning of that term in interpreting the statute.” State v. Tesch,

704 N.W.2d 440, 451 (Iowa 2005). We may refer to prior decisions of this
court and others, similar statutes, dictionary definitions, and common

usage. Id.; Bernau v. Iowa Dep’t of Transp., 580 N.W.2d 757, 761 (Iowa

1998).

The common meaning of negotiate includes the ability to make a

binding offer. According to Webster’s, the term “negotiate” means “to

communicate or confer with another so as to arrive at the settlement of

some matter” and to “meet with another so as to arrive through discussion

at some kind of agreement or compromise about something.” Negotiate,

Webster’s. Similarly, Black’s defines “negotiation” as “[a] consensual

bargaining process in which the parties attempt to reach agreement on a

disputed or potentially disputed matter. Negotiation usu[ally] involves

complete autonomy for the parties involved, without the intervention of

third parties.” Negotiation, Black’s Law Dictionary (10th ed. 2014). Those

definitions connote an ability to make a binding offer, because otherwise,

negotiating would not arrive at settlement or compromise. More pointedly,

the definitions do not exclude binding offers.

That natural meaning of negotiations—as including, or not
excluding, the ability to make a binding offer—is corroborated by other

jurisdictions’ understanding of the term. “[T]he word ‘negotiating’ . . . is a
 28

general word coming to us from the Latin, and signifying to carry on

negotiations concerning and so to conduct business, to conclude a

contract, or to transfer or arrange.” Newport Nat’l Bank v. Bd. of Educ., 70

S.W. 186, 186 (Ky. Ct. App. 1902) (emphasis added). “The word ‘negotiate’

does not merely mean haggling over and changing contract terms. To

negotiate also means to ‘procure agreement’ by means of discussion.”

Abbate v. Abbate, 441 N.Y.S.2d 506, 516 (App. Div. 1981). “Where, as

here, certain terms have been established which would result in

settlement, negotiate means more than merely talking to the opposing
party. It means to settle if the specified terms have been met.” Shields v.

Keystone Cogeneration Sys., Inc., 620 A.2d 1331, 1334 (Del. Super. Ct.

1992). “Negotiations occur only where there exists an opportunity for an

offeror to modify or revise its proposal.” Drexel Heritage Furnishings, Inc.

v. United States, 7 Cl. Ct. 134, 154 (Cl. Ct. 1984). A federal regulator

defined the term “negotiations” as “a series of offers and counter-offers

until a mutually satisfactory agreement is concluded by the parties.” Airco,

Inc. v. Energy Research & Dev. Admin., 528 F.2d 1294, 1298 (7th Cir. 1975)

(quoting To Murray Schaffer, 51 Comp. Gen. 479, 480 (1972)). An

Oklahoma court believes that the ordinary meaning of negotiate

is to “bargain with another respecting a purchase and sale” .
. . in an effort to consummate a sale. In other words there
must be conduct that places one in the position of bargaining
with a party to settle the terms . . . ordinarily on behalf of one
party or the other.

Loyd v. Saffa, 719 P.2d 844, 847 (Okla. Ct. App. 1986) (quoting Black’s

Law Dictionary 934 (5th ed. 1979)), overruled on other grounds by

Commodore Home Sys., Inc. v. Citicorp Acceptance Co., 780 P.2d 674, 678

(Okla. 1989). The Maine Supreme Judicial Court explained that unless
extrinsic evidence suggests a contrary meaning, “the term ‘negotiating’ . . .
 29

means a dialogue aimed at the adjustment or resolution of differences in

order to strike a bargain.” Gendron Realty, Inc. v. N.J. Gendron Lumber

Co., 519 A.2d 723, 725 (Me. 1987). Missouri utilizes the following

dictionary definition of negotiate: “to communicate or confer with another

so as to arrive at the settlement of some matter.” Wenzel v. Holland-Am.

Ins. Co. Tr., 13 S.W.3d 643, 646 (Mo. 2000) (en banc) (quoting Webster’s

Third New International Dictionary 1514 (1961)). In Colorado, “as it

pertains to [real estate] licensing, the term ‘negotiate’ includes the act of

bringing two parties together for the purpose of consummating a real
estate transaction.” Brakhage v. Georgetown Assocs., Inc., 523 P.2d 145,

147 (Colo. App. 1974).

The meaning of negotiations in section 20.17(2) may also be

ascertained by other provisions in chapter 20. State v. Kamber, 737

N.W.2d 297, 299 (Iowa 2007) (stating that “a statute is interpreted as an

integrated whole”). We have frequently said that “[w]hen the same term

appears multiple times in the same statute, it should have the same

meaning.” See, e.g., State v. Paye, 865 N.W.2d 1, 7 (Iowa 2015); see also

Carson v. Roediger, 513 N.W.2d 713, 716 (Iowa 1994) (same).

The use of the term “negotiations” elsewhere in Iowa Code chapter

20 demonstrates a legislative intent to allow a public employer’s

representative to make a binding offer on behalf of the employer during

negotiations. The definition of “impasse” is “the failure of a public

employer and the employee organization to reach agreement in the course

of negotiations.” Iowa Code § 20.3(6); see also Austin v. Kelley, 88-HO-

3475, at 9 (Nov. 16, 1988)9 (concluding that impasse procedures are part

9Available at https://www.iowaperb.org/Document?db=IOWA-STATE-PERBS
&query=(select+0+(byhits+(eq+ISSUANCE_DATE+%601988%2F11%2F16))) [https://
perma.cc/4LTC-SCNN].
 30

of the negotiation process). Thus, an agreement can be reached during,

or “in the course of,” negotiations. The ability to reach an agreement

during negotiations implies the ability to make a binding offer during

negotiations. It certainly does not exclude such ability.10

There is no reason to believe that the meaning of negotiations in the

definition of impasse or in other provisions of chapter 20 is different from

the meaning of negotiations in Iowa Code section 20.17(2). Thus, we

10There are two other provisions in chapter 20 that suggest the term “negotiations”

includes the ability to reach agreement and, therefore, the ability to make a binding offer.
In section 20.9, the legislature designates the mandatory, permissive, and excluded
matters in the scope of negotiations. Iowa Code § 20.9. If negotiations only means
discussions prior to a binding offer or agreement, the intent of section 20.9 would be
thwarted because the final agreement could include matters that are excluded from the
scope of negotiations. The more natural understanding of negotiations, once again,
includes a binding offer. This understanding also comports with our caselaw. For
instance, in City of Mason City v. Public Employment Relations Board, 316 N.W.2d 851,
854 (Iowa 1982), we said that the legislature excluded pensions from the scope of
negotiations because “it is felt that significant matters of governmental policy, which
pensions would seem to be from sheer cost alone, should remain outside the scope of
negotiation so that citizen participation will not be precluded.”
In another section, chapter 20 authorizes negotiations in a manner that would be
futile if the meaning of the term “negotiations” did not include the ability to make a
binding agreement. Iowa Code section 20.15(6)(c) states that collective bargaining
agreements “shall be for two years” and “[t]he effective date of any such agreement shall
be July 1 of odd-numbered years,” but if a union’s
exclusive bargaining representative is certified on a date which will prevent
the negotiation of a collective bargaining agreement prior to July 1 of odd-
numbered years for a period of two years, the certified collective bargaining
representative may negotiate a one-year contract with the public employer
which shall be effective from July 1 of the even-numbered year to July 1
of the succeeding odd-numbered year when new agreements shall become
effective.
Iowa Code § 20.15(6)(c). If negotiations only meant discussions without the ability to
enter a binding agreement, the exception for one-year contracts in even-numbered years
would be ineffectual. This is because the union and public employer would be able to
discuss a one-year agreement for an even-numbered year, but they would be unable to
enter the agreement because collective bargaining agreements “shall be for two years”
and must take effect on July 1 of odd-numbered years. Id. The clear intent of the quoted
exception is to allow the parties to reach a one-year agreement taking effect in an even-
numbered year. And to effectuate that intent, the legislature used the term “negotiate.”
Thus, in section 20.15(6)(c), negotiate includes the ability to propose a binding offer.
 31

should apply a consistent meaning. Paye, 865 N.W.2d at 7; Carson, 513

N.W.2d at 716.

Further, and perhaps most strikingly, Iowa Code chapter 20

imposes no preconditions on an employer to finalize a collective bargaining

agreement. This must be contrasted with the statutory conditions

imposed on a union, which is statutorily required to ratify an agreement

by a majority of secret balloters. Iowa Code § 20.17(4). The absence in

the statutory requirement for employer ratification is meaningful because

we are bound by what the legislature actually said, not what it might have
said. Krull, 522 N.W.2d at 612.

Finally, it is notable that the Iowa Code specifically allows the

Regents “discretion [to] employ or retain attorneys or counselors when

acting as a public employer for the purpose of carrying out collective

bargaining and related responsibilities provided for under chapter 20.”

Iowa Code § 262.9(16). To carry out means “to bring to a successful issue,”

“to put into execution,” and “to continue to an end or stopping point. Carry

out, Webster’s. By allowing an attorney to “carry[] out collective bargaining

and related responsibilities” for the Regents, the legislature permits the

Regents to empower a negotiator at least as much, if not more so, as public

employers are generally permitted to do under section 20.17(2).

In sum, section 20.17(2) permits the public employer to designate a

representative to make a binding offer. Section 262.9(16) further

corroborates that the Regents have such authority. The statutory

provisions show a clear expression and implication that, to the extent the

law prior to enactment of the Public Employment Relations Act did not

permit a public employer to authorize a representative to make a binding
offer, the legislature changed the law. Hines v. Ill. Cent. Gulf R.R., 330
 32

N.W.2d 284, 289 (Iowa 1983). We must next determine whether PERB’s

rule withstands scrutiny in light of that statutory interpretation.

III. Whether PERB’s Rule Is Valid.

A. Introduction. PERB has a rule imposing a ratification

requirement on the public employer before a “tentative” collective

bargaining agreement may take effect. The version of PERB’s rule in effect

during the parties’ collective bargaining discussions stated,

Acceptance or rejection by public employer. The public
employer shall, within ten days of the tentative agreement,
likewise meet to accept or reject the agreement, and shall
within 24 hours of the acceptance or rejection serve notice on
the employee organization of its acceptance or rejection of the
proposed agreement; however, the public employer shall not
be required to either accept or reject the tentative agreement
if it has been rejected by the employee organization.

Iowa Admin. Code r. 621—6.4(3).

The district court held that PERB’s employer ratification

requirement prevented the formation of a collective bargaining agreement

because the Regents did not ratify the tentative agreement reached by the

parties’ representatives and approved by SEIU’s membership. In response

to a challenge to the rule’s validity from SEIU, the district court found the

rule valid because it “merely spells out when and how” a public employer

is to “meet before voting on any action within the scope of its duties” under
Iowa’s open-meetings law.

SEIU reiterates before us its challenge to the validity of PERB’s rule.

“A party aggrieved by application of an administrative rule may challenge

[the rule’s] validity in an independent action where the rule is sought to be

applied.” Jew v. Univ. of Iowa, 398 N.W.2d 861, 864 (Iowa 1987).

The majority opinion in this case holds, consistent with the district
court, that PERB’s rule applies to this case, and in light of Iowa’s open-

meetings law, is valid. And since the administrative rule requires a public
 33

employer to meet to accept a tentative agreement before a collective

bargaining agreement can be formed, the opinion concludes that the

Regents could not delegate authority to the designated representative to

make a binding offer.

The decisional law on PERB’s employer ratification requirement is

sparse and consists of mere characterizations of the rule made in dicta.

In Moravia Community School District v. Moravia Education Association,

460 N.W.2d 172, 178 (Iowa Ct. App. 1990), the court of appeals observed

that the rule gives both the public employer and union the right to accept
or reject the tentative agreement. Likewise, a PERB hearing officer has

explained that “Rule 6.4 . . . essentially provides for a procedure whereby

labor and management must ratify the terms of a proposed or ‘tentative’

collective bargaining agreement.” Local Union 2003, I.B.P.A.T. & Lyon

County, 80-HO-2013, at 3 (Oct. 30, 1981).11 Another PERB hearing officer

stated that, pursuant to the rule, a public employer always has an

obligation to accept or reject the tentative agreement reached by its

negotiating team. AFSCME, AFL-CIO, Local No. 888 & City of Clinton, 77-

HO-838, at 8 n.10 (Feb. 18, 1977).12 No Iowa appellate court has

examined the validity of PERB’s employer ratification requirement.

Indeed, no reported judicial decision even turns on the employer

ratification requirement. In short, this is a case of first impression.

In deciding whether PERB’s rule is valid, I begin by determining the

appropriate standard of review. Following that determination, I apply the

11Available at https://iowaperb.org/Document?db=IOWA-STATE-PERBS&query=

(select+0+(byhits+(eq+ISSUANCE_DATE+%601981%2F10%2F30))) [https://perma.cc/
3J4E-GGD6].
12Available at https://www.iowaperb.org/Document?db=IOWA-STATE-PERBS
&query=(select+1+(byhits+(eq+ISSUANCE_DATE+%601977%2F02%2F18))) [https://
perma.cc/552K-QXCG].
 34

standard to PERB’s rule. Finally, I evaluate the purported relevance of

Iowa’s open-meetings law to the validity of PERB’s rule.

B. Standard of Review.

1. Overview. An agency has only the authority or discretion

delegated by law. Iowa Code § 17A.23(3). An agency cannot expand or

enlarge its authority or discretion beyond the powers delegated to it. Id.

And a grant of rulemaking authority is construed narrowly unless

specifically provided in statute. Id.

Where agency action is based on statutory interpretation, our
standard of review depends on whether the legislature has clearly vested

in the agency the authority to interpret the statutory provision. Id.

§ 17A.19(10)(c), (l). If the legislature has so vested interpretive authority,

we determine whether the interpretation is “irrational, illogical, or wholly

unjustifiable.” Id. § 17A.19(10)(l). If the legislature has not clearly vested

interpretive authority in the agency to interpret the provision, we

determine whether the agency’s interpretation is “erroneous.” Id.

§ 17A.19(10)(c). In the latter situation, our standard of review is for

corrections of error at law and we are free to substitute our interpretation

of the statute de novo. Tremel v. Iowa Dep’t of Revenue, 785 N.W.2d 690,

692–93 (Iowa 2010). As is apparent, an agency interpretation is entitled

to a greater amount of deference when the legislature has vested the

agency with interpretive authority.

The Iowa approach to reviewing agencies’ statutory interpretation is

based on the following rationale:

It would be improper for a court to simply substitute,
without any deference to the agency’s view, the court’s own
view of the meaning of a statutory term that the General
Assembly had clearly delegated to the discretion of any agency
to elaborate, because in that situation the court would be
 35
violating the statute delegating that discretionary authority to
the agency.

Arthur E. Bonfield, Amendments to Iowa Administrative Procedure Act,

Report on Selected Provisions to Iowa State Bar Association and Iowa State

Government 63 (1998) [hereinafter Bonfield]. See generally Cary

Coglianese, Chevron’s Interstitial Steps, 85 Geo. Wash. L. Rev. 1339, 1349

(2017) (“[A] court doing anything other than deferring would be failing to

honor the law itself, as these statutes expressly give the agencies the

responsibility to define pertinent statutory terms.”). That rationale is an

instance of the “faithful agent” theory of the judiciary’s role in statutory

interpretation. Rooted in the constitutional separation of powers, the

faithful agent theory holds that judges should give effect to the legislature’s

intent because the constitutional power to make law is located in the

legislature. See Valerie C. Brannon, Cong. Research Serv., R45153,

Statutory Interpretation: Theories, Tools, and Trends 4–5 (2018),

https://fas.org/sgp/crs/misc/R45153.pdf.

The legislature may clearly vest interpretive authority in two ways.

Renda, 784 N.W.2d at 11–14. One way is through an express grant of

interpretive authority. Id. at 11. An express grant of interpretive authority

occurs when the legislature “explicitly address[es] in legislation the extent
to which an agency is authorized to interpret a statute.” Id. For instance,

in Iowa Association of School Boards v. Iowa Department of Education, 739

N.W.2d 303, 307 (Iowa 2007) (quoting Iowa Code § 256.9(16) (2003)), we

noted that the department of education’s enabling statute stated that “the

director ‘shall . . . [i]nterpret the school laws and rules relating to the

school laws.’ ”

In addition, even in the absence of an express grant, the legislature
may clearly vest in an agency the authority to interpret certain statutory
 36

phrases or provisions. Renda, 784 N.W.2d at 11–14; see Bonfield at 63.

This is based on the recognition that the IAPA’s use of the term “clearly” is

less restrictive than the term “expressly.” Renda, 784 N.W.2d at 11.

Under this mode of analysis, broad articulations concerning agency

authority are avoided; instead, the focus is on the particular statutory

phrase or provision at issue in a given case. Renda, 784 N.W.2d at 11–14.

For example, in Andover Volunteer Fire Department v. Grinnell Mutual

Reinsurance, 787 N.W.2d 75, 80 (Iowa 2010), we determined that the

legislature did not intend to grant the workers’ compensation
commissioner the authority to interpret the statutory phrase “summoned

to duty.”

Therefore, to determine whether the legislature has clearly vested

PERB with interpretive authority relevant to the question before us, we

must consider both express and implicit vesting of interpretive authority.

I first address express authority.

2. Express vesting of interpretive authority. In State v. Public

Employment Relations Board, 744 N.W.2d 357, 360 (Iowa 2008), we

considered whether PERB was granted interpretive discretion with respect

to Iowa Code chapter 20 by examining the powers vested in the agency.

We noted that the statute provided that

[t]he general assembly declares that the purposes of the public
employment relations board established by this chapter are to
implement the provisions of this chapter and adjudicate and
conciliate employment-related cases involving the state of Iowa
and other public employers and employee organizations.

Id. (quoting Iowa Code § 20.1 (2001)). We also observed that the statute

listed numerous powers and duties of PERB, including that PERB shall

“[a]dminister the provisions [of this chapter]” and “adopt rules ‘to carry out
the purposes of this chapter.’ ” Id. (quoting Iowa Code §§ 20.1, .6 (2007)).
 37

We concluded that “[w]hile it is obvious the legislature has afforded PERB

extensive powers to implement and administer the provisions of chapter

20, it is not clear that the legislature intended to delegate interpretive

powers to PERB.” Id. We therefore reviewed PERB’s statutory

interpretation under the less deferential standard under Iowa Code section

17A.19(10)(c). Id.

Our analysis in Public Employment Relations Board predated the

distinction between express and implicit vesting of interpretive authority

explicated in Renda, 784 N.W.2d at 11–14. We did not use Renda’s
phraseology or analytical approach. See Pub. Emp’t Relations Bd., 744

N.W.2d at 360. Instead, we broadly considered whether the agency had

interpretive authority over the entirety of chapter 20 by virtue of the

powers vested in the agency and did not consider whether the statutory

phrases or provisions at issue in the case clearly vested interpretive

authority in the agency. See id. Therefore, the precedential value of the

decision is limited to this: the provisions we examined do not constitute

an express grant of interpretive authority over the entirety of chapter 20.

We employed a similar analytical approach in Waterloo Education

Association v. Iowa Public Employment Relations Board, 740 N.W.2d 418,

419–20 (Iowa 2007). We explained that because the interpretive question

of whether a proposal is a mandatory subject of collective bargaining was

not “explicitly” vested in PERB’s discretion, our review was for correction

of errors at law. Id. at 420.

Following those decisions, in 2010, the legislature expressly vested

in PERB interpretive authority over chapter 20. 2010 Iowa Acts ch. 1165,

§ 6 (codified at Iowa Code § 20.6(1) (2011)). No longer was PERB only
instructed to “[a]dminister” chapter 20; the new provision stated that

“[PERB] shall . . . [i]nterpret, apply, and administer the provisions of this
 38

chapter.” Iowa Code § 20.6(1) (2011). The legislature withdrew that

authority on February 17, 2017. 2017 Iowa Acts ch. 2, § 2 (codified at

Iowa Code § 20.6(1) (2018)).

The majority opinion in this case would defer to PERB’s

interpretation of Iowa Code chapter 20 as to its statutory authority to

promulgate rule 621—6.4(3) because of the legislature’s 2010 express

grant of interpretive authority. The reasoning, however, is unsound.

There are three problems with relying on the 2010 express grant to

defer to PERB. First, an express grant of interpretive authority is not
relevant to our standard of review if it did not “appl[y] to the agency action

at the time that action was taken.” Iowa Code § 17A.19(8)(b) (2017).

Consequently, an express grant of interpretive authority postdating an

agency action based on interpretation is not a reason to defer to the agency

interpretation. Second, even if one were to interpret the section

17A.19(8)(b) requirement to permit for retroactive application of an express

grant of interpretive authority, there is no indication of legislative intent to

make the 2010 express grant retroactive. Third, if the 2010 express grant

is viewed as retroactive, the same view should be taken on the 2017

withdrawal of express interpretive authority.

For purposes of brevity, I focus on the first proposition. The relevant

question for determining our standard of review is not whether an agency

has ever been granted interpretive authority, or even whether the Iowa

statutes generally applicable during the factual circumstances of a

particular case would grant interpretive authority to an agency that takes

action during that time. Instead, the relevant question is whether the

agency action challenged by the aggrieved party is based on an
interpretation made by the agency while it had interpretive authority.
 39

The IAPA, I think, mandates this approach. The IAPA instructs the

court to “reverse . . . agency action” under a host of conditions, two of

which concern agency action based on statutory interpretation. See id.

§ 17A.19(10)(c), (l). As noted above, the distinction between the two

provisions is whether interpretation of the statutory provision in question

has “clearly been vested by a provision of law in the discretion of the

agency.” Id. I acknowledge that, standing alone, those IAPA sections could

be read as requiring deference to an agency interpretation if, at any time,

interpretive authority has “clearly been vested by a provision of law in the
discretion of the agency.” But that reading is foreclosed by a neighboring

provision of section 17A.19.

Section 17A.19(8)(b) instructs that “[t]he validity of agency action

must be determined in accordance with the standards of review provided

in this section, as applied to the agency action at the time that action was

taken.” Id. § 17A.19(8)(b) (emphasis added). Pursuant to section

17A.19(8)(b), we must apply our standard of review to the circumstances

existing when the agency took action. See Brummer, 661 N.W.2d at 168

n.1 (Iowa 2003) (explaining that under section 17A.19(8)(b), “we must

focus on the agency’s actions during the time period in which” the agency

took the action challenged by appellant). Thus, in order for an agency

interpretation to be granted deference, the IAPA requires a temporal

identity between interpretive authority and the agency action based on

statutory interpretation.

Moreover, the grammatical subject at issue in Iowa Code section

17A.19(10) is “agency action.” The IAPA thus instructs us to review the

circumstances of that action. There is no suggestion in the IAPA that
agency action may be somehow temporally disconnected from, or not an

exercise of, a clear vesting of interpretive authority. Similarly, the statute
 40

is silent on the notion that there may be a temporal disconnect between

the provision of law interpreted and the provision of law vesting the agency

with interpretive authority.

Consider our deference rules in practice. Suppose an agency takes

final action based on its interpretation of a statute. Later, the legislature

expressly vests the agency with interpretive authority and, afterwards, a

case challenging the agency action comes before us. Then, the legislature

withdraws the express grant of interpretive authority, and another case

comes before us involving a challenge to the same agency action. Would
we apply a different standard of review to the same agency action in the

two cases? The IAPA answers that problem in telling us to review “agency

action,” not later circumstances, and, even more specifically, “agency

action at the time that action was taken.” Id. § 17A.19(8)(b), (10).

Additionally, the temporal identity requirement is consistent with

the rationale for deferring to agency interpretations. As explained above,

the rationale for deference is based on the notion that if the legislature

delegates discretionary authority to an agency to interpret a statutory

term, the court would violate that legislative choice were it to substitute

its own view of the proper interpretation without any deference to the

agency. Bonfield at 63. By the same token, where an interpretation

predates an express grant of interpretive authority, the court honors the

prior legislative choice to not grant interpretive authority by refusing to

defer. Moreover, the rationale is premised on the notion that the agency

actually exercises its express interpretive authority, something which

would be impossible for an agency that acted before the express grant was

in existence.
Our precedent also demands a temporal identity between

interpretation and interpretive authority. Under the IAPA, we have
 41

explained that “[o]ur standard of review depends on the aspect of the

agency’s decision that forms the basis of the petition for judicial review.”

Simon Seeding & Sod, Inc. v. Dubuque Human Rights Comm’n, 895 N.W.2d

446, 455 (Iowa 2017) (quoting Burton v. Hilltop Care Ctr., 813 N.W.2d 250,

256 (Iowa 2012)). So, where an agency’s statutory interpretation forms

the basis of the challenge to the agency action, our standard of review

depends on that interpretation. Requiring a temporal identity between the

agency’s interpretation and the existence or nonexistence of clearly vested

interpretive authority ensures that our standard of review depends on the
interpretation. Without such a requirement for temporal identity, our

standard of review would instead depend on an unbridled rifling through

past and present statutes to uncover any express delegation of interpretive

authority.

Further, an agency has only the authority or discretion delegated by

law. Iowa Code § 17A.23(3); see Brakke v. Iowa Dep’t of Nat. Res., 897

N.W.2d 522, 533 (Iowa 2017) (“The power of the agency is limited to the

power granted by statute.”). The provision codifies the law that an agency

“may not exercise any authority outside the scope of that lawfully

delegated authority.” Bonfield at 73. A retroactive delegation of

interpretive authority conflicts with that provision because it would allow

an agency to act with interpretive authority it lacks at the time of action.

If at all possible, we harmonize apparent conflicts among statutes.

Papillon v. Jones, 892 N.W.2d 763, 773 (Iowa 2017).

For similar reasons, a retroactive delegation of interpretive authority

could present separation of powers problems. We interpret statutes to

avoid constitutional problems. In re Guardianship of Kennedy, 845 N.W.2d
707, 711–14 (Iowa 2014). Our constitution provides for a separation of

powers in stating that “no person charged with the exercise of powers
 42

properly belonging to [either the legislative, executive, or judicial

department] shall exercise any function appertaining to either of the

others.” Iowa Const. art. III, § 1. Thus, an agency cannot exercise a

nondelegated lawmaking power held by the legislature or judicial branch.

When the express delegation is not in existence, the agency does not act

with its power. See City of Arlington v. Fed. Commc’ns Comm’n, 569 U.S.

290, 312, 133 S. Ct. 1863, 1877 (2013) (Roberts, C.J., dissenting) (“An

agency cannot exercise interpretive authority until it has it . . . .”). A

retroactive delegation of interpretive power would seem to violate the
constitutional requirement of separation of powers because, at the time

the agency acted, it lacked interpretive power.

This approach appears to be consistent with federal law. The

Supreme Court recognizes that Congress may explicitly or implicitly leave

a gap for the agency to fill. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,

Inc., 467 U.S. 837, 843–44, 104 S. Ct. 2778, 2782 (1984). “If Congress

has explicitly left a gap for the agency to fill, there is an express delegation

of authority to the agency to elucidate a specific provision of the statute by

regulation.” Id. In such circumstances, “any ensuing regulation” is

entitled to deference. United States v. Mead Corp., 533 U.S. 218, 227, 121

S. Ct. 2164, 2171 (2001) (emphasis added). By its use of the word

“ensuing,” the Court suggests that regulations entitled to deference are

those which occur after or as a result of the explicit delegation. And the

Court’s decisions bear out that deference is accorded agency actions taken

pursuant to an express delegation. See, e.g., Atkins v. Rivera, 477 U.S.

154, 162, 106 S. Ct. 2456, 2461 (1986) (“Because the Secretary’s

regulation . . . is adopted pursuant to the explicit grant of rulemaking
authority . . . it is ‘entitled to more than mere deference or weight.’ ”

(quoting Schweiker v. Gray Panthers, 453 U.S. 34, 44, 101 S. Ct. 2633,
 43

2640 (1981)); see also Rodriguez v. Sec’y of Health & Human Servs., 856

F.2d 338, 341 (1st Cir. 1988) (“The Secretary’s rules governing maximum

fees are . . . made pursuant to an explicit statutory delegation. They have,

therefore, ‘legislative effect.’ ” (quoting Hogan v. Heckler, 769 F.2d 886, 888

(1st Cir. 1985))).

In addition, the reason for refusing to defer here is consistent with

the majority opinion released today in United Electrical, Radio & Machine

Workers of America v. Iowa Public Employment Relations Board, ___ N.W.2d

___ (Iowa 2019). There, the majority holds that it would not employ the
express delegation theory to defer to an agency interpretation made after

the legislature withdrew express interpretive authority from the agency’s

organic statute. Id. at ___. Conversely, is there a reason to defer to an

agency interpretation that preceded an express delegation of interpretive

authority? The answer to this question, I think, must also be no.

Underlying the answer to both scenarios is the notion that the legislature

has reserved the right to delegate the authority held by administrative

agencies. Iowa Code § 17A.23(3). We should not subvert the legislature’s

choice.

Therefore, we should interpret Iowa Code section 17A.19(10)(c), (l)

as requiring a temporal identity between an agency action based on

statutory interpretation and interpretive authority vested by a provision of

law.

3. No express grant of interpretive authority applied when PERB

interpreted chapter 20 to enact or modify its employer ratification

requirement. PERB’s rule was initially promulgated in 1975. See Iowa

Admin. Code r. 660—6.4 (1975). At that time, the rule stated that the
public employer’s governing body must accept or reject a proposed
 44

agreement but only after a majority of voting members of the employee

union supported ratification of the agreement. See id.

PERB substantively modified its rule a few times in the seven years

after 1975. Just one year after initially promulgating the rule, PERB

changed the rule to only require that “[t]he public employer shall serve

notice on the employee organization of its acceptance or rejection of the

proposed agreement.” See id. r. 660—6.4 (Supp. Sept. 22, 1976). That

language removed the conditions that the union ratify the agreement

before the employer does so and that acceptance be done by the employer’s
governing body. See id. Then, in 1979, PERB reinserted the requirement

for the public employer to wait until the union membership ratifies the

agreement before meeting to accept or reject the agreement. See id. r.

660—6.4 (Supp. Oct. 3, 1979). Finally, in 1982, PERB again removed the

waiting requirement and provided that, while a public employer had to

meet to approve or reject a tentative agreement, it need not do so if the

tentative agreement had already been rejected by the union membership.

See id. r. 660—6.4 (Supp. Nov. 10, 1982).

PERB’s initial rule and the three modifications between 1976 and

1982 are based on interpretations of the statute. At the time, just as it did

during the parties’ negotiations from 2016 to 2017, chapter 20 authorized

a public employer to designate an individual to engage in collective

bargaining negotiations, see Iowa Code § 20.17(2) (1975), and the only

express ratification requirement applied to public employees, see id.

§ 20.17(4). Since PERB’s employer ratification requirement and associated

waiting period are not found on the face of the statute, they necessarily

involve statutory interpretations.
Meanwhile, from 1975 to 1982, PERB did not have express

interpretive authority over chapter 20. PERB’s powers and duties were the
 45

same as, or fewer than, those we found to not grant interpretive authority

in Public Employment Relations Board, 744 N.W.2d at 360. See Iowa Code

§ 20.6 (1975) (providing the board shall “[a]dminister the provisions of this

chapter”). Moreover, of course, the express delegation of interpretive

authority granted in 2010 was not in existence in 1975. Therefore, when

it promulgated and amended its rule in 1975 and through 1982, PERB

was not clearly vested with interpretive authority by an express provision.

PERB’s employer ratification requirement has not been substantively

changed since 1982.
In 2015, PERB made “nonsubstantive amendments” to the public

notification requirements also located in rule 6.4. 38 Iowa Admin. Bulletin

1046, 1046 (Dec. 9, 2015). PERB added the following clarifying phrase,

indicated in italics, to the notification requirement:

The public employer shall, within ten days of the tentative
agreement, likewise meet to accept or reject the agreement,
and shall within 24 hours of the acceptance or rejection serve
notice on the employee organization of its acceptance or
rejection of the proposed agreement . . . .”

Id. at 1048. That amendment does not modify the employer ratification

requirement. Moreover, the amendment did not interpret the statutory

authority to designate a representative to engage in negotiations in Iowa
Code section 20.17(2) or the statutory ratification requirements in Iowa

Code section 20.17(4). It is simply, as PERB itself put it, a

“nonsubstantive” change to clarify PERB’s notification requirement. Id. at

1046. And, the amendment was made pursuant to PERB’s rulemaking

authority under Iowa Code section 20.6(5), not its interpretive authority.

Id.

The majority, therefore, is wrong to assert that we should defer to
PERB’s rule because, according to the majority, PERB’s 2015 amendments
 46

“necessarily construed” chapter 20. Under the majority’s approach, any

administrative action would merit deference under Iowa Code section

17A.19(10)(l) so long as an express delegation of interpretive authority

existed at the time. That cannot be right. Deference is only granted under

section 17A.19(10)(l) to an agency action that is (i) based on statutory

interpretation and (ii) prejudicial to the substantial rights of the person

seeking judicial relief. The 2015 amendments are neither.

Consequently, the agency action involved in this case is based on an

interpretation of Iowa Code chapter 20 by an agency that was not clearly
vested with interpretive authority by an express grant of authority. As

such, unless PERB has implicit interpretive authority over Iowa Code

section 20.17(2), (4), our review is for correction of errors at law. Iowa

Code § 17A.19(10)(c).

4. Implicit vesting of interpretive authority. As noted above, the

legislature may clearly vest interpretive authority even if there is no

express grant of interpretive authority. Renda, 784 N.W.2d at 11–14. In

evaluating whether the agency has implicit interpretive authority, the

focus is on the particular statutory phrase or provision at issue in a given

case. Id. at 11–14. “[B]road articulations of an agency’s authority, or lack

of authority, should be avoided in the absence of an express grant of broad

interpretive authority.” Id. at 14.

To determine that the legislature has clearly vested interpretive

authority in the absence of an express grant, we must be “firmly convinced

that ‘the legislature actually intended (or would have intended had it

thought about the question) to delegate to the agency interpretive power

with the binding force of law over the elaboration’ of the terms.” Id. at 14
(quoting Bonfield at 63). The “clearly been vested” requirement is more

stringent than the view that federal law affords deference to an agency
 47

interpretation when the language of a statute does not clearly and

unambiguously answer a particular question. Bonfield at 63. We must

examine the phrases or statutory provisions to be interpreted, their

context, the purpose of the statute, the functions of and duties imposed

on the agency, and other practical considerations to determine whether

the legislature intended to give interpretive authority to an agency. Renda,

784 N.W.2d at 11–12.

When the statutory provision being interpreted is a substantive term

within the special expertise of the agency, we have concluded that the
agency has been vested with the authority to interpret the provision. Id.

at 14 (collecting cases). For instance, in Evercom Systems, Inc. v. Iowa

Utilities Board, 805 N.W.2d 758, 762–63 (Iowa 2011), we found the utilities

board had been vested with authority to interpret the statutory phrase

“unauthorized change in service” because it was a substantive term within

the special expertise of the agency. We are also more likely to defer to an

agency interpretation when the agency necessarily must interpret the

statutory language at issue in carrying out its duties, but that basis

standing alone is unlikely to be sufficient to warrant deference. See

Ramirez-Trujillo v. Quality Egg, L.L.C., 878 N.W.2d 759, 769–70 (Iowa

2016); Iowa Ins. Inst. v. Core Grp. of Iowa Ass’n for Justice, 867 N.W.2d 58,

65, 77 (Iowa 2015).

On the other hand, when provisions to be interpreted are found in a

statute other than the statute the agency has been tasked with enforcing,

or where a term has an independent legal definition that is not uniquely

within the subject matter expertise of the agency, we conclude the agency

has not been vested with interpretative authority. Banilla Games, Inc. v.
Iowa Dep’t of Inspections & Appeals, 919 N.W.2d 6, 12–13 (Iowa 2018);

Renda, 784 N.W.2d at 14 (collecting cases). Similarly, we refuse to find
 48

interpretive authority over statutory language that is not complex or

specialized, or which does not appear on its face to be technical. See

Banilla Games, 919 N.W.2d at 13; Irving v. Emp’t Appeal Bd., 883 N.W.2d

179, 185 (Iowa 2016).

For instance, in Renda, we concluded that the Iowa Civil Rights

Commission did not have interpretive authority over the terms “employee”

and “dwelling.” 784 N.W.2d at 14. Our analysis turned on the facts that

both terms have specialized legal meaning, are widely used in areas of law

other than the civil rights arena, and required for their interpretation the
agency to consider provisions of law in other statutes. Id. Likewise, in

Neal v. Annett Holdings, Inc., 814 N.W.2d 512, 519 (Iowa 2012), we decided

that because the phrase “suitable work” is found in other legal contexts

and has a specialized legal meaning extending beyond the context

presented in the case, we would not defer to the commissioner’s

interpretation of the phrase in the workers’ compensation statute. In

Simon Seeding & Sod, we held that the Dubuque Human Rights

Commission was not entitled to deference for its interpretation of the

phrase “regularly employs” because the phrase “is not a specialized term

of art requiring the agency’s unique expertise to apply” and “is used in

other Iowa statutes.” 895 N.W.2d at 455–56. And in Bluml v. Dee Jay’s

Inc., 920 N.W.2d 82, 84 (Iowa 2018), we explained that the phrase “aris[es]

out of . . . employment” is not technical or within the special expertise of

the workers’ compensation commissioner.

We have also been clear that rulemaking authority is not a

conclusive determination of interpretive authority. Our precedent is

replete with instances where we have determined that an agency was not
clearly vested with interpretive authority despite the presence of

rulemaking authority. See Iowa Dental Ass’n v. Iowa Ins. Div., 831 N.W.2d
 49

138, 143–44 (Iowa 2013) (collecting cases); Renda, 784 N.W.2d at 12–13

(same). As we said in Iowa Dental, “[G]ranting the authority to make rules

for enforcement purposes is not the same as granting authority to make

interpretive rules.” 831 N.W.2d at 144, accord Rilea, 919 N.W.2d at 385.

To my mind, the legislature has not implicitly granted PERB

interpretive authority over the designated negotiator provisions in Iowa

Code section 20.17(2) or the union ratification requirements in Iowa Code

section 20.17(4).

Negotiations are a subject that cuts across many areas of statutory
law.13 Even more specifically, other statutory provisions concern a

person’s authority to designate a negotiator to act on her behalf. See, e.g.,

Iowa Code § 9A.102(1) (providing that a student athlete may authorize a

person to negotiate a professional sports or endorsement contract on the

student’s behalf). Similarly, while the Iowa Code provides that the

department of administrative services negotiates collective bargaining

agreements for other agencies, the Regents’ authority to negotiate

collective bargaining agreements is distinguished. Id. § 8A.402(1)(g).

Negotiations are also an issue that courts have developed in the common

law of contracts. See, e.g., In re Marriage of Masterson, 453 N.W.2d 650,

654 (Iowa Ct. App. 1990) (“It goes without saying that whether preliminary

13See,e.g., Iowa Code §§ 6B.2B, .54 (2017) (requiring agency to make a good faith
effort to negotiate before condemning property by eminent domain); id. § 8B.24(5)(b)
(providing conditions under which information technology may be procured by
negotiation); id. § 28J.9(18)(c) (authorizing board of directors to provide criteria for port
authority construction contracts in certain circumstances); id. § 68B.31(8) (authorizing
negotiated settlements of legislative ethics committee complaints); id. § 73.19
(authorizing negotiated contracts in awarding a contract under the targeted small
business procurement goal program); id. § 99D.9C(4)(c)(1) (stating that if parties cannot
reach agreement on the terms of a lease associated with greyhound racing and begin
arbitration, “[t]he parties may continue to negotiate all offers until an agreement is
reached or a decision is rendered by the arbitrators”); id. § 103A.51(7) (defining a
“manufactured or mobile home retailer” as a person who attempts to negotiate a sale of
a manufactured home).
 50

negotiations actually ripen into an oral contract depends upon the

intention of the parties as gleaned from the facts of the case.”). Therefore,

PERB cannot claim any special expertise to interpret the meaning of

negotiations. See Banilla Games, 919 N.W.2d at 12–13; Renda, 784

N.W.2d at 14; cf. Evercom Sys., 805 N.W.2d at 762–63 (finding the

statutory phrase “unauthorized change in service” to be a substantive term

within the special expertise of the Iowa Utilities Board).

Moreover, the union ratification requirements in section 20.17(4) do

not involve complex or specialized subject matter. There is no special
expertise held by PERB relevant to interpreting the provision. Indeed, the

majority opinion in this case admits as much, stating that “SEIU’s

challenge is facially compelling if the statute is read in isolation.” And a

need to refer to other statutes in interpreting the provision—as the Regents

and the majority opinion in this case argue with respect to Iowa’s open-

meetings law—further suggests that the agency is not implicitly vested

with interpretive authority. See Renda, 784 N.W.2d at 14. Granted, PERB

necessarily must apply, and maybe even interpret, section 20.17(4) in

carrying out its duties, but that basis standing alone does not warrant

deference. See Ramirez-Trujillo, 878 N.W.2d at 769–70; Iowa Ins. Inst., 867

N.W.2d at 65, 77.

Finally, even if Iowa’s open-meetings law were relevant to our

analysis, PERB has no special expertise relevant to interpreting its

provisions. And there is no express grant of interpretive authority to PERB

over the provisions of the open-meetings law.

Therefore, PERB’s employer ratification requirement is based on a

statutory interpretation made by an agency not clearly vested with
authority to interpret the statutory provisions. See Iowa Code
 51

§ 17A.19(10)(c). Consequently, our review should be for correction of

errors at law. See Tremel, 785 N.W.2d at 692–93.

C. Application of Standard of Review to PERB’s Rule. PERB’s

employer ratification requirement is erroneous. It is contrary to the

legislature’s authorization of a designated representative to engage in

negotiations in Iowa Code section 20.17(2), as detailed in division II supra.

And the requirement is contrary to the specific authorization for the

Regents to employ an attorney or counselor for “carrying out collective

bargaining and related responsibilities.” Iowa Code § 262.9(16). In
addition, the requirement conflicts with section 20.17(4), which only

requires union ratification; we are bound by what the legislature actually

said, not what it might have said. Krull, 522 N.W.2d at 612. PERB’s rule

might have been valid if it said that a public employer may demand a

ratification opportunity, but that is not what PERB did. Consequently, I

conclude that PERB’s employer ratification requirement must be set aside.

Iowa Code § 17A.19(10)(c).

Before turning to Iowa’s open-meetings law, there is perhaps one

consideration worth mentioning. We have said that legislative

acquiescence to a longstanding administrative rule may be a factor that

saves the rule. See, e.g., Lowe’s Home Ctrs., LLC v. Iowa Dep’t of Revenue,

921 N.W.2d 38, 48 (Iowa 2018). Whatever the merits of that doctrine, a

rule is invalid, “no matter how long it has existed or been exercised by

administrative authority,” if it would “change the law by giving to the

statute or Act an interpretation or construction of which its words are not

susceptible.” Nishnabotna Valley Rural Elec. Coop. v. Iowa Power & Light

Co., 161 N.W.2d 348, 352 (Iowa 1968). A rule is invalid if it is “at variance
with statutory provisions” or “nullif[ies] legislative intent.” Schmitt v. Iowa

Dep’t of Soc. Servs., 263 N.W.2d 739, 745 (Iowa 1978). The employer
 52

ratification requirement conflicts with Iowa Code section 20.17 and in that

way would give the statutory provisions therein a construction of which

their words are not susceptible. As such, the longevity of PERB’s rule is

of no moment. The rule should have never come into existence, and in

this case of first impression, we should erase it.

D. Relationship of Open-Meetings Law to the Question Before

Us. The majority opinion in this case holds that PERB’s rule is valid in

light of the open-meetings law. The opinion suggests that any action taken

contrary to the open-meetings law is void. That proposition is simply
incorrect.

First, section 20.17(3) states that “[n]egotiating sessions . . . shall be

exempt from the provisions of [the open-meetings law].” Iowa Code

§ 20.17(3). As discussed, during negotiating sessions, a public employer’s

representative may make a binding offer that requires no further action by

the employer. Therefore, the open-meetings law does not apply.

Further, Iowa Code section 20.17(4) provides that “[t]he terms of a

proposed collective bargaining agreement shall be made available to the

public by the public employer.” That requirement already achieves the

goal that would otherwise be accomplished by an open meeting:

“safeguard[ing] free and open democracy by ensuring the government does

not unnecessarily conduct its business in secret.” Hutchison v. Shull, 878

N.W.2d 221, 237 (Iowa 2016). Holding an open meeting to formally adopt

the terms does nothing further. Can anyone seriously believe that a

telephonic meeting which is called to order and adjourned within five

minutes, as the record shows the Regents did to formally adopt a collective

bargaining agreement in March 2017, meaningfully advances the goals of
the open-meetings law, especially when the terms of the collective

bargaining agreement are already made public?
 53

Additionally, the majority opinion in this case would allow a general

statute to override a more specific statute. When a general and specific

statute conflict, we do not allow the general statute to override the specific

one. Iowa Code § 4.7; Rilea, 919 N.W.2d at 388 n.6. Chapter 20

specifically refers to collective bargaining. Even more specifically, section

20.17(2) authorizes the public employer to designate a representative to

reach agreement, and section 20.17(4) does not impose any conditions on

a public employer before a collective bargaining agreement is finalized. By

contrast, the open-meetings law is a general law concerning openness at
public meetings. Therefore, the open-meetings law should not override the

specific provisions in chapter 20.

There is some authority from other jurisdictions that a designated

representative of a public employer may make an offer that binds the

employer irrespective of an open-meetings requirement. In South Benton

Education Association v. Monroe Union High School District, 732 P.2d 58,

59 (Or. Ct. App. 1987), an Oregon court considered whether a local school

board could authorize its designated representative to enter into a binding

contract notwithstanding a statute that required all meetings to be open

to the public. The Oregon court observed that under the statute related

to public employee collective bargaining, it was an unfair labor practice to

refuse to reduce to writing and sign an agreement previously reached by

collective bargaining. Id. at 62. The Oregon court also held that the more

specific statute related to public employee collective bargaining prevailed

over the more general statute related to meetings being open to the public.

Id.

Once again, this is not to say that the public employer cannot hold
an open meeting to adopt a collective bargaining agreement. Rather, it is

only to say that the Iowa Code does not so require.
 54

Even if the open-meetings law applied, its provisions do not support

summary judgment in this case. The open-meetings law provides that an

action which violates its substantive provisions is void only

if the suit for enforcement of this chapter is brought within six
months of the violation and the court finds under the facts of
the particular case that the public interest in the enforcement
of the policy of this chapter outweighs the public interest in
sustaining the validity of the action taken in the closed
session.

Iowa Code § 21.6(3)(c). Here, no open-meetings action was filed within six

months by an “aggrieved party,” and no court has engaged in the balancing
of policy interests to declare the Regents’ action void. It would take some

fortitude for a lawyer to argue on behalf of the Regents that they sought

relief under the open-meetings law for their own violation. As a result, the

open-meetings law provides no basis for relieving the Regents of potential

liability in this case.

In sum, a public employer can authorize a representative to make a

binding offer and PERB’s rule to the contrary is invalid. Therefore, the

next question becomes whether, in this case, there is a triable issue of fact

that a binding offer was made in this case.

IV. Whether There Is a Genuine Dispute that the Designated
Representative Made a Binding Offer.

As Chief Justice Cady explains, the question in this case becomes

whether the Regents intended to authorize their representative to make a

binding offer. I agree with his resolution. PERB’s invalid rule, it seems,

was a factor in how the Regents authorized the representative to negotiate

on their behalf. It appears that, with the rule in mind, the Regents did not

intend the representative to make a binding offer.
However, in the summary judgment proceeding, the district court

did not grant summary judgment based on the Regents’ intent concerning
 55

the scope of the representative’s authority. Instead, the district court

considered PERB’s rule valid and grounded its summary judgment

decision on that basis. The district court’s argument reflects the Regents’

summary judgment motion which also focused on the validity and

obligations of the rule rather than how the rule affected the Regents’

intentions regarding their representative’s authority. The argument not

presented to and considered by the district court involves “a different legal

theory with a different factual predicate than the issues actually litigated

in the summary judgment proceedings.” Winger Contracting Co. v. Cargill,
Inc., ___ N.W.2d ___, ___ (Iowa 2019). We cannot affirm a grant of summary

judgment on a basis that was not presented to and considered by the

district court. See Lamasters, 821 N.W.2d at 863–64; Meier, 641 N.W.2d

at 537. Therefore, I conclude that SEIU should survive summary

judgment on this point.

V. Whether the Regents Are Entitled to Summary Judgment
Based on Revocation of the January 10 Offer.

There is a legal question on whether a negotiator may revoke a

binding offer after the union indicates its acceptance but before the union

ratifies the proposed agreement. Under Iowa Code section 20.17(4), the

union must ratify a proposed agreement by majority vote of voting
members of the union.

On the one hand, the authority to negotiate suggests an ability to

revoke an offer before it is duly accepted. “Negotiations occur only where

there exists an opportunity for an offeror to modify or revise its proposal.”

Drexel Heritage Furnishings, 7 Cl. Ct. at 154. Further, under contract law,

a party may revoke an offer at any time prior to the creation of a contract
by acceptance. Younglove v. Hoberg, 195 Iowa 281, 285, 191 N.W. 985,
 56

987 (1923); 1 Richard A. Lord, Williston on Contracts § 5:8, at 960–61 (4th

ed. 2007) [hereinafter Williston on Contracts].

On the other hand, we do not strictly apply contract law in collective

bargaining, Sergeant Bluff-Luton Educ. Ass’n v. Sergeant Bluff-Luton Cmty.

Sch. Dist., 282 N.W.2d 144, 150 (Iowa 1979); see Pepsi-Cola Bottling Co. of

Mason City v. NLRB, 659 F.2d 87, 89 (8th Cir. 1981), and the duty to

negotiate in good faith may preclude revocation after the union indicates

its acceptance even if the members have not yet voted to ratify, see Iowa

Code §§ 20.9(1), .10(1). For instance, a PERB administrative law judge
concluded that a city failed to make good-faith efforts in reaching

agreement when, after the parties’ representatives reached a tentative

agreement but before the union could properly ratify the agreement, the

city attempted to impose a new offer and renounce the tentative

agreement. Commc’n Workers of Am., Local 7113 v. City of Council Bluffs,

88-HO-3723, at 12 (Aug. 24, 1988);14 cf. Ottumwa Cmty. Sch. Dist. v.

Ottumwa Educ. Ass’n, 82-HO-2140, at 8 (Jan. 29, 1982) (suggesting that

“the obvious need for some flexibility in the process” weighs against an

“inability to withdraw from tentative agreements for good cause” (emphasis

added)).15

This case, however, does not require us to resolve that legal

question. This is because, even if the Regents could have revoked the

January 10 offer after the union indicated its intention to accept, the State

14Available at https://www.iowaperb.org/Document?db=IOWA-STATE-PERBS
&query=(select+0+(byhits+(match+PERB_CASE_NUMBER+%6088-HO-3723))) [https://
perma.cc/WFU3-GC43].
15Available at https://www.iowaperb.org/Document?db=IOWA-STATE-PERBS
&query=(select+1+(byhits+(eq+ISSUANCE_DATE+%601982%2F01%2F29))) [https://
perma.cc/3VNS-285B].
 57

is not entitled to summary judgment because of the presence of factual

issues.

The record shows the following facts. On January 25, SEIU’s

negotiator wrote Galloway that “SEIU has agreed to the terms of the

[Regent’s] final offer sent via email on January 10, 2017” and noted SEIU’s

plans to “hold a ratification vote as quickly as possible.”

Galloway and the SEIU negotiator conversed by phone on

January 31. According to the State’s statement of undisputed facts,

Galloway “informed SEIU there was no tentative agreement for the parties
to ratify.” In his affidavit, Galloway says that he told his counterparty on

January 31 “that there was not an agreement to be ratified and that the

parties need to continue to bargain.” SEIU, by contrast, avers that

Galloway “orally stated that the Regents believed the parties had not

reached an agreement” but denies that Galloway stated there was “no

tentative agreement for the parties to ratify.” According to an affidavit from

SEIU’s negotiator, Galloway and Timothy Cook stated during the call that

“in their opinion an agreement had not been reached” and “the Regents,

through their representative, never withdrew their offer of January 10th.”

The parties do not seem to dispute that Galloway failed to expressly

revoke the Regents’ January 10 offer during the January 31 call. SEIU’s

negotiator made this point in his affidavit, stating, “During the course of

this phone call, the Regents, through their representative, never withdrew

their offer of January 10th.” The State’s statement of undisputed facts,

memorandum in support of summary judgment, and supporting affidavits

do not dispute the point made in the SEIU affidavit. Indeed, the State’s

memorandum in support of summary judgment does not even argue that
the offer was withdrawn.
 58

The next day, February 1, the SEIU representative sent Galloway an

email. That email stated,

In light of our conversation yesterday, I wanted to recap the
situation in which SEIU, as the legal representatives of
approximately 3,500 health care professionals, and the Board
of Regents find themselves.

On January 10, 2017 you sent SEIU, as the chief negotiator
for the Board of Regents, a final contract offer.

On January[] 25, 2017, SEIU accepted the offer with both a
voice message and an email message.

On January 31, during a telephone conversation, you and Tim
Cook informed me that the Board of Regents believed the
parties had not, in fact, reached . . . an agreement.

As I said yesterday, SEIU plans to hold its ratification vote in
the very near future. I will inform you of the results.

Please let me know if the Board of Regents’ position changes.

Following that email, on February 7, SEIU members ratified their

acceptance of the offer, and the SEIU negotiator wrote to Galloway to

inform him of the ratification.

The record, it seems to me, is undisputed that the January 10 offer

was never revoked by the Regents. The district court so concluded based

on the undisputed statement in the SEIU affidavit concerning express

revocation. The failure to identify a disputed fact and provide supporting
evidence can lead to a finding that an issue is undisputed. Diamond Prods.

Co. v. Skipton Painting & Insulating, Inc., 392 N.W.2d 137, 139 (Iowa 1986).

We should accept the district court’s finding, not ignore, evade, or obscure

it.

Even if SEIU cannot show that it is undisputed that the Regents did

not revoke the January 10 offer, I think a reasonable fact finder could
conclude that they did not revoke the offer. Professor Williston’s treatise
 59

explains the law on whether a communication is sufficient to act as a

revocation:

The question what communication will operate as a
revocation is a question of interpretation. In general, any
statement which clearly indicates or implies unwillingness on
the part of the offeror to contract according to the terms of the
offer is sufficient, though the offeror does not use the word
“revoke” or any similar operative language. . . . In the ideal
world, a revocation when properly made should be as direct
and explicit as an acceptance; if the offeror uses equivocal or
inexplicit language, it may not be sufficient to operate as a
revocation. Whether it has that effect will ordinarily be a
question of fact, depending upon what a reasonable person in
the position of the offeree would have thought.

1 Williston on Contracts § 5:8, at 965–67.

The only evidence put forward on revocation by the Regents is

Galloway’s affidavit, which avers that on January 31 he stated “that there

was not an agreement to be ratified and that the parties need to continue

to bargain.” That statement, viewed in the light most favorable to SEIU,

does not clearly indicate or imply unwillingness to contract according to

the terms of the offer, especially given the Regents’ apparent nonresponse

to SEIU’s letter the next day informing Galloway of SEIU’s intention to vote

on the offer. Id.; see also Pepsi-Cola, 659 F.2d at 90 (“[W]e conclude that

the July 12th proposal remained viable because the Company failed to

expressly withdraw its offer prior to acceptance and because the

circumstances do not indicate that the parties could have reasonably

considered the offer withdrawn.”). And even if the statement is sufficient

to shift the burden to SEIU, its representative specifically disputed the

point by affidavit. According to SEIU, Galloway only “orally stated that the

Regents believed the parties had not reached an agreement.” A reasonable

fact finder, it seems to me, could credit testimony from SEIU and
consequently believe that Galloway only indicated that there was no
 60

agreement because the union members had not yet ratified the agreement.

There is thus, at least, a genuine dispute of material fact. Consequently,

I would find that SEIU survives summary judgment on this point.

VI. Conclusion.

For the reasons expressed above, I would vacate the grant of

summary judgment and remand to the district court for further

proceedings.

Wiggins, J., joins this dissent.