IN THE COURT OF APPEALS OF IOWA
No. 21-0981
Filed August 31, 2022
TOMMY MARION COPELAND,
Plaintiff-Appellant,
vs.
STATE OF IOWA and IOWA AIR NATIONAL GUARD,
Defendant-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.
A veteran appeals the denial of his petition for writ of certiorari following his
termination from the State of Iowa and Iowa Air National Guard. AFFIRMED.
Charles Gribble, Christopher Stewart, and Haley Bryan (until withdrawal) of
Gribble Boles Stewart & Witosky Law, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Alan W. Nagel and Jeffery
Peterzalek, Assistant Attorneys General, for appellees.
Heard by Vaitheswaran, P.J., and Tabor and Badding, JJ.
2
BADDING, Judge.
Army veteran Tommy Copeland appeals the denial of his petition for writ of
certiorari following his termination as an air base security officer for the Iowa Air
National Guard. Copeland claims that, as a veteran, he was entitled to a pre-
termination hearing under the Iowa Veterans Preference Act in Iowa Code
chapter 35C (2020). The district court rejected this claim, finding that Copeland
was exempt from the protections of chapter 35C because he was in a “confidential
relation to the appointing officer.” See Iowa Code § 35C.8. We agree.
I. Background Facts and Proceedings
Copeland worked for the State of Iowa and Iowa Air National Guard as an
air base security officer. In this role, Copeland was granted “police powers” on the
base and was armed at all times. He reported directly to a security forces
manager. The security forces manager reported to a deputy adjutant general, who
in turn reported to the adjutant general. Id. § 29A.16. The adjutant general is the
director of the department of public defense in Iowa and charged with performing
“all functions, responsibilities, powers, and duties concerning the military forces of
the state of Iowa.” Id. § 29.1.
Despite his status as a veteran, Copeland’s employment was terminated
without a hearing in August 2020 when he failed a physical agility test for the fourth
time. Copeland filed a petition for writ of certiorari. He argued that his termination
was illegal because he was not “given a hearing alleging incompetence or
misconduct or an opportunity to respond to any allegations” as required by Iowa
Code section 35C.6. In resistance to Copeland’s petition, the State and Air
National Guard did not dispute Copeland’s status as a veteran. Instead, they
3
argued the Veterans Preference Act did not apply to Copeland because he held a
“confidential relation to the appointing officer” under the exception in section 35C.8.
The district court agreed and denied the petition, finding that Copeland held “a
confidential relationship with the Security Forces Manager, the [Deputy] Adjutant
General, and the Adjutant General,” rendering him exempt from the protection of
section 35C.6. Copeland appeals.
II. Standard of Review
“Our review of the denial of the petition for writ of certiorari is at law.” Frank
Hardie Advert. Inc. v. City of Dubuque Zoning Bd. of Adjustment, 501 N.W.2d 521,
523 (Iowa 1993). Relief is available through certiorari when a lower body
exercising judicial functions exceeds its jurisdiction or acts illegally. Id. Our review
“is limited to determining whether the district court properly applied the law to the
controversy before it.” Id.
The determination of whether a confidential relation exists under
section 35C.8 “is not a simple question of fact. A confidential relationship is a legal
status. It is a conclusion of law, rather than a finding of fact. A matter for judicial
construction and determination.” Klatt v. Akers, 5 N.W.2d 605, 611 (Iowa 1942).
So our review on this issue is also “limited to determining whether the district court
properly applied the law to the controversy before it.” Machamer v. Iowa Dep’t of
Admin. Servs., No. 15-1861, 2016 WL 7395731, at *1 (Iowa Ct. App. Dec. 21,
2016) (citation omitted).
III. Analysis
“Since the Civil War, Iowa has recognized the enormous contributions made
to our lives by veterans of our armed forces by giving preference to veterans
4
seeking employment with the state, as well as employment with the cities,
counties, and school corporations within the state.” Stammeyer v. Div. of Narcotics
Enf’t of the Iowa Dep’t of Pub. Safety, 721 N.W.2d 541, 542 (Iowa 2006). To that
end, the Veterans Preference Act “provides veterans with certain hiring
preferences and workplace protections.” Williams v. Bullock, 960 N.W.2d 473, 477
(Iowa 2021); accord Iowa Code § 35C.1(1).
Among those protections is section 35C.6:
No person holding a public position by appointment or
employment, and belonging to any of the classes of persons to whom
a preference is herein granted, shall be removed from such position
or employment except for incompetency or misconduct shown after
a hearing, upon due notice, upon stated charges, and with the right
of such employee or appointee to a review by a writ of certiorari or at
such person’s election, to judicial review in accordance with the
terms of the Iowa administrative procedure Act, chapter 17A, if that
is otherwise applicable to their case.
This provision ensures “veterans permanency of employment and protect[s] them
from removal except for their own incompetency or misconduct.” Kern v. Saydel
Cmty. Sch. Dist., 637 N.W.2d 157, 161 (Iowa 2001).
But the act’s protection against removal is not without exception. Iowa Code
section 35C.8 provides that “[n]othing in this chapter shall be construed to apply to
the position of private secretary or deputy of any official or department, or to any
person holding a strictly confidential relation to the appointing officer.” (Emphasis
added.) This exception has been a part of the statute since its enactment, see
1904 Iowa Acts 9, § 2, and an “always troublesome” one at that. Klatt, 5 N.W.2d
at 606. As a result, we have a good body of case law from our supreme court with
instructions on how to interpret and consider confidential relations.
5
The term “is a very broad one and is not at all confined to any specific
association of the parties, but applies generally to all persons who are associated
by any relation of trust and confidence.” Allen v. Wegman, 254 N.W. 74, 79–80
(Iowa 1934) (quoting Scott v. Brown, 157 N.E. 64, 68 (Ind. App. 1927)). “Where
duties are not merely clerical and require skill, judgment, trust and confidence, the
courts are inclined to regard the appointee to whom such duties are delegated as
holding a strictly confidential relation to the appointing officer or board.” Brown v.
State Printing Bd., 296 N.W. 719, 720 (Iowa 1941). We accordingly
look at the duties of the appointing officer to determine whether the
officer was compelled to entrust the performance of the duties to
others because it would be impossible to discharge those assigned
duties personally. We also look to see if the person appointed was
“necessarily given considerable latitude and required to exercise his
discretion and good judgment in dealing with many of the duties
delegated to him.” If the appointing officer is required to perform a
duty involving skill or integrity and could incur liability to himself or to
the entity that employs him if the duty is not properly executed and
the officer entrusts “the discharge of this duty to another, their
relations become confidential.”
Machamer, 2016 WL 7395731, at *2 (internal citations omitted).
Copeland focuses on the delegation part of the analysis, arguing that
because he reported directly to the security forces manager, “he did not have a
confidential relationship with the Adjutant General or the [Deputy] Adjutant
General,” who are the relevant appointing officers in this case. See Iowa Code
§ 8A.401(1). In making this argument, Copeland relies on the supreme court’s
decision in Ervin v. Triplett, 18 N.W.2d 599, 601–02 (Iowa 1945), overruled on
other grounds by Andreano v. Gunter, 110 N.W.2d 649 (Iowa 1961), which
considered whether a detective on a police force held a confidential relationship
6
with the commissioner of public safety. The Ervin court found no such relationship
existed, reasoning:
The work of a detective may be of a confidential nature and his
reports may be confidential to his immediate superior. However, the
record does not in any way disclose that a person holding the
position of detective such as was held by the appellee in this case is
one of “strictly confidential relation to the appointing officer.”
Id. Copeland argues that like the detective in Ervin, he “may have a confidential
relationship with his direct supervisor, the Security Forces Manager,” but he “does
not have one with the appointing authority, the Adjutant General.”
The holding of Ervin does give us some pause. But in cases since then,
our supreme court has continued to apply the broad interpretation of “confidential
relation” set forth in Allen—one that does not require “any specific association of
the parties” but applies “generally to all persons who are associated by any relation
of trust and confidence.”1 254 N.W. at 79–80 (emphasis added); see, e.g.,
Andreano, 110 N.W.2d at 654 (listing cases finding a confidential relation between
employees and their appointing officers, including a head bookkeeper in the state
treasurer’s office, a senior examiner in the state auditor’s office, and a jailer in a
sheriff’s office).
Indeed, in Klatt, 5 N.W.2d at 611, the supreme court rejected a very similar
argument when a senior examiner in the office of the state auditor argued the
statute required a “personal confidential relation between the employee and the
1 We decline Copeland’s invitation to reformulate the broad interpretation of
“confidential relation” set forth in Allen in favor of a definition that “requires a direct
relationship between the two parties which creates fiduciary duties and
obligations.” We cannot overturn precedent of our supreme court. See State v.
Hastings, 466 N.W.2d 697, 700 (Iowa Ct. App. 1990).
7
appointing officer.” Even though the state examiner in Klatt “never conferred with
the Auditor concerning the performance of his duties, never worked in the Auditor’s
office and never had access to any funds therein,” and was “not under the
immediate supervision of the State Auditor,” the court found a confidential relation
existed. Id. at 611–12. In doing so, the court emphasized the nature of the
examiner’s work, the “secrecy, integrity, trust, confidence, skill, [and] competence”
required in the performance of the examiner’s duties, and the delegation of those
duties by the auditor, who ultimately remained “responsible for their proper
performance.” Id. at 612.
Similarly, in Hannam v. Iowa State Commerce Commission, 292 N.W. 820,
820 (Iowa 1940), the court found an inspector in the motor transportation division
held a confidential relationship with the Iowa State Commerce Commission. The
court reached this conclusion even though the inspector’s immediate supervisor
was a chief inspector, who reported to a deputy superintendent, who in turn
reported to a superintendent of the motor vehicle transportation division, a
subdivision of the Iowa State Commerce Commission. Id. Like in Klatt, the court
in Hannam did not focus on the direct relationship between the employee and the
appointing authority but on the duties delegated to the employee. Id. at 820–21.
Turning to the delegation question, Copeland works backward, looking first
at his duties to determine whether they could have been delegated to him by the
appointing officer. He agrees with the district court that his position required him
to be
armed at all times, trusted to have access to restricted areas on a
military base, and trusted and required to maintain a valid secret
security clearance, military-level weapons qualifications, a favorable
8
background check, the ability to pass a strenuous Physical Agility
Test, and a medical evaluation clearing him as fit to work.
Copeland concedes that all of these duties required him to exercise “discretion and
good judgment,” along with “skill, judgment, trust, and confidence.” Machamer,
2016 WL 7395731, at *2. But he contends “[n]one of these are duties of the”
adjutant general or assistant adjutant general, so they could not have been
delegated to him by those authorities. We disagree, finding from the record a clear
line of delegated duties from the adjutant general down the chain of command to
Copeland.
The adjutant general is tasked with keeping “charge of the state military
reservations, and all other property of the state kept or used for military purposes.”
Iowa Code § 29A.12(1). To aid the adjutant general in that duty, which would be
impossible for one person to perform, see id., section 29A.16(1) provides for the
appointment of a “deputy adjutant general for the air national guard upon the
recommendation of the adjutant general.” And section 29A.16(3) allows the
adjutant general to “appoint a full-time staff within prescribed personnel
authorization.” See Bowman v. Overturff, 294 N.W. 568, 570 (Iowa 1940)
(considering whether “[b]y reason of his numerous duties,” the appointing officer
“was compelled to delegate to others”). A position description questionnaire
describing the work performed by an air base security officer specifically states the
role requires the exercise of “police powers granted by the State Adjutant General
. . . by carrying firearms, issuing citations, ordering unauthorized persons off the
premises, or by detaining them for questioning or for civil authorities.” (Emphasis
added.) Any errors in the exercise of these police powers could, as the district
9
court found, “cause bodily harm or security breaches” that could then expose the
appointing officers to liability. See Machamer, 2016 WL 7395731, at *2.
Copeland agrees with this chain of command, acknowledging that the
adjutant general “is in charge of all aspects of the Iowa Air National Guard and
delegates those tasks to other individuals, such as a Security Forces Manager,
who then delegates even further down the chain to individuals, like Copeland, who
are Security Guards.” But he raises a slippery-slope-type argument, contending
that if he has a confidential relation with the adjutant general, it would “mean every
employee of the Iowa Air National Guard has a confidential relationship because
their supervisors have the relationship.”
We disagree, first because delegation of duties is just one part of the
analysis. In order to establish a “confidential relation to the appointing officer,” the
duties themselves must, as stated earlier, not be “merely clerical” and instead
require “skill, judgment, trust, and confidence,” along with the “exercise of
discretion and good judgment.” Id. As a result, not all positions in the Iowa Air
National Guard would fall within the section 35C.8 exception as Copeland
contends, even if the duties were delegated by the appointing officer.
Second, to echo another point we made earlier, our supreme court has long
applied a broad interpretation of the term “confidential relation” despite dissents
raising the same concern as Copeland. See, e.g., Klatt, 5 N.W.2d at 613 (Mitchell,
J., dissenting) (“If in this position there is a confidential relationship, it would
practically wipe out the Soldiers’ Preference Act for all positions with the possible
exception of some minor jobs, like janitors or street cleaning jobs . . . .”). Because
of that broad interpretation, and our obligation to follow controlling supreme court
10
precedent, we rejected a similar argument in Machamer, 2016 WL 7395731, at *3.
We do so again here.
IV. Conclusion
On our review of the record, we agree with the district court that Copeland’s
position as an air base security officer placed him in a confidential relation with the
appointing officer. Copeland was delegated duties that are statutorily assigned to
the Adjutant General and “require skill, judgment, trust and confidence” from his
superiors. Brown, 296 N.W.2d at 720. That confidential relation bars the
application of the statutory protection provided in section 35C.6. Iowa Code
§ 35C.8. Accordingly, we affirm the district court’s denial of Copeland’s petition for
writ of certiorari.
AFFIRMED.
Vaitheswaran, P.J., concurs; Tabor, J., dissents.
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TABOR, Judge (dissenting).
I respectfully dissent. I do not find in the record where Tommy Copeland
did “strictly confidential” work for the adjutant general to fall within the exception to
the veterans-preference statute at Iowa Code section 35C.8 (2020). Copeland’s
job as an air base security officer required the trust of his immediate supervisor—
like the patrolman in Ervin v. Triplett, 18 N.W.2d 599, 601 (Iowa 1945), overruled
on other grounds by Andreano v. Gunter, 110 N.W.2d 649 (Iowa 1961). But
Copeland did not “substitute” for the appointing officer—unlike the jailer deputized
by the sheriff in Bowman v. Overturff, 294 N.W. 568, 570 (Iowa 1940). Because
Copeland is entitled to the protections of chapter 35C, I would reverse and remand
for the state department of public defense to provide a hearing.
The majority is correct that courts have struggled with interpreting the
phrase “a strictly confidential relation to an appointing officer” in what is now
section 35C.8. See Klatt v. Akers, 5 N.W.2d 605, 607 (Iowa 1942). But I believe
the majority takes an incorrect interpretive path today. Because that phrase,
enacted in 1904, is notoriously ambiguous, the tools of statutory construction can
help determine its meaning. See State v. Ross, 941 N.W.2d 341, 346 (Iowa 2020);
1904 Iowa Acts ch. 9, § 2.
First, our supreme court has liberally construed the veterans-preference
statute because of the benefit it provides for people who have made the patriotic
sacrifice to serve in the military. Tusant v. City of Des Moines, 300 N.W. 690, 694
(Iowa 1940). An early case declared the “central purpose” of the veteran-
preference statute was to “insure to the veteran permanency of employment, and
make him so far as possible independent of the changing whims and interests of
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the officer or board under which he serves.” Kitterman v. Bd. of Supervisors of
Wapello Cnty., 123 N.W. 740, 742 (Iowa 1909). “To hold otherwise,” the court
reasoned, would allow the appointing officer “to convert the position into a political
asset of the successful party at each recurring election.” Id.
Second, we must not let the exception in section 35C.8 swallow the general
protections of the veterans-preference statute. “[W]here a general provision in a
statute has certain limited exceptions, all doubts should be resolved in favor of the
general provision rather than exceptions.” 2A Norman J. Singer, Statutes and
Statutory Construction, § 47.11 at 246–47 (6th ed. 2000). In fact, our case law has
recognized that “the legislature did not intend for section [35C.8] to be a tool by
which the rest of chapter [35C] could be loosely circumvented.” Richards v. Bd. of
Control of State Insts., 170 N.W.2d 243, 245 (Iowa 1969).
With those two guides, let’s examine the language of the exception. It
exempts three categories of employees from receiving the veteran preference:
(1) and (2) are “the position of private secretary or deputy of any official or
department” and (3) is “any person holding a strictly confidential relation to the
appointing officer.” Iowa Code § 35C.8.
Because “a strictly confidential relation” is not defined in the code, we may
refer to court decisions, similar statutes, dictionary definitions, and common usage.
See Jack v. P & A Farms, Ltd., 822 N.W.2d 511, 516 (Iowa 2012). Court decisions
first. Early on, our supreme court in Brown v. State Printing Bd., 296 N.W. 719,
720 (Iowa 1941), borrowed a definition from a leading New York case:
What is a “confidential relation” to the appointing officer? A
complete definition may be difficult. We shall only attempt one in
general terms. The meaning of “confidential” has two elements—
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that of secrecy and that of trust and confidence. Confidential
relations, in law, as defined by the Century Dictionary, is a relation of
parties in which one is bound to act for the benefit of the other, and
can take no advantage to himself from his acts relating to the interest
of the other. Such a relation arises whenever a continuous trust is
reposed by one person in the skill or integrity of another. The statute
which we have under consideration has reference to officials, and
the confidential relations mentioned undoubtedly have reference to
official acts, and include not only those that are secret, but those that
involve trust and confidence which are personal to the appointing
officer. If, therefore, the statute casts upon an officer a duty involving
skill or integrity, and a liability either personal or on the part of the
municipality which he represents, and he intrusts the discharge of
this duty to another, their relations become confidential.
People v. Palmer, 46 N.E. 328, 329 (N.Y. 1897).
Brown embellished on the Palmer definition: “Where duties are not merely
clerical and require skill, judgment, trust and confidence, the courts are inclined to
regard the appointee to whom such duties are delegated as holding a strictly
confidential relation to the appointing officer or board.”2 296 N.W. at 720. Citing
Brown, the majority reasons that Copeland was “delegated duties that are
statutorily assigned to the Adjutant General and ‘require skill, judgment, trust and
confidence’ from his superiors.”
In my view, we have stretched the Brown embellishment too far. Not all
employees who perform non-clerical duties that roughly fall within the job
description of a higher officer should be exempt from the veterans-preference
statute. For starters, finding that Copeland falls under the exception ignores the
word “strictly” in section 35C.8. As our supreme court acknowledged, “There can
2 Unlike this case, Brown was not a close call. The court held that the state
supervisor of printing, appointed by state printing board, was not entitled to
benefits. It summarized: “The statutes fairly imply a relation of strict confidence on
the part of the superintendent toward the board that appoints him and at whose
pleasure he serves.” Brown, 296 N.W. at 721.
14
be no question that the Legislature had a purpose in using the qualifying adverb,
and it should be given its accustomed meaning.” Klatt, 5 N.W.2d at 611. The
dictionary defines “strictly” as “closely, precisely, rigorously, stringently, positively.”
Websters Third New International Dictionary 2261 (1993). To that end, by
modifying “confidential relation” with the word “strictly” the legislature intended to
limit the exception to employees acting in close association with the superior who
delegated the position of confidence.
Overlooking that limitation, the majority relies on boilerplate characterizing
the exception as “very broad” and “not at all confined to any specific association of
the parties, but applies generally to all persons who are associated by any relation
of trust and confidence.” Allen v. Wegman, 254 N.W. 74, 79–80 (Iowa 1934)
(quoting Scott v. Brown, 157 N.E. 64, 68 (Ind. App. 1927)).3 Such reliance is shaky
because Scott was interpreting “confidential relation” in a contract case alleging
fraudulent inducement. Scott, 157 N.E. at 68. Plus, the Indiana court clarified that
“it arises when a continuous trust is reposed by one person in the skill or integrity
of another.” Id. Even if that contract law formulation informs our statutory
interpretation, nothing in this record shows that the adjutant general placed his
personal confidence in Copeland. In fact, our record does not show that the
adjutant general had ever met Copeland or had any personal or professional
3 The majority notes that we cannot overrule Allen. Agreed. And we need not do
so to grant Copeland relief. Allen rejected the need for a “specific association” in
dicta. The court held that because Allen ran the bookkeeping department of the
state treasurer’s office, his position “involved strictly confidential relations with the
head of the office.” Allen, 254 N.W. at 80. Allen’s close position of trust with the
appointing officer was a far cry from the line-level security post held by Copeland.
15
exchanges with him.4 It also does not show how many security officers or similarly
skilled employees worked for the department of public defense who would also be
excluded from the veterans-preference protection.
Then there’s context. Consistent with the associated-words canon of
construction, we should not read the third exception—a strictly confidential
relation—in isolation from the other two categories. See Ross, 941 N.W.2d at 348.
Rather, we must view it alongside the exceptions for private secretaries and
deputies. Put another way, “the meanings of particular words may be indicated or
controlled by associated words.” Id. (citation omitted). Thus, because private
secretaries and deputies are identifiable individuals in the immediate orbit of the
appointed official or department head, the third category also should be limited to
employees who have close and confidential ties to the appointing officer. Focusing
on any nebulous “relation” between the appointing officer and the employee
renders the words “strictly confidential” meaningless. See id. at 347.
Bottom line, the majority’s unreasonably expansive reading of the exception
undermines the beneficial purpose of the statute and threatens to deprive
deserving veterans of the procedural protections of chapter 35C.
4 The majority recites facts from Klatt, which held that a senior examiner had a
confidential relation with the state auditor, though the examiner did not confer
directly with the auditor “concerning the performance of his duties.” 5 N.W.2d
at 611. But that decision made clear that the examiners held trusted positions as
“closemouthed men, of ability, integrity and fidelity, since in their examinations and
investigations they acquire knowledge of matters affecting not only public officials
but also private individuals which is highly confidential, and should be disclosed to
no one except as their duties require disclosure to their superiors.” Id. And after
those investigations, the examiners reported the results of their investigations to
the state auditor. Again, a far cry from Copeland’s position as a security guard.
Tommy Marion Copeland v. State of Iowa and Iowa Air National Guard
Combined Opinion