IN THE COURT OF APPEALS OF IOWA
No. 15-1797
Filed February 22, 2017
WILLIAM J. BURKE,
Plaintiff-Appellant,
vs.
CITY COUNCIL OF CITY OF LANSING, IOWA,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Allamakee County, Richard D.
Stochl, Judge.
A former city council member appeals the district court’s decision denying
his petition for writ of certiorari in which he challenged his removal from the city
council. REVERSED AND REMANDED.
Erich D. Priebe and David J. Dutton of Dutton, Braun, Staack & Hellman,
P.L.C., Waterloo, for appellant.
Beth E. Hansen, Dustin T. Zeschke, and Kevin R. Rogers (until
withdrawal) of Swisher & Cohrt, P.L.C., Waterloo, for appellee.
Heard by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
2
VAITHESWARAN, Judge.
Members of the Lansing City Council voted to remove city council member
William Burke from office. Burke challenged the action in district court.
Following an evidentiary hearing, the court found substantial evidence to support
the decision. On appeal, Burke raises several issues, one of which we find
dispositive: whether the removal proceeding violated the United States and Iowa
Constitutions’ guarantees of procedural due process.
I. Background Facts and Proceedings
The case for Burke’s removal arose from claimed violations of our open
meetings law. See Iowa Code ch. 21 (2015). The law “seeks to ensure, through
a requirement of open meetings of governmental bodies, that the basis and
rationale of governmental decisions, as well as those decisions themselves, are
easily accessible to the people.” Iowa Code § 21.1. To that end, meetings of
governmental bodies are to be “preceded by public notice . . . and shall be held
in open session unless closed sessions are expressly permitted by law.” Id.
§ 21.3.
The City of Lansing issued an agenda for a city council meeting stating a
closed session would be held “[t]o discuss strategy in matters that are presently
in litigation or where litigation is imminent where its disclosure would be likely to
prejudice or disadvantage the position of the governmental body in that litigation
in compliance with chapter 21.5 of State statutes.” After the agenda was issued,
the city clerk requested an opinion from the Lansing city attorney as to whether
the two topics she understood to be up for discussion in the closed session
qualified for closed session under the open meetings law. The city attorney
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issued a memo opining that the topics did not qualify for closed session and city
council members could be subject to fines and costs for violation of the open
meetings law if a court were to determine they lacked a basis for going into
closed session.
The city clerk forwarded the memo to the city council members, including
Burke. Burke notified the clerk that he disagreed with “the reasons . . . reported
to the city attorney . . . for closed session.” He prepared a responsive memo
explaining what he perceived to be the real purpose of the closed session.
Burke and city council members Bechtel and Volker attended the
scheduled city council meeting. The council went into closed session on a two-
to-one vote, with Volker casting the no vote. No action was taken in the closed
session.
Later, the city council held a special meeting on an unrelated matter.
Twenty-four-hour notice of this meeting was not given.
Tensions between the city council and city residents culminated in an
investigation by the Allamakee County Attorney into the council’s actions. The
county attorney filed a petition alleging the two meetings violated Iowa’s open
meetings law.
The city retained an attorney to represent the city council and its
members.1 The attorney concluded the county attorney had “made some
legitimate allegations.” She prognosticated that
each council member named in the lawsuit who participated in a
violation of the open meetings law will be fined by the court
between $100 to $500 for the violation(s), as well as be held
1
Burke subsequently obtained his own attorney.
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responsible for paying all costs and reasonable attorney fees to the
County Attorney for having to bring the lawsuit.[2]
The attorney set forth a potential settlement strategy she had discussed with the
county attorney that would require Burke’s resignation in exchange for dismissal
of the lawsuit at the city’s cost.
The county attorney and retained attorney addressed the city council and
members of the public at a council meeting that Burke did not attend. The
retained attorney publicly stated she filed an answer to the county attorney’s
petition denying the allegations. The attending city council members then went
into closed session to discuss litigation strategy.
There followed a letter from the mayor petitioning the city council to
remove Burke from office for “willful misconduct and maladministration in office in
his handling of several matters relating to violation of the Iowa Open Meetings
laws which resulted in legal action against members of the City Council and the
City in District Court.” Three council members voted “to accept acknowledgment
of” a removal petition. After a special council meeting, members Bechtel,
Conway, Kolsrud, and Volker voted to remove Burke from office. Burke
abstained.
Burke sought certiorari review in the district court. In an amended petition,
he alleged in pertinent part that (1) the attorney retained to defend the council
members in the open meetings lawsuit filed by the county attorney notified them
of the pecuniary consequences if the court were to find violations of the open
2
Although there was significant discussion in the district court about whether the advice
was privileged, the mayor read the attorney’s e-mail into the public record of the removal
proceeding.
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meetings law, (2) the mayor’s request for his removal was filed soon after, (3) “no
sworn witnesses” testified at the hearing on the removal request, (4) the mayor
“who lacked direct knowledge of the charges . . . presented argument in support
of the” petition, (5) the city council, “acting in a judicial capacity, then voted 4-0 to
approve a motion to remove [him] as a member of the Lansing City Council,” and
(6) four days later, the county attorney dismissed the open meetings lawsuit.
Burke further alleged:
Councilpersons Jeffrey Bechtel, Rebecca Conway, Ross Kolsrud,
and Deborah Volker had a conflict of interest in voting on the
removal because they were individually-named defendants in the
County Attorney’s Open Meetings lawsuit. At the time they
conducted the removal hearing and voted for removal, each held an
expectation that [his] removal . . . from office would procure the
dismissal of the Open Meetings lawsuit, thereby protecting each
such council member from the possibility that he or she would be
held individually liable for open meeting damages.
He also alleged:
[His] removal . . . from office deprived him of the property interest of
his city council compensation and deprived him of his liberty
interest in his reputation. The manner in which [his] removal . . .
was accomplished lacked fundamental fairness, including deficient
notice of the charges made against him, deficient proof of his
alleged wrong-doing, the manner in which the removal hearing was
conducted, and the conflict of interest held by the quasi-judicial
panel of city council members sitting in judgment . . . . [His]
removal . . . therefore resulted in an unlawful deprivation of [his]
liberty or property without due process of law in violation of the
Fourteenth Amendment of the U.S. Constitution and Article I,
Section 9 of the Iowa Constitution.
The district court held an evidentiary hearing and considered deposition
testimony and other evidence adduced during the district court proceeding. The
court denied Burke’s petition. Burke moved for expanded findings and
conclusions, which the court also denied.
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On appeal, Burke raises a number of issues. We begin and end with his
contention that the city council’s removal proceeding violated procedural due
process under the Fourteenth Amendment of the United States Constitution and
article I, section 9 of the Iowa Constitution.
II. Error Preservation
As a preliminary matter, the city council contends Burke failed to preserve
error on his due process claims because he did not raise them “at the lower
tribunal level (city council).” The council concedes the issue was raised in the
district court certiorari proceeding and was decided by the district court, but
argues the district court proceeding was in the nature of an appellate action, with
the record limited to the record created before the council. See, e.g., Anderson
v. W. Hodgeman & Sons, Inc., 524 N.W.2d 418, 420 (Iowa 1994) (“Historically,
we have distinguished cases involving a district court’s appellate jurisdiction from
those invoking its original jurisdiction.”); see also, e.g., Walthart v. Bd. of Dirs. of
Edgewood-Colesburg Cmty. Sch. Dist., 694 N.W.2d 740, 743 (Iowa 2005) (“A
district court on judicial review of the adjudicator’s ruling is also limited as to the
evidence it may consider.”); State, Dep’t of Pub. Safety v. Woodhall, 376 N.W.2d
897, 898 (Iowa 1985) (“The court reviewing agency action exercises appellate
jurisdiction only and is without original authority to declare the rights of parties or
the applicability of any statute or rule.”). At the same time, the city council asks
us to review portions of the record created during the district court proceeding in
deciding whether the council’s removal decision was appropriate.
The council cannot have it both ways. If the council wishes to hold Burke
to the record created before the council, it too must be bound by that record. We
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proceed to decide the scope of the record before us because our resolution of
that issue will also resolve the error preservation question.
Iowa Code chapter 66 governs the removal of appointed or elected
officers. See Iowa Code § 66.1A. The chapter sets forth removal procedures
and provides that “any city officer elected by the people may be removed from
office, after hearing on written charges filed with the council of such city for any
cause which would be ground for an equitable action for removal in the district
court.” Id. § 66.29. The chapter states, “Proceedings before the council shall not
be a bar to proceedings in the district court as in this chapter provided.” Id.
§ 66.30. Proceedings in the district court are to be “summary” and “triable as an
equitable action.” Id. § 66.18; State v. Callaway, 268 N.W.2d 841, 842 (Iowa
1978); State v. Bartz, 224 N.W.2d 632, 634 (Iowa 1974).
Read together, sections 66.30 and 66.18 authorize two sets of
proceedings—one before the city council and another before the district court.
Both are original proceedings. A district court reviewing a city council’s removal
decision may consider evidence submitted to the city council as well as evidence
submitted in the judicial proceeding.
As noted, Burke raised his due process challenge to the council’s actions
in the district court proceeding and obtained a district court ruling on that
challenge. Because the record is not limited to matters raised before the council,
we conclude he preserved error. See Cooksey v. Cargill Meat Sols. Corp., 831
N.W.2d 94, 99 (Iowa 2013) (“Because the issue was presented to and decided
by the district court, we held the issue was preserved . . . .”). We proceed to
address the merits of Burke’s due process challenge, considering the record
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made before the city council, as well as the record made in the district court. Our
review of this constitutional issue requires us to make our own evaluation of the
facts from the totality of the circumstances. See Hancock v. City Council, 392
N.W.2d 472, 473 (Iowa 1986).
III. Procedural Due Process
The Iowa Supreme Court recently summarized due process as follows:
The Fifth Amendment to the United States Constitution states that
no person shall “be deprived of life, liberty, or property, without due
process of law,” and the Fourteenth Amendment also states that no
state shall “deprive any person of life, liberty, or property, without
due process of law.” Article I, section 9 of the Iowa Constitution
states that “no person shall be deprived of life, liberty, or property,
without due process of law.” “Due process requires fundamental
fairness in a judicial proceeding,” so a trial that is fundamentally
unfair violates the guarantees of due process in the United States
and Iowa Constitutions.
More v. State, 880 N.W.2d 487, 499 (Iowa 2016).
Burke argues “the removal proceeding before the city council was
fundamentally unfair because “each member of City Council who voted on [his]
removal had a conflict of interest—a pecuniary interest—in deciding [his] fate”
and the “City Council itself generated the factual record necessary to sustain its
decision, which perpetuates its conflict of interest.” The city council responds by
parsing the council members’ votes at the two meetings that were the subject of
the open meetings lawsuit and by arguing certain votes were irrelevant. This
argument misses the mark.
Due process requires a “fair trial in a fair tribunal.” Botsko v. Davenport
Civil Rights Comm’n, 774 N.W.2d 841, 848 (Iowa 2009) (citation omitted). Burke
received neither, because the four city council members who voted to remove
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him understood they would have no financial exposure for possible violations of
the open meetings law if they removed Burke. The mayor’s testimony in the
district court is instructive. He was asked whether at the time of the hearing
there was “an offer that had been made to the city council members that if Burke
was removed from office, the county attorney’s open meetings litigation would be
dismissed.” The mayor responded, “That came to the entire council in the form
of an email from [retained counsel] prior to the time of the [removal] hearing,
yes.” Notably, the mayor read the email, including the settlement offer, into the
public record of the removal proceeding and advised the council members that
the city’s insurance policy would “not cover the cost of any judgment entered by
or against each of [them]” and “[a]ny judgment that is entered will be your
personal responsibility.”
Similarly, the city clerk was asked whether she made “a comment during
the removal hearing reminding the city council that the county attorney had an
offer on the table that if Burke was removed from office, that the open meetings
litigation would be dismissed.” She responded, “Yes.”
We have considered the city council’s reliance on the four council
members’ statements that “the pending suit had no bearing on their decision” to
remove Burke. This self-serving testimony is immaterial because Burke was not
required to make a showing of actual prejudice, given “the risk of injecting bias in
the adjudicatory process.” See id. at 853.
We conclude the council members’ pecuniary interest in removing Burke
rendered the proceeding fundamentally unfair and amounted to a violation of
Burke’s procedural due process rights. See Keith v. Cmty. Sch. Dist., 262
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N.W.2d 249, 253, 260 (Iowa 1978) (“[N]o man is permitted to try cases where he
has an interest in the outcome.” (citing In re Murchison, 349 U.S. 133, 135
(1955)).
If the council members’ financial interest in removing Burke were not
sufficient to taint the fairness of the removal proceeding, their decision to
combine “advocacy and adjudicative functions” was. See Botsko, 774 N.W.2d at
853. The evidence necessary to establish “willful misconduct and
maladministration in office” was in the hands of the city council members. Id. As
in Keith, “it was necessary for the [council members] to call upon their own
personal knowledge and impression . . . because there were no other witnesses.”
262 N.W.2d at 260. The fact that their deposition testimony was introduced into
the district court record underscores the improper integration of prosecutorial and
adjudicative functions. In other words, the council essentially served as
prosecutor by apparently authorizing initiation of the removal process. The
council members also supported Burke’s removal in district court by presenting
their own witness testimony, through depositions, to document their personal
knowledge of the grounds for removal. In sum, they were involved in
prosecuting, investigating, and deciding the removal case. This intermingling of
functions amounted to another due process violation.
To add salt to Burke’s wound, the council members provided no statement
of reasons for their removal decision. The absence of fact findings amounted to
a third due process violation. See Hancock, 392 N.W.2d at 478 (“[T]he decision
of the city following the hearing should have included findings of fact, in writing,
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which would inform the parties of the basis of the decision and aid in a district
court’s certiorari review of its action.”).
Because the removal proceeding violated Burke’s right to procedural due
process, we reverse and remand for entry of an order sustaining the writ of
certiorari. See id. at 480.3
IV. Expenses and Attorney Fees
Burke contends Iowa Code chapter 66 authorizes him to recover his
expenses and attorney fees. Section 66.23 states, “If the petition for removal is
dismissed, the defendant shall be reimbursed for the reasonable and necessary
expenses incurred by the defendant in making a defense, including reasonable
attorney’s fees, as determined by the court.” Burke seeks attorney fees “[i]f the
court grants [his] petition for writ of certiorari and declares that his removal was
illegal.” The city council counters that the city’s ordinance does not authorize
fees.
The ordinance does not speak to the question of expenses and fees, while
section 66.23 authorizes the payment of expenses and fees on the dismissal of
the removal petition. Section 66.23 is controlling. We reverse and remand for a
determination of the expenses and fees payable to Burke’s attorney.
REVERSED AND REMANDED.
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The city council is not without a remedy. Chapter 66 provides several methods for
removing public officials. See Iowa Code § 66.3; Botsko, 774 N.W.2d at 854 (noting
commission could explore the possibility of pursuing the case “before an untainted
body”).
William J. Burke v. City Council of City of Lansing, Iowa
Combined Opinion