Opinion
No. 5-644 / 04-1889
Filed November 9, 2005
Appeal from the Iowa District Court for Kossuth County, Michael S. Walsh, Judge.
T.J. Braunschweig appeals the district court's grant of summary judgment in favor of the defendants. AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
T.J. Braunschweig, Algona, pro se.
James A. Clarity, III of Clarity Law Office, Spirit Lake, for appellees.
Heard by Sackett, C.J., and Vogel and Eisenhauer, JJ.
T.J. Braunschweig appeals the district court's grant of summary judgment in favor of Todd Holmes, David Skilling, and the Kossuth County Board of Supervisors (Board) (the parties are collectively referred to as "defendants"). Braunschweig applied for the position of Kossuth County Attorney after Skilling announced his resignation. Braunschweig was an assistant county attorney in Kossuth County at the time. The Board ultimately appointed Holmes to the position; however, we ruled today in Braunschweig v. Board of Supervisors, No. 04-1506 (Iowa Ct.App. filed November 9, 2005) that the appointment of Holmes was legally ineffective due to the Board's failure to provide proper public notice of its intent to fill the vacancy by appointment. Through some manner of events Braunschweig's employment was terminated after Holmes took over the county attorney's position. Braunschweig filed an action, that we now take up on appeal, alleging (1) wrongful discharge; (2) violation of his civil rights, and (3) intentional interference with a business relationship. The district court granted summary judgment in favor of defendants. Braunschweig appeals. We affirm in part, reverse in part and remand.
I. BACKGROUND FACTS AND PROCEEDINGS.
The background facts for this case have been summarized in Braunschweig v. Board of Supervisors, No. 04-1506 (Iowa Ct.App. filed November 9, 2005) and will not be repeated here.
Braunschweig filed the action leading to this appeal in the district court on August 11, 2003 alleging: (1) wrongful termination because he was terminated by a person without legal authority to do so, the defendants violated the procedures found in Iowa Code section 331.903(2) (2001), the defendants violated Iowa's veteran's preference law found at Iowa Code section 35C.6, and he was discharged due to the exercise of his right to freedom of speech; (2) violation of his civil rights pursuant to 42 U.S.C. section 1983 (2001); and (3) intentional interference with a business relationship between Braunschweig and Kossuth County. The district court granted the defendants' motion for summary judgment and Braunschweig appeals.
II. SCOPE OF REVIEW.
We review summary judgment rulings for correction of errors of law. Iowa R. App. P. 6.4; Mason v. Vision Iowa Bd. , 700 N.W.2d 349, 353 (Iowa 2005). Where the record shows no genuine dispute of a material fact, summary judgment is appropriate. Id. In determining whether summary judgment is appropriate, we view the entire record in a light most favorable to the nonmoving party. Id. We also indulge in every legitimate inference that the evidence will bear in an effort to ascertain the existence of a fact question. Id. III. ANALYSIS. Issue Preclusion.
The district court relied on its ruling granting summary judgment in favor of the Board in a previous case in applying the doctrine of issue preclusion. The district court applied issue preclusion in finding (1) the Board substantially complied with the notice requirements in appointing a new county attorney, (2) Holmes properly established residency in Kossuth County prior to his appointment, (3) Skilling properly postponed his resignation date, and (4) the Board complied with Iowa's veteran's preference law in hiring Holmes.
Issue preclusion may be invoked where: (1) the issue in the present case is identical, (2) the issue was raised and litigated in a prior action, (3) the issue was material and relevant to the disposition of the prior case, and (4) the determination of the issue in the prior action was essential to the resulting judgment. Fischer v. City of Sioux City , 654 N.W.2d 544, 547 (Iowa 2002).
In Braunschweig v. Board of Supervisors, No. 04-1506 (Iowa Ct. App. filed November 9, 2005), we reversed the district court, holding that the Board failed to notify the public of its intent to appoint a county attorney in compliance with Iowa statutes. After reversing on that issue, we concluded that we did not need to reach the issues of whether Holmes properly established Kossuth County residency, whether the postponement of Skilling's resignation was proper, and whether the Board complied with the veteran's preference law. Therefore, we now conclude that the district court's application of issue preclusion as to these issues was improper.
Wrongful Discharge.
It is unclear from the record before us precisely how Braunschweig was discharged from his position as assistant county attorney. The district court made no specific finding as to this fact. Nonetheless, the parties agree that Braunschweig was indeed discharged.
Braunschweig argues his discharge was wrongful for several reasons. First, he argues that he was discharged by an individual who was not properly appointed to the county attorney position, and therefore did not have authority to discharge him. The district court resolved this claim by applying issue preclusion. This issue can no longer be decided by applying issue preclusion. We therefore reverse and remand this issue to the district court.
Braunschweig makes two statutory arguments as to why his discharge was wrongful. Braunschweig argues his discharge was wrongful because the procedures of Iowa Code section 331.903(2) were not followed. That provision provides for the manner in which the appointments of certain deputies, assistants, and clerks are to be carried out within counties:
When an appointment has been approved by the board, the principal officer making the appointment shall issue a written certificate of appointment which shall be filed and kept in the office of the auditor. A certificate of appointment may be revoked in writing by the principal officer making the appointment, which revocation shall also be filed and kept in the office of the auditor.
Iowa Code § 331.903(2) (emphasis added). We agree with the district court that the statutory provision with regard to revoking a certificate of appointment is directory, not mandatory. "In determining whether a statute is mandatory or directory, we look to the nature of the duty in light of the purpose the statute was designed to serve." Willett v. Cerro Gordo County Zoning Bd. of Adjustment , 490 N.W.2d 556, 559 (Iowa 1992). The intent of the provision at issue appears to be to confer the power to terminate a subordinate to the principal officer and to provide for a method to keep records. It is not intended to supply a terminated employee with a cause of action for wrongful discharge. Furthermore, the provision uses the word "may," which the legislature has indicated confers a power but does not create mandatory duty. See Iowa Code § 4.1(30)(c). We affirm the district court on this issue.
Braunschweig's second statutory argument that his discharge was wrongful is based upon Iowa's veteran's preference law. Iowa Code § 35C.6. There is no dispute that Braunschweig is a veteran and meets the definition and qualification for coverage of the veteran's preference statute. Iowa's veteran's preference law requires that qualifying public employees be granted the procedural right to a pre-discharge hearing and a finding of incompetence or misconduct before being terminated. Iowa Code § 35C.6. However, we conclude the position of assistant county attorney is excepted from the coverage of the veteran's preference law.
The statute provides an exception to coverage for certain appointees and employees. It provides, "Nothing 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." Iowa Code § 35C.8 (emphasis added). The term "strictly confidential relation" as used in Iowa Code section 35C.8 "has been held to be very broad and not confined to any specific association of the parties but to apply generally to all persons who are associated by any relation of trust and confidence." Bianco v. Mills , 248 Iowa 365, 368, 80 N.W.2d 753, 754 (1957). Furthermore,
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. This rule is well established.
Id. (citing Klatt v. Akers, 232 Iowa 1312, 5 N.W.2d 605 (1942) (internal quotation marks omitted)); see Hannam v. Iowa State Commerce Comm'n, 228 Iowa 586, 292 N.W. 820 (1940); Allen v. Wegman, 218 Iowa 801, 254 N.W. 74 (1934).
Additionally, we observe that in Andreano v. Gunter , 252 Iowa 1330, 1343-44, 110 N.W.2d 649, 655-56 (1961), the supreme court held that an assistant chief of police was in strictly confidential relation to the chief of police, within the meaning of the veteran's preference law. We believe that the assistant chief of police to chief of police relationship is similar to that of assistant county attorney to county attorney.
We hold that Braunschweig, as assistant county attorney, did have a strictly confidential relation to the appointing officer, the county attorney. Therefore, Braunschweig was not entitled to the protections of the veteran's preference law before his termination. We affirm the district court on this issue.
The last of Braunschweig's charges of wrongful discharge appears to be in the form of a common-law tort claim of wrongful discharge. As a starting point for addressing this claim, we agree with district court and conclude that an assistant county attorney is an employee at-will. The Iowa Attorney General has also adopted this position. 1990 Iowa Op. Att'y Gen. 97. While we are not bound by an opinion of the attorney general, we do give it respectful consideration. Bradley v. Iowa Dep't of Personnel , 596 N.W.2d 526, 530 (Iowa 1999); City of Clinton v. Sheridan, 530 N.W.2d 690, 695 (Iowa 1995); Woodbury County v. City of Sioux City, 475 N.W.2d 203, 207 (Iowa 1991). In concluding that an assistant county attorney is an at-will employee, we further rely on our supreme court's statement that "an assistant, clerk, or deputy without civil service status, . . . would clearly be an employee at-will, subject to discharge at any time for any reason." Norton v. Adair County , 441 N.W.2d 347, 361 (Iowa 1989)
Having resolved that Braunschweig's employment was at-will, we note that it is the clear law of the State of Iowa that an employer may discharge an at-will employee at any time and for any reason or for no reason at all. Lloyd v. Drake Univ. , 686 N.W.2d 225, 228 (Iowa 2004). However, there is a recognized exception to the general rule; an employer may be held liable for wrongful discharge "when the discharge violates a well-recognized and defined public policy of the state." Tullis v. Merrill , 584 N.W.2d 236, 238-39 (Iowa 1998) (internal quotation marks omitted). Whether or not Braunschweig's discharge violated a well-recognized and defined public policy of the state is the fighting issue as to Braunschweig's tort claim.
To recover damages for a discharge in violation of public policy, Braunschweig "must establish (1) engagement in a protected activity, (2) adverse employment action, and (3) a causal connection between the two." Teachout v. Forest City Cmty. Sch. Dist., 584 N.W.2d 296, 299 (Iowa 1998). The district court resolved the claim on the first prong in its grant of defendants' motion for summary judgment, concluding that Braunschweig was not engaged in a protected activity. On appeal, Braunschweig claims genuine issues of material fact exist as to whether he was engaged in a protected activity and we should reverse the summary judgment. We agree.
Braunschweig claims he was discharged for exercising his right to free speech. He claims to have been terminated for telling the Board that it was not properly following the notice procedures set out by statute and that Holmes was not an eligible candidate for the county attorney position because he did not meet the residency requirements.
"Whether a public employee's speech is protected by the First Amendment requires a two-step judicial inquiry. The first inquiry is whether the employee's speech can be fairly characterized as constituting speech on a matter of public concern." Shepard v. Wapello County , 250 F. Supp. 2d 1112, 1118 (S.D. Iowa 2003) (citing Connick v. Myers, 461 U.S. 138, 146, 103 S. Ct. 1684, 1689, 75 L. Ed. 2d 708, 720 (1983)). Next, if it is determined that the speech addresses a matter of public concern, the court "must balance the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Id. (citing Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S. Ct. 1731, 20 L. Ed. 2d 811, 817 (1968)). Each of these inquiries are matters of law for the court to decide. Id. (citing Connick, 461 U.S. at 148, 103 S. Ct. at 1690-91, 75 L. Ed. 2d at 721 (1983)). However, the fact-finder maintains the responsibility of deciding factual questions "such as the nature and substance of the plaintiff's speech activity. . . ." Id. at 1118-19 (citing Bennis v. Gable, 823 F.2d 723, 729 (3d Cir. 1987)); see Bangert v. Osceola County , 456 N.W.2d 183, 189 (Iowa 1990) ("The questions of intent, purpose and motive are for the fact-finder.").
On summary judgment, the district court concluded as a matter of law that Braunschweig's speech was not a matter of public concern. The district court was "troubled by the resounding theme of [Braunschweig's] arguments concerning the purpose of his speech." The district court went on to hold that
as a matter of law, [the court] finds that the purpose of [Braunschweig's] speech on the notice and residency requirements was not as a citizen commenting on a matter of public concern, but was to promote his private interests in obtaining the appointment as Kossuth County Attorney over another competing for the job.
We disagree with the district court's conclusion that it was making a legal conclusion in so holding. Instead, the question of the purpose of Braunschweig's speech was a factual conclusion that must be decided by the fact-finder, not the court on summary judgment. See Bangert , 456 N.W.2d at 189 (Iowa 1990); see also Shepard , 250 F. Supp. 2d at 1118-19. Therefore, we reverse and remand this issue to the district court for trial.
Civil Rights Claims.
Braunschweig further claims his civil rights under 42 U.S.C. section 1983 were violated by defendants. Braunschweig claims the alleged wrongful discharge discussed above violated section 1983. To the extent Braunschweig claims his procedural due process rights were violated by the defendants' failure to comply with Iowa's veteran's preference law, we affirm the district court's grant of summary judgment in favor of defendants. However, to the extent that Braunschweig claims his civil rights were violated due to his wrongful discharge for exercising his right to freedom of speech, we reverse and remand for trial.
Intentional Interference with a Business Relationship.
Braunschweig's final claim is for intentional interference with a business relationship. We believe the district court's analysis of this issue is sound and we affirm on this issue.