Botsko v. Davenport Civil Rights Com'n

• Citation: 774 N.W.2d 841
• Decision Date: 13 November 2009
• Docket Number: No. 06-1542.,No. 07-0895.,06-1542.,07-0895.
• Parties: David BOTSKO, D.M.D., Appellant, v. DAVENPORT CIVIL RIGHTS COMMISSION and Ingelore Nabb, Appellees.
• Court: United States State Supreme Court of Iowa

774 N.W.2d 841

David BOTSKO, D.M.D., Appellant, v. DAVENPORT CIVIL RIGHTS COMMISSION and Ingelore Nabb, Appellees.

No. 06-1542.

No. 07-0895.

Supreme Court of Iowa.

November 13, 2009.

Richard A. Davidson and Thomas D. Waterman of Lane & Waterman, Davenport, for appellant.

Judith J. Morrell, Davenport, for appellee commission.

Dorothy A. O'Brien of Dorothy A. O'Brien, P.L.C., Davenport, for appellee Nabb.

APPEL, Justice.

Ingelore Nabb filed a harassment complaint with the Davenport Civil Rights Commission alleging that her employer, dentist David Botsko, maintained a hostile work environment. Due to the discriminatory behavior, Nabb claimed she was constructively discharged from her position as a dental assistant. The commission found for Nabb, awarding her compensatory and emotional distress damages and attorneys' fees and costs. After affirmances at the district court and court of appeals, we granted further review to consider: (1) whether the district court erred in affirming the commission's award of attorneys' fees and in awarding Nabb additional attorneys' fees on appeal, (2) whether the district court erred in affirming the commission's holding that it was authorized to hold closed deliberative sessions, and (3) whether the district court erred in rejecting Botsko's procedural due process claim.

I. Background Facts and Prior Proceedings.

Nabb filed a complaint alleging that her employer, Botsko, maintained a hostile work environment and constructively discharged her from employment. An administrative law judge (ALJ) originally issued a proposed decision in favor of Botsko. The ALJ concluded that while Nabb was subjected to an unpleasant and disagreeable work environment, she did not establish a claim of harassment based on age, gender, or national origin.

The commission reviewed the recommended decision of the ALJ in two closed-door meetings. After reviewing the record, the commission adopted the factual and credibility findings of the ALJ, but came to a different conclusion with respect to Nabb's claim of sexual harassment. The commission determined that the conduct complained of was "based on sex" and unwelcomed. The commission further concluded that Nabb established a hostile work environment based on sex and that she was constructively discharged as a result. The commission awarded Nabb $5000 in emotional distress damages, $20,000 in compensatory damages, attorneys' fees in the amount of $30,081.86, and commission costs of $2935.70.

Botsko filed a petition for judicial review. Among other things, Botsko challenged the findings of the commission as not supported by substantial evidence, claimed that the commission did not properly honor the ALJ's credibility determinations, asserted that the award of attorneys' fees was not authorized by statute, argued that the commission's closed-door deliberations were unlawful, and claimed that his right to procedural due process was violated when the executive director of the commission, Judith Morrell, assisted the petitioner at the hearing and then proceeded to advise the commission regarding the proper disposition of the case.

After much procedural wrangling, including two remands for additional fact finding by the commission, the district court upheld the decision of the commission in its entirety. Botsko appealed.

We transferred the case to the court of appeals. The court of appeals affirmed the district court judgment. We granted further review. When this court grants further review, it may in its discretion limit its opinion to selected issues or may address all issues presented on appeal. In re Marriage of Ricklefs, 726 N.W.2d 359, 361-62 (Iowa 2007). In this case, we consider only the issues related to attorneys' fees, the lawfulness of the closed-door meetings to deliberate, and aspects of Botsko's procedural due process challenge.

II. Standard of Review.

Although the commission is not an agency within the meaning of the Iowa Administrative Procedure Act (IAPA), Iowa Code chapter 17A (1999), both parties agreed that this court's review is determined by the standards set forth in section 17A.19(8). The legislature has directed that a final decision of a municipal civil rights commission is reviewable to the same extent as a final decision of the Iowa Civil Rights Commission. See Iowa Code § 216.19; Farmland Foods, Inc. v. Dubuque Human Rights Comm'n, 672 N.W.2d 733, 740 (Iowa 2003).

As a result, a reviewing court should reverse the commission's decision only when it is "[i]n violation of constitutional or statutory provisions," "[a]ffected by other error of law," or "unsupported by substantial evidence in the record made before the agency when that record is viewed as a whole[.]" Iowa Code § 17A.19(8)(a), (e), (f). To the extent the court is called upon to determine constitutional issues raised in the administrative proceeding, our review is de novo. Drake Univ. v. Davis, 769 N.W.2d 176, 181 (Iowa 2009).

III. Award of Attorneys' Fees.

Botsko claims that the district court erred in affirming the commission's award of attorneys' fees to Nabb in the amount of $30,081.86.¹ Botsko notes that the Davenport Municipal Code, at the time relevant to these proceedings,² did not specifically authorize an award of attorneys' fees, but instead provided only that parties may be represented by counsel in proceedings before the commission "at their own expense." Davenport Mun.Code § 2.58.170(F). He asserts that in the absence of a statutory provision authorizing attorneys' fees, a party has no right to recover attorneys' fees as part of a damages award.

Nabb conversely argues that Botsko misinterprets the ordinance. First, she claims the provision authorizing a party to be represented by counsel "at their own expense" applies solely to administrative hearings and does not restrict fee-shifting as a form of relief. Second, Nabb points to other sections of the Davenport ordinance to support her claim for attorneys' fees. She notes the ordinance is designed to provide a means for executing the policies within the Iowa Civil Rights Act. Id. § 2.58.010. Under the Iowa Civil Rights Act, a party may be awarded "reasonable attorney fees." Iowa Code § 216.15(8)(a)(8). Nabb concludes that because the ordinance is designed to provide a means of executing the policies of the Iowa Civil Rights Act, and the Iowa Civil Rights Act contains an explicit fee-shifting provision, a similar fee-shifting provision should be implied as part of the local ordinance.

We disagree. We have stated that because attorneys' fee awards are a derogation of the common law, they "are generally not recoverable as damages in the absence of a statute or a provision in a written contract." Kent v. Employment Appeal Bd., 498 N.W.2d 687, 689 (Iowa 1993). Such statutory authorization must be expressed and "must come clearly within the terms of the statute." Thorn v. Kelley, 257 Iowa 719, 726, 134 N.W.2d 545, 548 (1965).

Our very stringent approach to statutory attorneys' fees is reflected in Telegraph Herald, Inc. v. City of Dubuque, 297 N.W.2d 529, 536-37 (Iowa 1980), where we held that a statutory provision authorizing an award of attorneys' fees related to district court proceedings did not imply that attorneys' fees on appeal could also be recovered. Our demanding approach is consistent with cases in other jurisdictions which reject awarding statutory attorneys' fees by implication and require express language. See Comm'r of Envtl. Prot. v. Mellon, 286 Conn. 687, 945 A.2d 464, 470 (2008); Vance v. Speakman, 409 A.2d 1307, 1311 (Me.1979); Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 95 (Tex. 1999); see also Robert L. Rossi, Attorneys' Fees § 6:7, at 6-22 to 6-23 (3d ed. 2002) (noting where statutory provisions contain no language explicitly mentioning attorneys' fees, such fees are generally not authorized).

Iowa Code section 216.19 authorizes a city to adopt its own civil rights ordinance. Dietz v. Dubuque Human Rights Comm'n, 316 N.W.2d 859, 861 (Iowa 1982) (discussing the municipal authority to establish civil rights commissions under section 601A.19 now section 216.19). The relevant question, however, is not whether the state legislature has authorized a fee-shifting provision in a local ordinance enacted pursuant to section 216.19. Instead, the question is whether the ordinance enacted by the City of Davenport at the time of this proceeding contained an express provision clearly authorizing an award of attorneys' fees.

The local ordinance in this case fails to meet this test. While the Davenport ordinance declares that it provides a means for executing the policies within the Iowa Civil Rights Act, such generalized language is not a substitute for language expressly authorizing the payment of attorneys' fees to the prevailing party. While Nabb asserts that important policy objectives are advanced by awarding attorneys' fees in civil rights cases, we will not read into the ordinance a fee-shifting provision when the local legislative body did not approve one. As a result, Nabb is not entitled to an award of attorneys' fees in these proceedings.

IV. Challenge to Closed Meetings.

Botsko claims that the commission improperly deliberated in closed meetings. According to Botsko, the commission has no statutory authority under the Iowa Open Meetings Law, Iowa Code chapter 21, to conduct its deliberations behind closed doors. Botsko concludes that in light of the lack of statutory authorization, his due process rights were violated because the process was fundamentally unfair. He further presses the argument by seeking disclosure of the tapes of the "illegal" closed sessions.

Nabb counters that the closed sessions were authorized by Iowa Code section 21.5(1)(f). This section of the Open Meetings Law provides that closed deliberations may be utilized "[t]o discuss the decision to be rendered in a contested case conducted according to the provisions of chapter 17A." Iowa Code § 21.5...