Copeland v. State

• Decision Date: 31 August 2022
• Docket Number: 21-0981
• Parties: TOMMY MARION COPELAND, Plaintiff-Appellant, v. STATE OF IOWA and IOWA AIR Defendant-Appellees.
• Court: Iowa Court of Appeals

TOMMY MARION COPELAND, Plaintiff-Appellant, v. STATE OF IOWA and IOWA AIR Defendant-Appellees.

No. 21-0981

Court of Appeals of Iowa

August 31, 2022

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.

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 pretermination 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 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 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.

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 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 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...