Hegeman v. Kelch

• Decision Date: 11 June 2003
• Docket Number: No. 02-0380.,02-0380.
• Citation: 666 N.W.2d 531
• Parties: Robert James HEGEMAN, Appellant, v. Robert KELCH, Carol Scott-Conner and R. Edward Howell, Appellees.
• Court: Iowa Supreme Court

666 N.W.2d 531

Robert James HEGEMAN, Appellant, v. Robert KELCH, Carol Scott-Conner and R. Edward Howell, Appellees.

No. 02-0380.

Supreme Court of Iowa.

June 11, 2003.

Rehearing Denied August 5, 2003.

Robert James Hegeman, pro se.

Thomas J. Miller, Attorney General, and George A. Carroll, Assistant Attorney General, for appellees.

LAVORATO, Chief Justice.

Robert James Hegeman, an employee of the University of Iowa Hospitals and Clinics (UIHC), appeals from a summary judgment ruling in which the district court held he was not entitled to relief under Iowa's whistleblower statute against defendants, who were Hegeman's superiors. At issue in this appeal is whether one of the superiors was a public official within the meaning of the statute. The district court ruled he was not and we agree.

The defendants cross appeal from the same ruling in which the district court held that there were factual issues on Hegeman's common-law claim of constructive discharge. Because there is no accompanying claim to the constructive discharge action, we conclude that action must fail.

We therefore affirm on appeal, reverse on the cross-appeal, and remand with directions.

I. Background Facts and Proceedings.

Hegeman was director of emergency medical services at UIHC from 1992 to June 1997. The University of Iowa actually employed him, and he reported directly to the chair of the department of surgery, Carol Scott-Conner. At all times relevant to this case, the dean of the college of medicine was Robert Kelch. R. Edward Howell was the chief executive officer of UIHC.

In a November 1996 letter, Hegeman informed the dean "of serious problems that have developed in the relationship between emergency medicine and the department of surgery." He expressed his various concerns about staffing and management of the emergency room and about the quality of emergency care at UIHC. From then on, the relationship between Hegeman and his superiors soured, culminating in his resignation in June 1997.

Later, Hegeman sued Kelch, Scott-Conner, Siroos Shirazi (the vice-chair of the department of surgery at UIHC), and Howell. Shirazi was later dropped from the lawsuit.

The petition alleged that subsequent to Hegeman's November 1996 letter and until his resignation, the defendants "took adverse action regarding" his employment at UIHC "in reprisal for" his disclosure or "in an effort to compel [Hegeman's] resignation." The petition set forth three counts. First, the defendants' actions were in contravention of the public policy expressed in Iowa Code sections 70A.28 and 70A.29 (1997) (Iowa's "whistleblower" statute). Second, the defendants' actions violated his constitutional right to free speech. Last, the defendants' actions gave rise to a common-law tort of constructive discharge.

The defendants moved for summary judgment, arguing, among other things, that as a matter of law Hegeman (1) could not state a claim under chapter 70A because he did not report the alleged activity to a "public official" as intended by section 70A.28 and (2) was not constructively discharged. The district court agreed that the defendants were not "public officials" under Iowa law and granted the motion for summary judgment on the claim under the whistleblower statute. However, the court found that factual issues on the constructive discharge claim precluded summary judgment on this claim. Later, the court sustained the defendants' second motion for summary judgment on Hegeman's free speech claim.

Hegeman appealed from the district court's ruling on the claim under the whistleblower statute. The defendants cross-appealed from the ruling on the constructive discharge claim.

II. Issues.

The district court found that none of the defendants were public officials under Iowa law. Hegeman only contests the court's ruling that Dean Kelch was not a public official within the meaning of section 70A.28.

In their cross-appeal, the defendants contend the district court erred when it failed to grant them summary judgment on Hegeman's constructive discharge claim. In support of their contention, the defendants argue that as a matter of law that claim fails.

III. Scope of Review.

We review a summary judgment ruling for correction of errors at law. Iowa R.App. P. 6.4; Sons of the Union Veterans of the Civil War v. Griswold Am. Legion Post 508, 641 N.W.2d 729, 731 (Iowa 2002). Summary judgment is appropriate under Iowa Rule of Civil Procedure 1.981 only when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Iowa R. Civ. P. 1.981(3); Grinnell Mut. Reinsurance Co. v. Jungling, 654 N.W.2d 530, 535 (Iowa 2002). We examine the record before the district court to determine whether any genuine issue of material fact exists and whether that court correctly applied the law. Sons of the Union Veterans, 641 N.W.2d at 731. Summary judgment is the appropriate remedy where questions of statutory interpretation are involved. Burton v. Univ. of Iowa Hosps. & Clinics, 566 N.W.2d 182, 185 (Iowa 1997).

IV. Dean as Public Official.

A. Applicable law. Iowa Code section 70A.28(2) provides in relevant part:

A person shall not discharge an employee from or take or fail to take action regarding an employee's ... advantage in ... a position in a state employment system administered by ... a state agency as a reprisal ... for a disclosure of any information by that employee to a member or employee of the general assembly, or a disclosure of information to any other public official or law enforcement agency if the employee reasonably believes the information evidences a violation of law or rule, mismanagement, a gross abuse of funds, an abuse of authority, or a substantial and specific danger to public health or safety....

Iowa Code § 70A.28(2) (emphasis added). This provision protects state employees who affirmatively disclose to those designated in the statute information evidencing "a violation of law or rule, mismanagement, a gross abuse of funds, an abuse of authority, or a substantial and specific danger to public health or safety." Id.

Iowa Code section 70A.28(4) provides that a person who violates section 70A.28(2) commits a simple misdemeanor. See Iowa Code § 70A.28(4). Iowa Code section 70A.28(5) provides that section 70A.28(2) may be enforced through a civil action. See Iowa Code § 70A.28(5). Iowa Code section 70A.28(5)(a ) provides that the person violating section 70A.28(2) is liable to "an aggrieved employee for affirmative relief including reinstatement, with or without back pay, or any other equitable relief the court deems appropriate, including attorney fees and costs." Iowa Code § 70A.28(5)(a).

"State employee" and "employee," as used in section 70A.28, are defined to include "persons employed by the state board of regents." Iowa Code § 70A.28(8). The parties do not dispute that Hegeman was a "state employee" at all times. The issue, however, is whether Dean Kelch was a public official.

B. Iowa cases. Although there is no Iowa case law that answers the question whether a college dean is a "public official," there has developed considerable Iowa case law addressing the "public official" issue generally. See, e.g., State v. Spaulding, 102 Iowa 639, 649-50, 72 N.W. 288, 291 (1897) (treasurer of the commissioners of pharmacy was not a "public officer" within the meaning of statute defining the crime of embezzlement of public money by a "public officer"); McKinley v. Clarke County, 228 Iowa 1185, 1186-87, 293 N.W. 449, 450 (1940) (addressing whether a county engineer was an "employee" or an "official" for purposes of determining widow's eligibility for death benefits under the Workers' Compensation Act); Whitney v. Rural Indep. Sch. Dist. No. 4 of Lafayette, 232 Iowa 61, 71, 4 N.W.2d 394, 398 (1942) (holding that a schoolteacher elected by the school board was an "employee," not an "official," and therefore entitled to benefits under the Workers' Compensation Act).

In Hutton v. State, 235 Iowa 52, 16 N.W.2d 18 (1944), the court for the first time set forth the five "indispensable" elements required to make a public employment a public office: (1) the position must be created by the constitution or legislature or through authority conferred by the legislature; (2) a portion of the sovereign power of the government must be delegated to the position; (3) the duties and powers must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power other than the law; and (5) the position must have some permanency and continuity, and not be only temporary and occasional. Id. at 54-55, 16 N.W.2d at 19.

Actually, as the court in Hutton noted, the five-element test had been around since Spaulding. See id. at 55, 16 N.W.2d at 19 ("While the definition in the Spaulding case is in different form and somewhat less comprehensive, the discussion therein recognizes the [five] elements listed...."). Iowa cases addressing the issue of "public official" since Hutton have used this five-element test to determine whether a position qualifies as that of a "public official." See, e.g., State v. Taylor, 260 Iowa 634, 639, 144 N.W.2d 289, 292 (1966), Vander Linden v. Crews, 205 N.W.2d 686, 688 (Iowa 1973); State v. Pinckney, 276 N.W.2d 433, 435-36 (Iowa 1979).

From these cases, it is clear that the court, when applying the five elements to determine whether the position is that of a "public official," places a great emphasis on two of the elements: (1) the statutory powers and duties of a position, and (2) whether that position exercised sovereign power. See, e.g., Spaulding, 102 Iowa at 649, 72 N.W. at 291 (concluding that the treasurer of the commissioners of pharmacy was not a public officer because the position of treasurer ...