State v. Bartz

• Decision Date: 18 December 1974
• Docket Number: No. 55707,55707
• Citation: 224 N.W.2d 632
• Court: Iowa Supreme Court
• Parties: STATE of Iowa, Appellant, v. Harvey BARTZ and Arnold Buechele, Appellees.

Page 632

224 N.W.2d 632

STATE of Iowa, Appellant, v. Harvey BARTZ and Arnold Buechele, Appellees.

No. 55707.

Supreme Court of Iowa.

Dec. 18, 1974.

Richard C. Turner, Atty. Gen., and Roxanne Barton Conlin, Asst. Atty. Gen., Des Moines, for appellant.

William Pappas, Mason City, for appellees.

Heard by MOORE, C.J., and LeGRAND, REES, HARRIS and McCORMICK, JJ.

REES, Justice.

This is an appeal by the State from an order dismissing its action for the removal of defendants, Worth County Supervisors, under the provisions of Chapter 66, The Code, 1971. We reverse.

In April, 1971 an investigation was initiated by the state auditor's office and the Iowa Bureau of Criminal Investigation into the suspected misconduct in office of defendants, Harvey Bartz and Arnold Buechele, and one Boyd Harmon, the three members of the Worth County Board of Supervisors. The investigation focused on mileage claims submitted by defendants to Worth County, their alleged misuse of county funds and property, and their acceptance of gratuities in return for official favors.

During the course of the investigation by the state auditor's office, hearings were held to gather information. All of defendants refused to testify at such hearings on the grounds their testimony might tend to incriminate them, or subject them to public ignominy or disgrace. The information gathered at the hearings was subsequently laid before the Worth County grand jury. All defendants waived the Fifth Amendment privilege they had asserted at the prior hearings, and testified before the grand jury concerning the matters under investigation. No indictments against the supervisors were returned.

On July 27, 1972 the attorney general, under authority of § 66.3, The Code, 1971 filed actions in the district court of Worth County seeking removal of defendants Bartz and Buechele, and Harmon. In the petition it was asserted all of the parties had been guilty of willful misconduct or maladministration in office, willful or habitual neglect or refusal to perform the duties of their offices, and corruption. By agreement, the three causes were consolidated for hearing. Hearing was had and the court entered its order dismissing the actions against the defendants Bartz and Buechele, and removing Harmon from office. The State appeals from the dismissal of its actions against defendants.

Actions for removal of public officers from office are summary in nature and are triable in equity. Section 66.18, The Code, 1971; Rule 334, Rules of Civil Procedure. There is essentially but one question before us as triers De novo on this appeal: Does the record compiled below contain sufficient evidence of misconduct on the part of defendants Bartz and Buechele as elected public officials to necessitate their removal from office under the provisions of Chapter 66. In resolving that question, we give weight to findings of the trial court, but nonetheless assume the responsibility of reviewing the entire record in determining the case anew on appeal. Vilter v. Myers, 255 Iowa 818, 123 N.W.2d 334; Storck v. Pascoe, 247 Iowa 54, 72 N.W.2d 467.

I. We note preliminarily that in its conclusions of law, trial court commented on the refusal of defendants to testify at the hearings conducted by the state auditor and Bureau of Criminal Investigation on the grounds that to do so might incriminate them or hold them up to public ridicule and ignominy. The trial court correctly observed that the claim of the Fifth Amendment privilege against self-incrimination may be considered in a removal action. See Allen v. Lindeman, 259 Iowa 1384, 148 N.W.2d 610, and Amana Society v. Selzer, 250 Iowa 380, 94 N.W.2d 337. The trial court also noted the record before it indicated defendants had claimed the Fifth Amendment privilege on advice of counsel, however, and therefore gave little weight to the fact defendants made such claim, observing it would have reached the same conclusions without recourse to such evidence.

We agree the record does indicate defendants claimed the Fifth Amendment privilege against self-incrimination on advice of counsel and agree with trial court the evidence of that claim is entitled to little weight in this controversy.

II. The record conclusively shows defendants were guests on an expense-paid fishing trip to a resort in Minnesota, and that defendants and their wives were guests on an expense-paid trip to a baseball game in Minneapolis. The hosts were Mr. Falk, a contractor, who testified he did an average of $50,000 in business with Worth County annually, Mr. Freudenburg, a tractor salesman, and Mr. Rosen, a concrete pipe salesman. Falk testified the total bill at the resort in Minnesota amounted to $576 and that it was split three ways among himself, Freudenburg and Rosen. John Barry, a Worth County engineer was also a guest on the trips mentioned above. Falk testified the expense-paid trips were in consideration for small favors that had been extended to him by the defendants. Defendants both testified they had extended no favors to anyone in payment for the hospitality which had been extended to them.

The record indicates purchases were made by the supervisors on other than 'low bid' bases, and that purchases could be made by them exercising personal judgments.

Freudenburg, the tractor salesman, testified he sold tractors to Bartz and Buechele for use in their supervisor districts, but had not been successful in selling any machinery for use in Supervisor Harmon's district. It is interesting to note that Harmon was not a guest on the junket to the fishing resort when Freudenburg was one of the hosts.

In commenting upon the acceptance by defendants of the expense-paid trips, trial court accepted as true the representation of the witnesses that no business was discussed on the trips, but noted one of the hosts testified the trips were for past favors, and that there was a strong implication from the testimony that such hospitality might have been in payment for future favors. Trial court observed there was no evidence in the record which induced it to conclude the donors of the favors reaped specific benefit to a greater degree following the trips than they had enjoyed prior to the extension of hospitality, and that defendants may well have avoided being influenced by such favors.

We view the evidence having to do with the extension of hospitality to defendants and the acceptance of the benefits of the expense-paid trips, ad being violative of § 741.1, The Code, 1971. Said section provides:

'It shall be unlawful for any agent, representative, or employee, officer or any agent of a private corporation, or a public officer, acting in behalf of a principal in any business transaction, to receive, for his own use, directly or indirectly, any gift, commission, discount, bonus, or gratuity connected with, relating to, or growing out of such business transaction; and it shall be likewise unlawful for any person, whether acting in his own behalf or in behalf of any copartnership, association, or corporation, to offer, promise, or give directly or indirectly any such gift, commission, discount, bonus, or gratuity. The provisions of this section shall not be construed to apply to officials or employees of the state of Iowa nor to legislators or legislative employees.'

In a prosecution brought under the provisions of § 741.1, The Code, we held the acceptance of hospitality by county supervisors from private persons, when related to a business transaction, constitutes prohibited corrupt influence. State v. Prybil, 211 N.W.2d 308 (Iowa 1973). Our holding in Prybil, while in relation to a criminal prosecution rather than a civil action for removal of a public officer, is nonetheless pertinent to the matter before us.

The fact that § 741.1 is a penal statute and therefore must be narrowly construed and interpreted, and § 66.1(3) is a civil statute and may be more broadly interpreted is no reason for not relating them to each other In pari materia. See Goldman v. State, Tex.Civ.App., 277 S.W.2d 217, 222. See also Sutherland Statutory Construction, 4th Ed., Vol. 2A, § 51.03, page 298, and Vol. 3, § 59.08--59.09, page 26, Et seq. We feel § 741.1 should be considered In pari materia with Chapter 66, The Code, and particularly § 66.1(3) thereof.

In Prybil, quoting from United States v. Irwin, 354 F.2d 192, 196, (2d Cir. 1965), cert. den. 383 U.S. 967, 86 S.Ct. 1272, 16 L.Ed.2d 308 (where the 2d Circuit Court of Appeals construed 18 U.S.C. § 201(f) and (g), a statute similar to § 741.1, The Code), we said:

'The statute does not require proof the transaction is corrupt, only that the transaction is the reason for the payment. If it is, the payment is corrupt but not necessarily the transaction. 'It is not necessary for the Government to show that the gift caused or prompted or in any way affected the happening of the official act or had anything to do with its nature or manner or means by which it was performed. '' Prybil, supra, 211 N.W.2d at p. 312.

Reading §§ 741.1 and 66.13 In pari materia, and applying the standard of proof enunciated in Prybil with regard to prosecutions under the former to removal actions under the latter, we must conclude defendants' misconduct here in accepting favors from private contractors constitutes strong evidence of corruption under Ch. 66 just as it would violate § 741.1.

In fairness, we note Prybil was not available to the trial court in the instant case, as our opinion there was not filed until October 17, 1973. Had Prybil been available, we have little doubt trial court may well have reached a different result in these cases.

III. Plaintiff claims defendants entered into wrongful transactions involving county property, and failed to properly account for the proceeds of the sale thereof.

Each defendant maintained a petty cash fund, or what has been characterized in the record as a 'slush' fund in his county office. These funds contained proceeds of...