State v. Taylor

Decision Date14 July 1966
Docket NumberNo. 51904,51904
Citation260 Iowa 634,144 N.W.2d 289
PartiesSTATE of Iowa, Appellee, v. Clifford B. TAYLOR, Appellant.
CourtIowa Supreme Court

Robert G. Bridges, Des Moines, for appellant.

Lawrence F. Scalise, Atty. Gen. of Iowa, Don R. Bennett, Asst. Atty. Gen., Robert Scism, Asst. Atty. Gen., Ray A. Fenton, Polk County Atty., and James D. McKeon, Asst. County Atty., for appellee.

LARSON, Justice.

On the 28th day of January, 1965, the defendant, Clifford B. Taylor, was indicted by the Polk County Grand Jury, charged with corruptly influencing a public official, Billy McGee, a zoning inspector of the City of Des Moines, contrary to the provisions of section 739.11 of the 1962 Code of Iowa. When his demurrer was overruled, he entered a plea of not guilty, was tried, convicted and sentenced to imprisonment in the Polk County jail for a term of sixty (60) days. He appeals. We affirm.

Two principal questions are raised by this appeal: (1) Is a City of Des Moines zoning inspector an officer as contemplated in chapter 739 of the Iowa Code? (2) Did the trial court err in refusing to suppress evidence the inspector obtained on his second visit to defendant's home when no search warrant had been secured prior thereto?

The trial court ruled as a matter of law that the city zoning inspector was on official, and held the evidence of the conversation between these parties in the yard at defendant's home, including the tape recording, was admissible and did not violate defendant's constitutional rights.

Section 739.11 of the 1962 Code of Iowa provides:

'If any person, directly or indirectly, give, offer, or promise, or conspire with others to give, offer, or promise to any officer contemplated in this chapter any valuable consideration, gratuity, service, or benefit whatever, with a view or for the purpose of corruptly influencing said officer's official acts or votes, such person shall be imprisoned in the penitentiary not exceeding two years, or in the county jail not exceeding one year, or be fined in any sum not exceeding three hundred nor less than twenty dollars.'

Section 15--54.01 of the Municipal Code of Des Moines, introduced into evidence by defendant, provides:

'This is technical work in making inspections and investigations to enforce compliance with zoning laws.

'An employee in this class is responsible for inspecting buildings, structures, or land for conformance with provisions of municipal zoning ordinances and for investigating complaints and seeking evidence necessary to obtain convictions in cases of zoning violations. The employee works independently in the field but technical assistance is available from a superior who makes detailed assignments and reviews work through reports and observation of results obtained.

'Illustrative examples of work.

'Investigates complaints on zoning violations, obtains statements or depositions of witnesses, and seeks evidence necessary to obtain convictions in zoning violations.

'Reviews building plans for compliance with zoning laws.

'Inspects areas of the city for zoning violations, inspects construction to insure compliance with zoning ordinances and plans.

'Prepares reports and memoranda and conducts correspondence; issues notices to violators of zoning ordinances.

'Cooperates with other municipal departments and agencies in matters involving zoning enforcement.

'Advises the general public on zoning matters providing information as required to promote understanding and compliance with zoning laws.

'Performs related work as required.

'Desirable knowledge, abilities and skills.

'Considerable knowledge of the geography of Des Moines.

'Working knowledge of state and municipal zoning laws involving zoning administration and enforcement.

'Some knowledge of laws and ordinances governing municipal organization, administration and services.

'Working knowledge of the principles, practices and techniques of investigative work.

'Ability to observe situations analytically and objectively and to record and report them clearly and completely both verbally and in writing.

'Ability to contact the public, to establish and maintain effective working relationships, and to explain and enforce regulations firmly and courteously.

'Minimum experience and training.

'Graduation from a standard high school; experience of a responsible nature in the enforcement of laws and regulations, in inspection and investigative work, or in municipal zoning work; or any equivalent combination of experience and training.'

It is undisputed that Mr. McGee was a duly appointed and acting zoning inspector for the City of Des Moines on November 12, 1964, and that while on duty that forenoon he discovered an addition being made on defendant's home and apartment house on Kingman Boulevard. Mr. McGee testified during his investigation he met the defendant in the back yard and asked him if a permit to build had been secured. When it appeared he had none, the defendant offered the inspector $500.00 to 'forget' about his discovery, but he refused and told defendant he would return. After a conference with law enforcement officers at City Hall, McGee did return, this time with a hidden tape recorder on his person. Further conversation about the zoning violation and defendant's offer followed and were tape-recorded by the inspector. At that time defendant also gave Mr. McGee a check in the sum of $500.00, later introduced as State's Exhibit 'A'. The following day defendant was arrested and charged with violation of section 739.11 of the code.

I. It is somewhat difficult to define with accuracy the term 'public officer' as distinguished from an 'employee'. It has been wisely said that, although an office is an employment, it does not follow that every employee is an officer. Clearly, McGee was a city employee. Was he also shown to be an officer? In the early case of State v. Spaulding, 102 Iowa 639, 72 N.W. 288, we fully considered this problem and set forth what we believed were the acceptable guidelines to be used in determining the status of one holding such a public position. We have never departed from them and they are applicable here. To summarize, five essential elements are required by most courts to make a public employment a public office. They are: (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 government must be delegated to that 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. (5) The position must have some permanency and continuity, and not be only temporary and occasional. See Hutton v. State, 235 Iowa 52, 54, 55, 16 N.W.2d 18, (workman's compensation case). Also see annotations, 53 A.L.R. 595, 93 A.L.R. 333, 140 A.L.R. 1076, 5 A.L.R.2d 416, 417.

While State v. Spaulding, supra, 102 Iowa 639, 72 N.W. 288, was criminal, the guidelines set out therein and the recitation of elements necessary to make a public employment a public office have been adopted in other fields of law. Hutton v. State, supra; McKinley v. Clarke County, 228 Iowa 1185, 1189, 1190, 293 N.W. 449, (workman's compensation case); Heiliger v. City of Sheldon, 236 Iowa 146, 154, 18 N.W.2d 182, (workman's compensation case); Francis v. Iowa Emp. Sec. Comm., 250 Iowa 1300, 1303, 98 N.W.2d 733, (retirement and pension case). It will be noted that, in determining the status of one holding a public position, consideration is also given to such matters as the term of office, requirement of oath and bond, although these elements, we have said, are not deemed essential to a public office. Francis v. Iowa Emp. Sec. Comm., supra. With these rules and basic elements in mind, we turn to the showing here, for in the end it must be said each case turns upon its own circumstances. Hutton v. State, supra.

II. It is not disputed that the position of Des Moines zoning inspector was created by city ordinance under due authority conferred upon the city by the Iowa legislature. Chapter 414, Code of 1962; Des Moines Municipal Code, section 15--54.01; City of Des Moines v. Reiter, 251 Iowa 1206, 1210, 102 N.W.2d 363, and citations.

In this city ordinance, introduced into the record by defendant, the powers and duties of a zoning inspector are set out, detailed and explained. The ordinance prescribes that this inspector shall work 'independently in the field', that he investigate complaints of zoning violations, that he seek evidence of violations to obtain convictions, that he review building plans to determine compliance with zoning laws, that he inspect areas of the city for violations, cooperate 'with other municipal departments and agencies in matters involving zoning enforcement', and that he make reports, issue notices to violators, and advise the general public as to zoning law requirements. His power and duty are not subject to the will and direction of any superior officer or body. He acts on behalf of the public and, in doing so, exercises a portion of the sovereign power of government. The position is appointive and is made by the city manager. The term of office is indefinite, but being under civil service has some permanency and continuity. The head of this department is the zoning enforcement officer. He advises but does not attempt to fix or control the inspector's actions in the field. He is little more than the senior officer in that department. It also appears the inspector is covered by a 'blanket bond'; his starting salary is $229.00 bi-weekly, and the ordinance does not call for an oath of office. Certain ability, knowledge, education, experience and training for this position are required, including good judgment in effecting proper enforcement policies and in dealing with the public.

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