State of Iowa v. Abraham K. Watkins , 914 N.W.2d 827 ( 2018 )

IN THE SUPREME COURT OF IOWA
No. 17–0183
Filed June 29, 2018
STATE OF IOWA,
Appellee,
vs.
ABRAHAM K. WATKINS,
Appellant.
Appeal from the Iowa District Court for Van Buren County,
James M. Drew, Judge.
The defendant challenges his removal from office as the Van Buren
County Attorney after the district court found he committed willful
misconduct or maladministration in office. REVERSED AND REMANDED
WITH INSTRUCTIONS.
Alfredo Parrish, Gina Messamer, and John Maschman of Parrish
Kruidenier Dunn Boles Gribble Gentry Brown & Bergmann L.L.P., Des
Moines, for appellant.
Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor
General, and Julie S. Kim, Assistant Attorney General, for appellee.
F. Montgomery Brown of F.M. Brown Law Firm, P.L.L.C., West Des
Moines, Special Prosecutor, for appellee.
2
ZAGER, Justice.
An attorney removed from his elected position as Van Buren County
Attorney challenges the district court order for his removal. Chapter 66 of
the Iowa Code authorizes a district court to remove “[a]ny appointive or
elective officer, except such as may be removed only by impeachment,
holding any public office in the state or in any division or municipality
thereof” in certain circumstances. Iowa Code § 66.1A (2015). We must
now decide whether an elected county attorney was properly removed
under this statute for sexual harassment. For the reasons set forth herein,
we conclude that the conduct of the county attorney, while deserving the
disapproval it received from the district court, did not rise to the level of
misconduct that would warrant the “drastic” and “penal” remedy of a court
order removing an elected official from office. See State v. Callaway, 268
N.W.2d 841, 842 (Iowa 1978) (using these terms to characterize chapter
66). We reverse the judgment of the district court and vacate the order
removing the defendant from the office of Van Buren County Attorney. We
remand the case for further proceedings consistent with this opinion.
I. Facts and Procedural Background.
In May 2013, Abraham Watkins was sworn into the Iowa bar and
subsequently opened a solo practice in Keosauqua, Iowa. Watkins
operated his law practice out of an office located on the first floor or main
level of the two-story home he shared with his family. Watkins and his
family mostly lived upstairs. However, the home’s kitchen, laundry room,
and one of the two bathrooms are located on the main level, adjacent to
the office area. Watkins’s wife, Renee Watkins, worked closely with her
husband in the law office as the office manager for his private practice. In
September 2014, Watkins hired twenty-year-old Jasmin Wallingford as his
legal assistant. Two months later, Watkins was elected as the Van Buren
3
County Attorney after running as an independent, and he assumed office
on January 1, 2015.
Following Watkins’s election as the Van Buren County Attorney,
which is a part-time position, Renee began to split her time between
serving as the office manager for her husband’s private practice and the
victim coordinator for the county attorney’s office. Additionally,
Wallingford began working part-time for Watkins in the county attorney’s
office, as well as part-time for him in his private law office.1 Wallingford
became close to the Watkins family, even labeling herself an “honorary
family member.” Wallingford and the Watkins family shared personal
details of their lives with each other. During this time, Wallingford assisted
Watkins and Renee with their young daughters and socialized with them
outside of the office. These social events included out-of-town trips
Wallingford took with the family in which they visited waterparks and
stayed in hotels together.
Based on a recommendation from Chris Kauffman, a friend of
Watkins, Watkins hired Virginia Barchman as a part-time assistant
county attorney in April 2015. At the time, Barchman had been retired
for five years after a twenty-four-year career as an attorney with the Iowa
Attorney General’s Office’s Area Prosecutions Division. Barchman began
working in the same first-floor office area shared by Watkins, Renee, and
Wallingford, though tensions arose between Watkins and Barchman not
long after Barchman’s hiring. The pair engaged in a number of intense
arguments that made it difficult for them to work together on cases.
Disagreements between Watkins and Barchman continued to
escalate in the spring of 2016. Wallingford also began to look for other
1With the approval of the county board of supervisors, Watkins used his home
office as his county attorney office.
4
employment beginning in the spring of 2016. After a domestic-abuse trial
that was held in the summer of 2016, Barchman expressed her
frustrations with Watkins by criticizing his performance during the trial
and accusing him of “smelling like booze.” 2 In August, Barchman obtained
permission from the Van Buren County Board of Supervisors (Board) to
work in a different office space in the Van Buren County courthouse due
to issues she had with the noise in Watkins’s office and Watkins himself.
She labeled this new workspace an “Abe-free zone.” Watkins soon began
seeking job applications for an assistant county attorney, which
Barchman interpreted to mean Watkins was looking to replace her.
Although Watkins disputed that he had been drinking during the
trial, he clearly had an issue with alcohol abuse outside the workplace.
Renee grew tired of Watkins’s drinking habits, and the couple would
constantly argue about their marital issues in the office. Finally, on
August 5, Renee and the Watkinses’ children left the home to visit Renee’s
family in North Carolina because Renee was exasperated with Watkins’s
drinking. As a result, Watkins contacted Kauffman, who helped Watkins
receive medical care for his drinking issues. Watkins also contacted and
met with Hugh Grady from the Iowa Lawyers Assistance Program. Grady
recommended that Watkins immediately stop drinking, visit a counselor,
attend Alcoholics Anonymous meetings, and maintain regular contact with
him. Watkins took the necessary steps to follow through with these
recommendations, beginning with his sobriety. Throughout these
personal struggles during the summer of 2016, both Watkins and Renee
confided in Wallingford for support.
2Wallingford, among others, later testified that Watkins was never intoxicated
during the trial. The trial resulted in convictions of the defendant on all counts.
5
On August 9, Wallingford resigned from her positions with Watkins.
Wallingford stated in her resignation letter, “I have learned many things in
my time here, including what makes a hostile work environment.” As her
reason for leaving, she wrote, “Due to aberrant behavior and a hostile work
environment, I no longer can continue my position and feel confident about
coming into work.” Kauffman met with Wallingford around the time of her
resignation and encouraged her to write down all of her complaints
regarding Watkins. Wallingford prepared her list in the week following her
resignation. Barchman turned over Wallingford’s resignation letter to
John Finney, the Van Buren County Auditor, and contacted her former
colleague Scott Brown in the Iowa Attorney General’s Office about the
resignation letter and Wallingford’s complaints with Watkins.
Wallingford’s list totaled approximately fifty-five complaints about
her work with Watkins over the previous two years. The overwhelming
majority of her complaints involved her frustration with the menial work
tasks she was given and the way they made her feel inferior to Watkins.
These complaints included “criticizing me in front of customers,” “constant
yelling between him [and] Renee,” “the importance of him [and] not us,”
“my #1 job was to be there to answer the phone,” and “[he] very often
expected me to figure [work] out then remind me I didn’t go to law school.”
While the majority of Wallingford’s complaints dealt with work
assignments and the lack of respect she felt she received, several of the
complaints involved conduct potentially amounting to sexual harassment.
Wallingford reported that twice Watkins came down the stairs and
entered the office area to get coffee while wearing only athletic shorts or
boxer briefs in the early morning. On one of those occasions, Wallingford
laughed and Watkins walked over to her desk. However, he did not stay
6
long. According to Wallingford, neither of these occurrences happened
within six months of the filing of the petition for removal.
On another occasion, Watkins showed Wallingford two photographs
of his naked wife and a video Watkins made of an incident where his wife
accidentally squirted breast milk in Wallingford’s car. The display of the
photographs and the video occurred after work hours in the family kitchen
while the family and Wallingford were having dinner together. Renee
immediately objected to Watkins’s display of the photographs, and the
incident in the family kitchen ended upon her objection. Although the
timing of this incident is unclear, it did not occur within six months of the
filing of the petition for removal.
Additionally, Watkins made several sexual comments to Wallingford.
Some of these occurred in the workplace. On one occasion, Watkins told
Wallingford that her “boobs [were] distracting him.” On another occasion,
after seeing a particular woman, Watkins told Wallingford, “Man, I
wouldn’t want to see her naked.” Watkins also complained to Wallingford
that his wife did not want to have sex and said he wished he had a wife
who wanted to have sex with him all the time. On another occasion,
Watkins made an inappropriate sexual pun about the name of a cleaning
product in the presence of Wallingford and two women custodians.
Wallingford took this as a poor attempt at humor, and she knew that the
other women did not understand it.
At a birthday party for one of his daughters, which took place in a
park on a Saturday, Watkins commented to Kauffman about the breasts
of a courthouse employee. The following Monday, Watkins attempted to
bring up the subject again in front of Renee and Wallingford. Renee cut
him off and told Watkins she did not want to hear about it.
7
On a different occasion, Wallingford was speaking with Renee about
Wallingford’s visit to a gynecologist. Watkins overheard this conversation
and began to pester Wallingford about what was wrong with her, at which
point Renee made a comment along the lines that Wallingford had a
“broken vagina.” Watkins later asked Wallingford on another occasion
whether “her vagina was still broke.” Finally, after Renee left the family
home with their daughters on August 5, Watkins contacted Wallingford by
telephone on Sunday night. During the course of a long and wide-ranging
discussion, Watkins made the comment that he was glad he had kept nude
photographs of his old girlfriends.
As noted above, Wallingford submitted her letter of resignation on
August 9. Wallingford subsequently attempted to retract her resignation
after Barchman informed her that she could work with Barchman from an
office in the old courthouse. However, Wallingford was not rehired. She
soon found employment with the Van Buren County Sheriff’s Office.
Barchman also witnessed some of the incidents described above.
On one occasion, Barchman saw what she believed to be Watkins
appearing downstairs in his underwear. She made her objections to his
behavior clear to Watkins, and there is no indication that this ever
happened again in her presence. Further, Watkins used a crude sexual
term as a nickname for a particular female attorney in Barchman’s
presence. She told Watkins that this was offensive to her, and she never
heard him use the expression again.
Watkins also asked Wallingford if her “vagina was still broke” on one
occasion when Barchman was present. Moreover, Barchman saw a
photograph of Watkins’s wife while she was pregnant, nude, and covered
in blue paint on Watkins’s computer screen by accident when she went to
his office to discuss something with him.
8
Barchman could not recall hearing Watkins ever make a single
“come-on” line to any female employee or client. Her initial complaints in
July 2016 were about Watkins’s performance during the aforementioned
domestic-abuse trial. Her concerns at the time related to Watkins’s alleged
drinking during the trial.
In mid-August, Barchman forwarded Wallingford’s letter of
resignation to Jon Swanson, the attorney for Van Buren County. Swanson
then notified the Board, which took steps to investigate the allegations
against Watkins. The Board held two closed sessions to discuss the
allegations and how to handle them. After the first closed session, the
Board retained attorney Thomas H. Miller at the recommendation of
Swanson to conduct a formal investigation and advise the Board on the
best course of action.
Miller is a former Iowa Assistant Attorney General who has
experience handling public-official misconduct. Miller was also
Barchman’s supervisor when the two worked in the Iowa Attorney
General’s Office. During his investigation, Miller spoke to a number of
individuals in Van Buren County including Barchman, Wallingford,
Kauffman, and the Van Buren County Sheriff. Miller never spoke with
Watkins or Renee as part of his investigation. Further, Barchman
incorrectly reported to Swanson and Miller that Watkins refused to
cooperate with alcohol treatment recommendations made by Grady.
At the second closed session, Miller and the Board discussed the
results of his investigation. During this discussion, Miller told the Board
about possible ways to initiate removal proceedings of Watkins under Iowa
Code section 66.3. One route included bringing the removal petition by
five registered voters of the county as specifically provided for in section
66.3(3). Despite the existence of this method to initiate the proceedings,
9
Miller advised the Board that through “a little bit of legal wrangling,” the
Board could initiate the removal proceedings by appointing an acting
county attorney under Iowa Code section 331.754(4) and the acting county
attorney would then be authorized to initiate the action to remove the
elected county attorney. The Board decided to proceed on this basis.
For reasons that are not apparent from this record, Miller did not
contact the Iowa Attorney General’s Office to have it initiate the removal
action as specifically authorized by Iowa Code section 66.3(1). This is the
method most often used in removal actions. Rather, upon Miller’s
recommendation, the Board retained attorney F. Montgomery Brown as
acting county attorney and authorized him to initiate the removal action
utilizing the procedure outlined above.
After Brown met with Watkins and learned he would not resign
voluntarily, Brown filed the petition to remove Watkins from office
pursuant to Iowa Code sections 66.11 and 331.754(4) on September 29.
Once Brown filed the removal proceedings, the district court appointed
him to appear on the State’s behalf and prosecute Watkins’s removal
proceedings pursuant to Iowa Code section 66.12.
In its final amended petition, the State sought removal of Watkins
on five separate grounds. Four involved allegations that Watkins engaged
in “willful misconduct or maladministration in office” in violation of Iowa
Code section 66.1A(2) by (1) creating a “hostile work environment” that
included sexual harassment, (2) supplying a minor with alcohol in
violation of Iowa Code sections 123.47(1) and 123.47(2)(a), (3) retaliation,
and (4) accepting three private-practice cases that created conflicts of
interest with his position as county attorney. The petition also sought
Watkins’s removal on the ground that he had been intoxicated in violation
of Iowa Code section 66.1A(6).
10
Watkins filed a motion to dismiss the removal petition. The motion
urged that the Board did not have the power to initiate a removal action
under Iowa Code section 66.3, nor could the Board empower Brown to
prosecute the action under Iowa Code section 331.754(4). Additionally,
Watkins claimed a breach of contract by the county. Watkins alleged his
signature on the Van Buren County Employee Handbook and
consideration in the form of legal services and compliance with the
county’s rules created a binding contract. Watkins further claimed the
county breached this contract when it did not “promptly name an impartial
investigator” as provided for in the handbook. Watkins cited Miller’s
former working relationship and friendship with Barchman. Moreover,
Watkins argued the Board violated the handbook’s employment policy of
progressive discipline by initiating termination before taking other, less
drastic measures.
On October 28, the district court denied Watkins’s motion to
dismiss. The district court ruled the Board had the authority to appoint
an attorney under Iowa Code section 331.754(4) to act as county attorney
when the elected county attorney had a conflict of interest. The district
court ruled that Watkins had an “obvious” conflict of interest in this civil
proceeding. The district court reasoned that Brown, as the lawfully
appointed acting county attorney on the matter, had the same authority
over the matter for which he was appointed under Iowa Code section
331.754(4) as the elected county attorney. Thus, the district court found
that Brown was considered a county attorney for purposes of Iowa Code
section 66.3(5).
Trial on the petition for removal commenced on October 31 and
continued sporadically over the next several months with final submission
of evidence occurring on December 22. On January 3, 2017, the district
11
court issued its Order for Removal from Office. The district court ordered
Watkins’s removal from the office of Van Buren County Attorney solely
based on the sexual-harassment claim. In reaching its decision, the
district court found a “significant contrast between the recollections of the
State’s witnesses versus the recollections of Mr. Watkins; his wife; and
current employee, Ms. Richardson.” The district court found the State’s
witnesses more credible and considered their testimony to be truthful
because nothing indicated the witnesses fabricated their testimony or had
a substantial personal interest in the outcome in comparison to Watkins’s
witnesses, who, the district court noted, were not eager to testify.
In addition to the aforementioned complaints from Wallingford and
Barchman, the district court also took into account testimony from Tayt
Waibel and Kauffman. The district court found the testimony of Waibel,
who had worked for Watkins in his private law office, to be truthful. Her
testimony recounted inappropriate sexually charged remarks made by
Watkins. One of those comments was directed at Waibel personally and
occurred on a weekend after Watkins was served with removal papers.
After making the inappropriate statement, Watkins acknowledged, “This
is probably why I’m in trouble for sexual harassment.” Moreover, the
district court relied on testimony from Kauffman, who testified that
Watkins liked to talk about sex, frequently offered to show him naked
pictures of his wife, and once commented on the breasts of a courthouse
employee.
In its decision to remove Watkins from office, the district court
reasoned,
During his tenure as County Attorney, Mr. Watkins has
engaged in a pattern of conduct that is unacceptable by any
reasonable standard. Many people, probably most, would
consider much of his conduct to be outrageous or even
12
shocking. The fact that Mr. Watkins is an attorney trained in
the law makes his behavior all the more troublesome. Iowa’s
Rules of Professional Conduct for attorneys recognize that
lawyers holding public office assume legal responsibilities
going beyond those of other citizens. A lawyer’s abuse of
public office can suggest an inability to fulfill the professional
role of a lawyer. I.R.P.C. 32:8.4 Comment 5.
The State has proven that Mr. Watkins has engaged in
misconduct or maladministration by regularly committing
sexual harassment. The bigger question is whether his
conduct was willful, which requires proof that he acted
intentionally with a purpose to do wrong. . . .
. . . Mr. Watkins’s inappropriate conduct was pervasive
and existed over a significant period of time thereby negating
any claim of mistake or an isolated lapse of judgment. His
actions were clearly intentional. As a lawyer he knew better
but continued to subject his two young female employees to
sexually related banter, and in some instances images, that
have no place in the work setting. This is especially true for a
county attorney’s office. Given the extent and stunning
nature of his conduct one can, and in the Court’s opinion
must, infer that he was acting with a bad or evil purpose.
Therefore, the State has established that his conduct was
willful.
The State withdrew its retaliation claim at closing, conceding that it
failed to prove Watkins retaliated against Barchman. The district court
did not further address the retaliation allegation or the State’s claim that
Watkins supplied a minor with alcohol in violation of Iowa Code sections
123.47(2)(a) and 123.47(5). Additionally, the court made no findings of
fact regarding the allegations that Watkins committed willful misconduct
or maladministration in office based on the conflicts-of-interest claim
against him, finding instead that none of the allegations justified Watkins’s
removal. The district court also found insufficient evidence to establish
the State’s intoxication allegation, noting that “substantial evidence,”
including the testimony of the presiding judge at the trial, established that
13
Watkins was not intoxicated in court. 3 The district court also did not make
any findings regarding the Board’s alleged breach of the handbook or the
conflicts of the Board members who helped initiate the removal
proceedings. Additional facts will be included within our following
analysis. Watkins timely filed an appeal, which we retained.
II. Standard of Review.
Our standard of review for rulings on questions of statutory
interpretation is for correction of errors at law. State v. Iowa Dist. Ct., 889
N.W.2d 467, 470 (Iowa 2017). In removal proceedings, the State bears the
burden of proof to establish that the public official committed the charged
acts of misconduct or maladministration in office with “willful intent to do
wrong [and] an evil purpose upon the part of the accused, . . . by clear,
convincing, satisfactory evidence.” State ex rel. Crowder v. Smith, 232 Iowa
254, 255, 4 N.W.2d 267, 268 (1942). This standard requires the State to
establish the facts “by more than a preponderance of evidence, but
something less than establishing a factual situation beyond a reasonable
doubt.” State v. Bartz, 224 N.W.2d 632, 638 (Iowa 1974).
In determining whether the State has met this burden, we review
the evidence submitted in a removal proceeding de novo. Callaway, 268
N.W.2d at 842.
There is essentially but one question before us as triers [d]e
novo on this appeal: Does the record compiled below contain
sufficient evidence of misconduct on the part of [the]
defendant[ ] . . . as [an] elected public official[ ] to necessitate
[his] removal from office under the provisions of Chapter 66.
3As previously noted, the testimony of the witnesses confirmed that Watkins was
never intoxicated during the trial, and the trial resulted in convictions on all counts.
14
Bartz, 224 N.W.2d at 634. To answer this question, we give the trial court’s
findings weight “but nonetheless assume the responsibility of reviewing
the entire record in determining the case anew on appeal.” Id.
III. Analysis.
Watkins presents a number of issues on appeal. First, Watkins
challenges the manner in which the removal action was initiated. Second,
Watkins disputes the district court’s determination that his conduct
amounted to willful misconduct or maladministration in office. See Iowa
Code § 66.1A(2). Third, Watkins contends the district court should have
dismissed the removal action because Van Buren County did not retain
an impartial investigator to investigate the allegations of sexual
harassment as promised in the employee handbook. Fourth, he asserts
the district court should have dismissed the removal action because it was
tainted by a conflict of interest. Fifth, Watkins claims the district court
should have dismissed the removal action because the Board failed to
implement the progressive disciplinary procedures set forth in the
handbook before initiating the removal process. Finally, Watkins argues
he is entitled to attorney’s fees on the dismissed grounds for removal.
A. The Initiation of Removal Proceedings. Watkins contends the
district court erred when it denied his motion to dismiss the removal action
against him because the Board unlawfully initiated the removal
proceedings. He maintains that the Board could not empower an acting
county attorney appointed under Iowa Code section 331.754(4) to initiate
removal proceedings because only the elected county attorney or attorney
general may initiate removal proceedings as the sole complainant under
Iowa Code section 66.3. Watkins also argues allowing the Board to appoint
an acting county attorney to prosecute the removal proceedings under
section 331.754(4) would render the special-prosecutor provision of
15
section 66.12 superfluous. We begin our analysis by reviewing the
relevant statutes regarding removal and the appointment of an acting
county attorney.
Iowa Code section 331.754(4) provides, “The board may appoint an
attorney to act as county attorney in a civil proceeding if the county
attorney and all assistant county attorneys are disqualified because of a
conflict of interest from performing duties and conducting official
business.” Iowa Code § 331.754(4). Iowa Code section 66.3 is specific to
removal and states the following:
The petition for removal may be filed:
1. By the attorney general in all cases.
2. As to state officers, by not fewer than twenty-five
electors of the state.
3. As to any other officer, by five registered voters of the
district, county, or municipality where the duties of the office
are to be performed.
4. As to district officers, by the county attorney of any
county in the district.
5. As to all county and municipal officers, by the
county attorney of the county where the duties of the office
are to be performed.
Id. § 66.3. Finally, Iowa Code section 66.12 states, “When the proceeding
is brought to remove the county attorney, the court may appoint an
attorney to appear in behalf of the state and prosecute such proceedings.”
Id. § 66.12.
Nothing in Iowa Code section 66.3 distinguishes between elected
and acting county attorneys. “When a proposed interpretation of a statute
would require the court to ‘read something into the law that is not
apparent from the words chosen by the legislature,’ the court will reject
it.” State v. Iowa Dist. Ct., 730 N.W.2d 677, 679 (Iowa 2007) (quoting State
16
v. Guzman-Juarez, 591 N.W.2d 1, 2 (Iowa 1999)). Still, incorporating
section 331.754(4) into section 66.3 could potentially allow a county board
of supervisors to circumvent the limits of section 66.3 since “county boards
of supervisors” are not among the entities authorized to bring removal
petitions. See Iowa Code § 66.3. Nonetheless, in this case we do not have
merely the Board’s action appointing Brown pursuant to section
331.754(4). The district court also appointed Brown pursuant to section
66.12. Therefore, without deciding whether Brown would have had
authority to pursue the removal action if the court had not appointed him
under section 66.12, we decline Watkins’s request to hold the removal
petition should have been dismissed based on lack of authority.
B. Removal from Office. Iowa Code section 66.1A states,
Any appointive or elective officer, except such as may be
removed only by impeachment, holding any public office in
the state or in any division or municipality thereof, may be
removed from office by the district court for any of the
following reasons:
1. For willful or habitual neglect or refusal to perform
the duties of the office.
2. For willful misconduct or maladministration in
office.
3. For corruption.
4. For extortion.
5. Upon conviction of a felony.
6. For intoxication, or upon conviction of being
intoxicated.
7. Upon conviction of violating the provisions of
chapter 68A.
Iowa Code § 66.1A. “A proceeding to remove a public officer under this
statute is a drastic one and is penal or quasi-criminal in character.” City
of Des Moines v. Dist. Ct., 241 Iowa 256, 262, 41 N.W.2d 36, 39 (1950).
17
“Removal is drastic and penal.” Callaway, 268 N.W.2d at 842. “The object
‘is to rid the community of a corrupt, incapable or unworthy official.’ ” Id.
(quoting State v. Welsh, 109 Iowa 19, 21, 79 N.W. 369, 370 (1899)). “[T]he
remedy provided by statute for the removal of duly elected public officials
is heroic in nature and relatively drastic in a system where the usual
method of removing officeholders is by resort to the ballot.” Bartz, 224
N.W.2d at 638.
We have previously emphasized the summary and expedited nature
of removal and noted that it “implement[s] a legislative intent that a public
officer guilty of willful misconduct or maladministration be removed during
the same term of office in which the conduct occurred that provided
grounds for removal.” State ex rel. Doyle v. Benda, 319 N.W.2d 264, 266
(Iowa 1982). Essentially, removal proceedings exist to provide a remedy
when the misconduct is serious enough that waiting until the next election
is inadequate. See id. (noting that removal proceedings are designed to
occur before the next election and are mooted if the official is voted out of
office or reelected with knowledge of the alleged wrongdoing). They are
meant to protect public interests, and those interests are imperiled when
a public official’s “administration of the office is marked by such grave
misconduct or such flagrant incompetency as demonstrates his unfitness
for the position.” State ex rel. Barker v. Meek, 148 Iowa 671, 680, 127
N.W. 1023, 1026 (1910).
The State bears the burden of proof in removal proceedings to
establish the alleged wrongdoer’s “willful intent to do wrong [and] an evil
purpose upon the part of the accused, . . . by clear, convincing, satisfactory
evidence.” Smith, 232 Iowa at 255, 4 N.W.2d at 268. This standard of
proof is defined as “the establishment of facts by more than a
preponderance of the evidence, but something less than establishing a
18
factual situation beyond a reasonable doubt.” Bartz, 224 N.W.2d at 638.
Moreover, with regard to section 66.1A(2), the phrase “in office” modifies
both “willful misconduct” and “maladministration,” so the State bears the
additional burden of showing by clear, convincing, and satisfactory
evidence that the alleged wrongdoer’s acts were committed within the
scope of his or her official responsibilities. See, e.g., State ex rel. Gebrink
v. Hospers, 147 Iowa 712, 714, 126 N.W. 818, 819 (1910) (noting removal
“should be exercised only in cases of official wrongdoing established by
clear and satisfactory evidence”). 4 Therefore, the public official’s alleged
4The standard we have described requiring the public official to have committed
the misconduct within the scope of official responsibilities under chapter 66 generally
comports with those followed in other jurisdictions. See, e.g., Ala. Const. art. VII, § 173(a)
(allowing for the removal of certain public officials “for willful neglect of duty, corruption
in office, incompetency, or intemperance in the use of intoxicating liquors or narcotics to
such an extent, in view of the dignity of the office and importance of its duties, as unfits
the officer for the discharge of such duties for any offense involving moral turpitude while
in office, or committed under color thereof, or connected therewith”); Kan. Stat. Ann. § 60-
1205 (West, Westlaw through 2018 Reg. Sess.) (providing Kansas public officials, “except
those subject to removal from office only by impeachment,” must forfeit office if they
“(1) willfully engage in misconduct while in office, (2) willfully neglect to perform any duty
enjoined upon such person by law, (3) demonstrate mental impairment such that the
person lacks the capacity to manage the office held, or (4) . . . shall commit any act
constituting a violation of any penal statute involving moral turpitude”); Utah Code Ann.
§ 10-3-826 (West, Westlaw through 2018 Gen. Sess.) (“In case any municipal officer shall
at any time wilfully omit to perform any duty, or wilfully and corruptly be guilty of
oppression, malconduct, misfeasance, or malfeasance in office, the person is guilty of a
class A misdemeanor, shall be removed from office, and is not eligible for any municipal
office thereafter.”); id. § 77-6-1 (“All officers of any city, county, or other political
subdivision of this state not liable to impeachment shall be subject to removal as provided
in this chapter for high crimes and misdemeanors or malfeasance in office.”); State ex
rel. Hardie v. Coleman, 155 So. 129, 132 (Fla. 1934) (en banc) (“Malfeasance [as grounds
for removal of a public official] has reference to evil conduct or an illegal deed . . . .
[Further,] misfeasance has reference to the performance by an officer in his official
capacity of a legal act in an improper or illegal manner. . . .”); Maddox v. Williamson Cty.
Bd. of Comm’rs, 475 N.E.2d 1349, 1355 (Ill. App. Ct. 1985) (defining “malfeasance” and
“misfeasance” as grounds for removal in the same manner as Florida did in Hardie);
Woodward v. Commonwealth, 984 S.W.2d 477, 479 (Ky. 1998) (holding a public official is
guilty of malfeasance when he or she “perform[s] an official act” and the act is “wrongful,
unjust or constitute[s] gross negligence”); Ekstedt v. Village of New Hope, 193 N.W.2d
821, 828 (Minn. 1972) (finding a public employee can be discharged for just cause or
misconduct when that cause is “one which specially relates to and affects the
19
wrongdoing must take place within his or her capacity as a public official
and not when the official was acting as a private citizen.
As we have noted, the district court removed Watkins from office for
sexual harassment, either rejecting or not reaching the other grounds. The
State does not argue on appeal that any of those other grounds should
have been sustained. Thus, our sole duty on appeal is to decide whether
the allegations of sexual harassment are such as to constitute willful
misconduct or maladministration in office warranting removal from office.
1. Defining “willful misconduct or maladministration.” We have
defined “willfully” in the removal context to mean that the public official
must act “intentionally, deliberately, with a bad or evil purpose, contrary
to known duty.” State v. Roth, 162 Iowa 638, 651, 144 N.W. 339, 344
(1913). In the removal context, “[c]onduct may be voluntary, thoughtless,
or even reckless, yet not necessarily willful. Nor does unlawfulness
necessarily imply willfulness.” Meek, 148 Iowa at 674, 127 N.W. at 1024
(citation omitted).
We have routinely applied a subjective-intent standard to examine
the public official’s purpose when he or she engaged in the charged acts
to determine whether the official intentionally and deliberately committed
those acts. For example, in Roth, we held that the removal of a mayor and
chief of police was improper based on claims that they were “willfully”
neglecting to prevent baseball from being played on Sundays when such
administration of the office, and [is] restricted to something of a substantial nature
directly affecting the rights and interests of the public. The cause must be one touching
the qualifications of the officer or his performance of its duties, showing that he is not a
fit or proper person to hold the office.” (quoting State ex rel. Hart v. Common Council, 55
N.W. 118, 120 (Minn. 1893))); Daugherty v. Day, 116 S.E.2d 131, 135 (W. Va. 1960))
(holding justification for the removal of a public official includes official misconduct or
evil actions in connection with official duties, including “unlawful behavior by a public
officer in relation to the duties of his office, willful in character.” (quoting Kesling v. Moore,
135 S.E. 246, 248 (W. Va. 1926))).
20
activity may or may not have been illegal on the Sabbath day. 162 Iowa
at 651, 144 N.W. at 344. In doing so, we examined the subjective intent
of the public officials, noting that the city officials were acting in good faith
based on their uncertainty of the law at issue rather than neglecting to
enforce it. Id.
Further, in State ex rel. Cochran v. Zeigler, we held the state failed to
demonstrate willful misconduct in office to justify the removal of a mayor
based on allegations that the mayor violated the law by having an interest
in contracts for goods or services to be furnished or performed for the city.
199 Iowa 392, 397, 202 N.W. 94, 96 (1925). We reached this conclusion
based on the lack of evidence in the record “to indicate a corrupt purpose
upon the part of [the mayor], or that fraud or imposition was practiced
upon the city.” Id. Moreover, in State v. Manning, we held the state failed
to show public officials acted willfully to justify their removal for willful
and habitual neglect, maladministration, and corruption in office because
we could not find a “purpose, on the part of said officials in what they did,
to harm, or which was inimical to the interests of such city.” 220 Iowa
525, 528, 259 N.W. 213, 215–16 (1935).
Thus, it is not a question of whether a reasonable person would find
that the public official acted contrary to his or her duties or even
unlawfully. Nor is it a question of how outrageous or inappropriate the
public official’s conduct is perceived by our court or others in the
community. Rather, the first issue before us hinges on the public official’s
subjective intent to act with a bad or evil purpose to commit his or her
charged acts of wrongdoing contrary to a known duty.
In addition to the public official’s subjective intent at the time of the
charged misconduct or maladministration, we must also discern whether
the public official acted contrary to a known duty when he or she engaged
21
in these acts. See Roth, 162 Iowa at 651, 144 N.W. at 344. More
specifically, we have held that removal “should be exercised only in cases
of official wrongdoing established by clear and satisfactory evidence.”
Hospers, 147 at 714, 126 N.W. at 819. To illustrate, in Callaway, we
found willful misconduct or maladministration in office to justify removal
where a sheriff repeatedly assaulted prisoners without justification by
kicking, striking, and punching them, spraying them in the face with
mace, and kneeing them in the groin. 268 N.W.2d at 843–47, 848. In
reaching this decision, we noted the sheriff’s treatment of the prisoners
violated various laws, including his legal duty “to protect prisoners from
insult and annoyance.” Id. at 847. Likewise, we found removal was
justifiable for willful misconduct or maladministration in office when
county supervisors loosely managed funds and falsely claimed payment
for mileage that they had not travelled. Bartz, 224 N.W.2d at 636, 637–
38, 638–39.
Similarly, in State ex rel. Duckworth v. Smith, we affirmed the
removal of a county treasurer for willful misconduct or maladministration
in office after the county treasurer acted alongside a treasurer’s office
employee to withdraw funds from the county treasurer’s office for private
purposes. 219 Iowa 5, 7, 257 N.W. 181–82 (1934). In reaching our
conclusion, we noted the county treasurer repeatedly took money from the
treasurer’s office “after he had been told that such action was unlawful”
and “after being warned by the state checkers.” Id. at 7, 257 N.W. at 182.
We also looked at the treasurer’s knowledge of his own wrongdoing, noting
certain actions by the treasurer “seem[ed] to indicate knowledge on [his]
part . . . that the abstraction of funds from the treasurer’s office was not
proper.” Id. at 6, 257 N.W. at 181.
22
In summary, to remove a public official from office for willful
misconduct or maladministration in office, the State has the burden to
prove by clear, convincing, and satisfactory evidence that the official
committed the charged acts “intentionally, deliberately, with a
[subjectively] bad or evil purpose, contrary to known duty.” Roth, 162 Iowa
at 651, 144 N.W. at 344; see Smith, 232 Iowa at 255, 4 N.W.2d at 268.
2. The definition of sexual harassment in the Iowa Rules of
Professional Conduct. In determining that Watkins committed willful
misconduct or maladministration in office through his charged acts, the
district court applied the standard for sexual harassment set forth in the
Iowa Rules of Professional Conduct rather than the employment law
standard for a hostile-work-environment sexual-harassment claim. We
have defined the term “sexual harassment” in the context of professional
misconduct cases to “include any physical or verbal act of a sexual nature
that has no legitimate place in a legal setting.” Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Moothart, 860 N.W.2d 598, 604 (Iowa 2015). The
standard for sexual harassment established under the rules does not
include the necessary analysis of the accused’s intent that is required in
the removal context to determine whether the accused acted “intentionally,
deliberately, with a bad or evil purpose, contrary to a known duty.” Roth,
162 Iowa at 651, 144 N.W. at 344.
Further, the professional rules “are designed to provide guidance to
lawyers and to provide a structure for regulating conduct through
disciplinary agencies.” Iowa R. Prof’l Conduct ch.32, Scope [20]. The
“[v]iolation of a Rule should not itself give rise to a cause of action against
a lawyer nor should it create any presumption in such a case that a legal
duty has been breached.” Model Rules Prof’l Conduct Scope [20] (Am. Bar
Ass’n 2016); see also Stender v. Blessum, 897 N.W.2d 491, 504 (Iowa 2017)
23
(holding that a violation of the rules of professional conduct “cannot be
used to establish a per se claim for legal malpractice”); Ruden v. Jenk, 543
N.W.2d 605, 611 (Iowa 1996) (holding the rules of professional conduct do
“not undertake to define standards of civil liability”). An additional remedy
exists within the attorney disciplinary system for any ethical violations
that Watkins committed.
3. The definition of sexual harassment in employment law.
Employment law recognizes two different forms of sexual harassment
under Title VII of the Civil Rights Act and the Iowa Civil Rights Act (ICRA),
namely, quid pro quo and hostile or abusive work environment. See
McElroy v. State, 637 N.W.2d 488, 499 (Iowa 2001); see also Vivian v.
Madison, 601 N.W.2d 872, 873 (Iowa 1999) (“The ICRA was modeled after
Title VII of the United States Civil Rights Act. Iowa courts therefore
traditionally turn to federal law for guidance in evaluation the ICRA.”). The
State alleges Watkins created a hostile or abusive work environment. It
does not accuse Watkins of engaging in quid pro quo sexual harassment,
so our analysis in this case focuses only on the legal standards governing
a sexually hostile work environment.
“ ‘A hostile work environment is a cumulative phenomenon,’ and a
series of individual episodes of inappropriate behavior eventually can
amount to a hostile environment.” Simon Seeding & Sod, Inc. v. Dubuque
Human Rights Comm’n, 895 N.W.2d 446, 470 (Iowa 2017) (quoting Alvarez
v. Des Moines Bolt Supply, Inc., 626 F.3d 410, 421 (8th Cir. 2010). Hostile-
work-environment claims “recognize[] workplace discrimination affects the
full spectrum of disparate treatment in the workplace and target[s]
discrimination that requires employees to work in a discriminatorily
abusive or hostile workplace.” Farmland Foods, Inc. v. Dubuque Human
Rights Comm’n, 672 N.W.2d 733, 743 (Iowa 2003). Such claims are
24
“actionable when the sexual harassment is so severe or pervasive as to
alter the conditions of employment and create an abusive working
environment.” McElroy, 637 N.W.2d at 499.
“The gravamen of any sexual harassment claim is that the alleged
sexual advances were ‘unwelcome.’ ” Meritor Sav. Bank, FSB v. Vinson,
477 U.S. 57, 68, 106 S. Ct. 2399, 2406 (1986) (quoting 29 C.F.R.
§ 1604.11(a) (1985)). “A recurring point in [the jurisprudence governing
sexually hostile work environments] is that ‘simple teasing,’ offhand
comments, and isolated incidents (unless extremely serious) will not
amount to discriminatory changes in the” employment conditions to create
an abusive work environment. Faragher v. City of Boca Raton, 524 U.S.
775, 787–88, 118 S. Ct. 2275, 2283 (1998) (quoting Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 82, 118 S. Ct. 998, 1003 (1998)). “The
correct inquiry is whether [complainant] by her conduct indicated that the
alleged sexual advances were unwelcome.” Meritor Sav. Bank, 477 U.S. at
68, 106 S. Ct. at 2406.
To establish a hostile work environment, the plaintiff
must show: (1) he or she belongs to a protected group; (2) he
or she was subjected to unwelcome harassment; (3) the
harassment was based on a protected characteristic; and
(4) the harassment affected a term, condition, or privilege of
employment.
Farmland Foods, 672 N.W.2d at 744. Such harassment occurs “[w]hen
the workplace is permeated with ‘discriminatory intimidation, ridicule, and
insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment.’ ” Id. at
743 (alteration in original) (quoting Harris v. Forklift Sys., Inc., 510 U.S.
17, 21, 114 S. Ct. 367, 370 (1993)). The standards governing a hostile
work environment are intended to “filter out complaints attacking ‘the
ordinary tribulations of the workplace, such as the sporadic use of abusive
25
language, gender-related jokes, and occasional teasing.’ ” Burlington N. &
Santa Fe Ry. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 2415 (2006)
(quoting Faragher, 524 U.S. at 788, 118 S. Ct. at 2283–84).
Accordingly, the plaintiff must establish that “he or she subjectively
perceived the conduct as abusive, [and] that a reasonable person would
also find the conduct to be abusive or hostile.” Farmland Foods, 672
N.W.2d at 744. To determine whether a reasonable person would find the
challenged conduct to be abusive or hostile, the fact finder must examine
all of the circumstances,
including: (1) the frequency of the conduct, (2) the severity of
the conduct, (3) whether the conduct was physically
threatening or humiliating or whether it was merely offensive,
and (4) whether the conduct unreasonably interfered with the
employee’s job performance. These factors and circumstances
must disclose that the conduct was severe enough to amount
to an alteration of the terms or conditions of employment.
Thus, hostile-work-environment claims by their nature
involve ongoing and repeated conduct, not isolated events.
Id. at 744–45 (citations omitted).
The district court ruling in this case did not actually find the State
proved the elements of a hostile-work-environment sexual-harassment
claim.
4. Sufficiency of the evidence to warrant removal. In determining
whether the State has met its burden to remove Watkins from office, the
dispositive question is whether the record contains “sufficient evidence of
misconduct on the part of [the] defendant[] . . . as [an] elected public
official[] to necessitate [his] removal from office under the provisions of
Chapter 66.” Bartz, 224 N.W.2d at 634. We certainly agree that sexual
harassment can be the basis for removal from office under chapter 66. The
applicable legal standard, though, is not that found in the rules of
professional conduct or in civil employment law. Rather, it is the standard
26
found in chapter 66. In this case, the district court did not discuss our
precedents interpreting chapter 66 and its precursors.
Instead, the district court focused on three things. First, it
emphasized that Watkins repeatedly engaged in “unacceptable behavior.”
As the district court explained, “[T]he citizens of any county have a strong
interest in ensuring that their elected officials behave appropriately.”
Second, the court noted that Watkins’s conduct could create monetary
liability for the county. Third, the district court observed that Watkins
was an attorney and the Iowa Rules of Professional Conduct prohibit “any
physical or verbal act of a sexual nature that has no legitimate place in a
legal setting” regardless of whether a sexual-harassment claim is
established as defined in the civil rights laws. Moothart, 860 N.W.2d at
604.
To be clear, sexual harassment in any form is never acceptable or
appropriate behavior. It is important that our court system, like all
institutions, protect and support victims of sexual harassment. Watkins’s
actions and statements were disgraceful, disrespectful, and inappropriate.
Certainly, we do not condone such behavior. As morally reprehensible as
we find Watkins’s behavior, this is not the standard by which we need to
analyze whether the State has met its high burden to establish whether
Watkins committed willful misconduct or maladministration in office by
creating a sexually hostile work environment. We are a court of law, not
a court of public opinion. We now analyze the facts of this case and apply
the legal standards applicable to removal actions.
Determining whether a public official engaged in willful misconduct
or maladministration in office is necessarily fact specific. As already noted,
Watkins’s conduct did not amount to a criminal violation and the claim
that Watkins committed sexual harassment has not been adjudicated. See
27
City of Des Moines, 241 Iowa at 262, 41 N.W.2d at 39 (“A proceeding to
remove a public officer under this statute is a drastic one and is penal or
quasi-criminal in character.”). Also, many of the incidents involved
situations that occurred outside of the workplace or in the context of
Watkins’s friendship with certain witnesses rather than in the office or in
his official capacity as county attorney. See, e.g., Hospers, 147 Iowa at
714, 126 N.W. at 819 (stating removal “should be exercised only in cases
of official wrongdoing”). While not excusing Watkins’s egregious conduct,
the record does not establish that Watkins was guilty of grave misconduct,
demonstrated flagrant incompetence, or was otherwise unfit to perform his
duties as county attorney. See Meek, 148 Iowa at 680, 127 N.W. at 1026
(noting the interests of the public are imperiled when a public official’s
“administration of the office is marked by such grave misconduct or such
flagrant incompetency as demonstrates his unfitness for the position”).
Finally, what the State must prove by clear, convincing, and satisfactory
evidence is that Watkins committed his charged acts “intentionally,
deliberately, with a bad or evil purpose, contrary to known duty.” Roth,
162 Iowa at 651, 144 N.W. at 344; see Smith, 232 Iowa at 255, 4 N.W.2d
at 268.
By all accounts, the Law Office of Abraham Watkins/the county
attorney’s office was an unstructured environment. Wallingford got along
well with Watkins and considered herself a close friend to Renee. The
individuals in the office teased and played pranks on each other. Watkins,
Renee, and Wallingford discussed intimate details of their lives with one
another. They socialized with one another on a frequent basis, including
at least one or two overnight trips that included the Watkinses’ children.
The events that led to Wallingford’s resignation began on August 5.
It was on that date that Watkins and Renee were in a major verbal fight.
28
Renee decided to remove herself and the children from the home and visit
her family out of state. Alcohol abuse by Watkins was a factor in Renee’s
decision to leave. By this time, Wallingford was fed up with the tension
and arguing in the office by all concerned. But the tipping point for her
was an insulting remark that Watkins made to her over the weekend about
her father. By Monday evening, Wallingford decided to resign from her
position and contacted Kauffman and Barchman regarding her decision.
Kauffman advised her at that time to write down all of her complaints
about Watkins, which she did the following week.
Of the fifty-plus complaints that Wallingford listed about Watkins,
approximately eleven were the incidents of sexual harassment that we
have discussed. Significantly, Wallingford acknowledged at trial that when
she was referring to a “hostile work environment” in her letter of
resignation, she was referring to the yelling and uncomfortableness in the
office and not a hostile work environment in the sexual-harassment sense.
Most of the highly inappropriate comments and photographs
Watkins needlessly and insensitively subjected Wallingford to did not
concern Wallingford herself. In addition, many of the comments were not
made during work but in various nonwork contexts such as at an evening
dinner at Watkins’s home, personal phone calls over the weekend, and at
a birthday party for Watkins’s daughter.
There is no evidence that Watkins sought to misuse his office or his
position of power or authority to obtain anything from Wallingford or
anyone else. The testimony reveals that Watkins believed his sexual
comments and jokes were made in the context of his personal relationship
with Wallingford—because he believed that was the type of relationship
they had: one in which they joked, teased, and made sarcastic remarks to
one another in the office. He was wrong of course; his comments and
29
actions crossed way over the line. However, Watkins’s state of mind is a
relevant consideration in determining his culpability under chapter 66.
Another underlying problem was that Watkins used part of the first floor
of his home as the county attorney office. This turned out to be a bad
arrangement, but it had been approved by the Board.
Based on our close review of the entire record, we are not persuaded
that Watkins acted “with a bad or evil purpose, contrary to known duty,”
which requires more than a showing that Watkins acted intentionally.
Roth, 162 Iowa at 651, 144 N.W. at 344. Nor are we persuaded that he
committed many of the charged acts within the scope of his official
responsibilities as the county attorney. See, e.g., Hospers, 147 Iowa at
714, 126 N.W. at 819.
Therefore, we must reverse the district court’s order removing
Watkins from the office of county attorney. The State failed to meet the
high burden required to show “by clear, convincing, satisfactory evidence”
that Watkins intended to commit willful misconduct or maladministration
in office based on the record. See Smith, 232 Iowa at 255, 4 N.W.2d at
268. As we have previously held, “[c]onduct may be voluntary,
thoughtless, or even reckless, yet not necessarily willful.” Meek, 148 Iowa
at 674, 127 N.W. at 1024. While we agree that Watkins’s conduct was
voluntary, thoughtless, and offensive, the evidence does not show that he
conducted himself in such a way that it was done willfully with an evil
purpose.
Again, it is not our function on appeal to judge whether the conduct
of Watkins was unprofessional, inappropriate, offensive, or rude. Nor is it
for us to determine whether this is behavior we would expect in a private
law office, let alone in the office of an elected county attorney. Clearly, we
would hope for and expect much better. Our obligation is to follow the law
30
that requires the State to meet its high burden of proof in removal
proceedings to establish Watkins’s “willful intent to do wrong [and] an evil
purpose upon the part of the accused . . . by clear, convincing, satisfactory
evidence.” Smith, 232 Iowa at 255, 4 N.W.2d at 268. Removal proceedings
exist primarily to protect public interests, and those interests are imperiled
when a public official’s “administration of the office is marked by such
grave misconduct or such flagrant incompetency as demonstrates his
unfitness for the position.” Meek, 148 Iowa at 680, 127 N.W. at 1026. The
State failed to meet its high burden to demonstrate corruption, negligence,
or incompetence warranting the drastic and penal remedy of removal of
Watkins from office as the Van Buren County Attorney.
Notably, our decision to reverse the district court removal of Watkins
from office
does not mean that [his] actions . . . are not beyond the reach
of the persons [he was] elected to serve. At the next election,
[his] actions are subject to review by the electorate. Under the
separation-of-powers doctrine, “electoral control [is] an
important restraint on [the] conduct [of elected officials].”
Residential & Agric. Advisory Comm., LLC v. Dyersville City Council, 888
N.W.2d 24, 51 (Iowa 2016) (Wiggins, J., concurring specially) (fourth
alteration in original) (quoting Teague v. Mosley, 552 N.W.2d 646, 650
(Iowa 1996)).
In our democratic system of government, it is vitally important that
the judiciary not be seen as imposing standards of conduct on elected
officials, even if those standards are firmly grounded. We are judges, not
guardians of behavior for elected officials. We do not believe the legislature
intended to allow courts to remove elected officials for crude, outrageous,
or even shocking behavior by itself. Nor do we believe the potential for
governmental monetary liability should be the basis for invoking chapter
31
66. There are many instances where the conduct of public officials exposes
the government to financial liability; only a few warrant the drastic remedy
of removal. The facts of this case do not warrant such a drastic remedy
under our precedent.
Chapter 66 places significant authority in the hands of the judiciary.
We must keep in mind the possibility that this authority could be misused
in a partisan way to benefit one political faction or one elected official at
the expense of another. The judiciary should exercise considerable
restraint in such disputes.
In conclusion, based upon our de novo review of the entire record,
the evidence did not establish willful misconduct or maladministration in
office within the meaning of section 66.1A(2). The State’s evidence was
insufficient to meet the high bar necessary for the removal of Watkins from
his elected office. Consequently, we reverse the judgment of the district
court, vacate the district court’s order removing Watkins from the office of
Van Buren County Attorney, and remand the case for entry of an order
dismissing the petition for removal and reinstating Watkins as Van Buren
County Attorney.
C. Watkins’s Additional Claims Regarding His Removal. Due to
our decision reversing the district court and vacating the order for removal
of Watkins, we need not address Watkins’s remaining arguments for
reversal.
D. Attorney’s Fees. Under Iowa Code section 66.23, “[i]f the
petition for removal is dismissed, the defendant shall be reimbursed for
the reasonable and necessary expenses incurred by the defendant in
making a defense, including reasonable attorney’s fees, as determined by
the court.” Iowa Code § 66.23. The district court found that only one of
the State’s five grounds for removal actually warranted removal and, thus,
32
denied Watkins’s motion for attorney fees. It held that attorney’s fees can
only be awarded under section 66.23 if the petition is dismissed in its
entirety. Since we now decide to vacate Watkins’s removal and remand
the case to the district court to enter an order dismissing the entirety of
the removal petition against him, Watkins is entitled to the reasonable and
necessary expenses, including attorney’s fees, that he incurred throughout
his defense. See id. On remand, the district court must determine
appropriate attorney’s fees.
IV. Conclusion.
For the aforementioned reasons, we reverse the district court’s
judgment and vacate its removal order of Watkins from the office of Van
Buren County Attorney. We also remand the case for his reinstatement
as Van Buren County Attorney, as well as a determination of Watkins’s
reimbursement for the reasonable attorney’s fees and any other
reasonable and necessary expenses he incurred throughout his defense of
these proceedings.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Waterman and Mansfield, JJ., join this opinion. Appel, J., files a
special concurrence. Cady, C.J., files a dissenting opinion in which Hecht,
J., joins. Wiggins, J., files a dissenting opinion.
33
#17–0183, State v. Watkins
APPEL, Justice (concurring specially).
If this was an ordinary employment relationship, an employer might
well fire Abraham Watkins. But here we are dealing with an elected official.
And while the statute itself permits removal as a result of “willful
misconduct or maladministration,” Iowa Code § 66.1A(2) (2015), these
elastic terms have been dramatically narrowed by our caselaw to establish
the highest possible requirement for judicial removal.
We have required what amounts to “specific intent” to do wrong in
a criminal or quasi-criminal way and the need for heroic action by the
court to save the day. “A proceeding to remove a public officer under this
statute is a drastic one and is penal or quasi-criminal in character.” City
of Des Moines v. Dist. Ct., 241 Iowa 256, 262, 41 N.W.2d 36, 39 (1950).
“Removal is drastic and penal.” State v. Callaway, 268 N.W.2d 841, 842
(Iowa 1978). “[T]he remedy . . . is heroic in nature and relatively drastic in
a system where the usual method of removing officeholders is by resort to
the ballot.” State v. Bartz, 224 N.W.2d 632, 638 (Iowa 1974).
Yet I view this as a close case. I do not agree with all of Justice
Zager’s gloss on the facts. In particular, I agree with much of what Chief
Justice Cady says about the use of sexual humor to objectify and demean
women. I part company with Chief Justice Cady primarily as a result of
my view of the extraordinarily demanding standard for removal as
articulated in our caselaw and its application to the facts of this case. On
the narrow but critical legal issue of the appropriate standard for removal,
I am closer to Justice Zager.
Because of my differences with both major opinions in this case, I
do not join either of them. In the end, however, I conclude that Watkins’s
34
behavior approaches, but does not cross, the heroic and stringent penal
or quasi-criminal standard for removal articulated in our historic caselaw.
I want to make clear that today should not be regarded as a
vindication for Watkins. By the narrowest of margins, he has escaped
heroic, quasi-penal judicial removal from his office of county attorney. In
short, this case should be a model for county attorneys of how not to
conduct themselves in office.
35
#17–0183, State v. Watkins
CADY, Chief Justice (dissenting).
I respectfully dissent. Sexual harassment will not end until it is seen
as serious enough to end.
Over a century ago, in 1910, a pharmacist from Floyd County named
Matye Carragher challenged a law that disqualified female pharmacists
from selling intoxicating liquors. In re Carragher, 149 Iowa 225, 226, 128
N.W. 352, 352 (1910). We rejected her claim. Id. at 228–30, 128 N.W. at
353–54. We rejected it not because we did not strive to do justice, but
because we could not see the injustice in her claim. We simply could not
see then what is perfectly evident today. Instead, what Matye Carragher
saw as discrimination in 1910, we saw as a “natural and reasonable”
distinction in life. Id. at 229, 128 N.W. at 354. We saw the different gender
treatment in the sale of intoxicants, but only as one of many common
aspects of a given profession or business in which “individuals of one sex
are in general better fitted than those of the other sex.” Id. at 229–30, 128
N.W. at 354. The injustice seared into that view could not be seen on that
day in 1910 because the lens used to judge the facts and examine the
claim was the same old lens that had been used in the past. The smudges
of the past obscured the injustice now fully visible in hindsight.
The value of the Carragher case today is not in its holding, but in
the lesson it leaves behind. One of the most important observations that
can be drawn from our legal history is justice can only replace injustice
when a challenge to the law is examined through the lens of those who
have been forced by our law to endure the injustices of our past. Until
this is done, the past remains, as does the injustice.
The law governing the removal of public officials from office, the law
governing the role of the courts in that process, and the legal framework
36
governing the identification of sexual harassment in the workplace all
support a finding of willful misconduct in this case. While the resolution
of this claim ultimately lies in the eye of the beholder, our law long ago
opened the door for workplace sexual harassment to be viewed as a ground
for removal. Courts must simply see it.
I. Elected Officials and the Role of the Court.
The legislature is empowered to create public offices. Hutton v.
State, 235 Iowa 52, 54, 16 N.W.2d 18, 19 (1944). Pursuant to this
authority, the legislature is free to impose qualifications or limitations on
officers as it deems expedient. The public’s right to have its preferred
individual serve in public office is, therefore, necessarily tempered by the
legislature’s authority to prescribe credentials and grounds for removal.
The state’s allegiance to the democratic process of elections is not superior
to its allegiance to the democratic process of checks and balances
established to remove errant elected officials whose conduct demonstrates
their disqualification for office.
Over 150 years ago, in the first publication of the Iowa Code, the
legislature saw fit to create a safety valve in order to remove certain public
officials whose conduct rendered them unworthy of public office. Iowa
Code § 397 (1851). Within the title governing election laws and
procedures, our legislature has vested the courts with the authority to
remove “officers for misfeasance, malfeasance or nonfeasance in office.”
1909 Iowa Acts ch. 78. The causes are “not merely penal,” as the “grounds
for removal” now codified in chapter 66 “go to the question of qualification.”
State ex rel. Kirby v. Henderson, 145 Iowa 657, 662 124 N.W. 767, 769
(Iowa 1910). The grounds for removal therefore do not stand opposed to,
but are rather integrated within, the democratic process. The integrity of
37
Iowa’s elections is preserved when the legislature’s proclaimed
qualifications are enforced.
At issue in this case is whether the record contains sufficient
evidence of misconduct to require Abraham Watkins’s removal from office
under Iowa Code chapter 66. The question is, ultimately, one of
qualification. We must decide whether Watkins engaged in “willful
misconduct or maladministration in office” such that he acted contrary to
his duties as a county attorney and is removable under section 66.1A(2)
(2015). Under our system of government, the responsibility to interpret
section 66.1A and decide this question lies with this court.
II. Analytical Framework.
In interpreting the removal provision, we are mindful that the
legislature, through chapter 66, sought to “rid the community of . . .
corrupt, incapable or unworthy official[s].” State v. Callaway, 268 N.W.2d
841, 842 (Iowa 1978) (quoting State v. Welsh, 109 Iowa 19, 21, 79 N.W.
369, 370 (1899)). The statute’s core purpose “is for the public benefit and
to protect the public interest.” City of Des Moines v. Dist. Ct., 241 Iowa
256, 263, 41 N.W.2d 36, 39 (1950). The legislature, therefore, imbued the
courts with the power to remove certain public officials with the
understanding that, with each new generation, the meaning of
“misconduct” and “maladministration” will evolve. Cf. Griffin v. Pate, 884
N.W.2d 182, 186 (Iowa 2016) (“[T]he meanings of . . . constitutional
doctrines are not necessarily static, and [our analysis] instead considers
current prevailing standards that draw their ‘meaning from the evolving
standards . . . that mark the progress of a maturing society.’ ” (fourth
alteration in original) (quoting Trop v. Dulles, 356 U.S. 86, 100–01, 78
S. Ct. 590, 598 (1958))).
38
Accordingly, our analysis must begin with an understanding that,
as society matures, so do its standards for worthiness and capability in
public office. We are obliged to not only look backward at the historical
principles and precedent surrounding section 66.1A, but also to look
forward and consider prevailing and evolving standards and expectations
of public officials. Cf. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Deremiah,
875 N.W.2d 728, 739 (Iowa 2016) (“From time to time we step back and
consider whether our approach to sanctions in our cases is generally
sufficient to advance the purposes of our ethics rules.”). In this
assessment, we are aided by our authority to observe legislative facts and
use those facts to inform our ruling. 5 We ground our decision not in our
own subjective principles, but in an objective review of prior and prevailing
notions of misconduct and maladministration.
III. Removing Public Officials for Willful Misconduct or
Maladministration in Office.
A. Legislative History of Iowa Code Section 66.1A. Before Iowa
became the twenty-ninth state in the Union in 1846, the legislature
promulgated territorial statutes. In 1843, the Revised Statutes of the
Territory of Iowa implicitly recognized the ability to remove an elected
official from office. See Revised Statutes of the Territory of Iowa ch. 160,
§ 8 (1843) (“That there shall be elected annually, in each and every
organized county in this territory, at the general elections, one person to
be inspector of weights and measures . . . .); id. ch. 160, § 11 (“That
5“Legislative facts are ‘those which help the tribunal to determine the content of
law and policy and to exercise its judgment or discretion in determining what course of
action to take.’ ” State v. Henze, 356 N.W.2d 538, 540 n.1 (Iowa 1984) (en banc) (quoting
Kenneth Culp Davis, Judicial Notice, 55 Colum. L. Rev. 945, 952 (1955)). “[L]egislative
facts are not concerned with particular problems of individuals, but involve a
determination of what is in the best interests of the public generally.” McMurray v. City
Council, 642 N.W.2d 273, 277 (Iowa 2002).
39
whenever the inspector of weights and measures mentioned in this act,
shall resign or be removed from office . . . .” (Emphasis added.)).
Following statehood, the first Iowa Code was published in 1851.
Within Title IV, governing “elections, qualifications for office, contested
elections, vacancies, etc.,” Iowa Code Analysis (1851), the legislature
included a provision governing the removal of certain elected officials from
office. Iowa Code § 397 (1851). The legislature provided, “All county
officers, including justices of the peace, may be charged, tried, and
removed from office for official misdemeanors in the manner and for the
causing [causes] following: . . . For wilful mal-administration in office.” Id.
(first alteration in original). The legislature later extended the statute to
“[a]ll county, township, city and town officers, elected or appointed.” Iowa
Code § 1251 (1897). As well, the legislature announced that such officers
may be removed for “wilful misconduct or maladministration in office.” Id.
§ 1251(7).
In 1909, the legislature created a comprehensive removal framework
for elected officials. 1909 Iowa Acts ch. 78 (codified at Iowa Code §§ 1258-
c to 1258-k (Supp. 1913)). The Act specifically vested the courts with the
authority to remove “[a]ny county attorney, sheriff, mayor, police officer,
marshal or constable . . . [f]or wilful misconduct or maladministration in
office.” Id. ch. 78, § 1. In 1924, the legislature again broadened the
provision, giving the courts the authority to remove “[a]ny appointive or
elective officer, except such as may be removed only by impeachment,
holding any public office in the state or in any division or municipality
thereof . . . [f]or wilful misconduct or maladministration in office.” Iowa
Code § 1091(2) (1924).
40
Since 1924, the provision has remained virtually unchanged,
although it has been renumbered several times. Today, the provision is
codified at section 66.1A and reads as follows:
Any appointive or elective officer, except such as may be
removed only by impeachment, holding any public office in
the state or in any division or municipality thereof, may be
removed from office by the district court for any of the
following reasons:
1. For willful or habitual neglect or refusal to perform
the duties of the office.
2. For willful misconduct or maladministration in
office.
3. For corruption.
4. For extortion.
5. Upon conviction of a felony.
6. For intoxication, or upon conviction of being
intoxicated.
7. Upon conviction of violating the provisions of
chapter 68A.
Iowa Code § 66.1A (2015).
In sum, since Iowa’s inception, our legislature has seen fit to
supplement its election laws with corresponding measures to remove
elected officials for certain types of misconduct. Contrary to the plurality’s
premise that the judiciary may not “impos[e] standards of conduct on
elected officials,” the legislature has always tasked the courts with
removing officials whose conduct demonstrates their disqualification for
office. Indeed, for the entirety of Iowa’s history, our legislature has
instructed that elected officials assume their offices subject to a number
of qualifications, including the condition they refrain from willful
misconduct and maladministration in office.
41
B. Precedent.
1. Standard for removal. Despite section 66.1A’s long history, we
have scarcely been called to interpret its directives. The most
comprehensive analysis of the statute and its purposes comes from three
cases decided over a century ago in 1910. First, in State ex rel. v. Meek,
citizens brought suit to remove the treasurer of Van Buren County,
arguing he collected taxes for a number of days beyond the deadline
without imposing the statutory late fees. 148 Iowa 671, 672, 127 N.W.
1023, 1024 (1910). When the treasurer at trial admitted he indeed
collected such taxes, the court “excluded all evidence tending to show good
faith and absence of evil motive.” Id. On appeal, we considered “whether
the acts thus freely admitted constitute ‘willful misconduct in office’ within
the meaning of the statute.” Id. at 673, 127 N.W. at 1024.
After surveying a number of foreign interpretations of “willful,” both
in the criminal and official misconduct contexts, we concluded “when
willfulness is charged as a ground for removing an officer from his office,
his good faith and innocence of intentional wrong is a question upon which
he is entitled to be heard in evidence.” Id. at 679, 127 N.W. at 1026.
Further, we explained “the primary purpose of the statute is the protection
of public interests,” and “those interests are not imperiled by acts of a
trifling or unimportant character occasioning no injury.” Id. at 680, 127
N.W. at 1026. Indeed, “[s]uch peril only arises when [the officer’s]
administration of the office is marked by such grave misconduct or such
flagrant incompetency as demonstrates his unfitness for the position.” Id.
“The very object of this statute is to rid the community of a corrupt,
incapable, or unworthy official.” Id. (quoting Welsh, 109 Iowa 21, 79 N.W.
370). The legislature did not intend to remove officers for “technical
violations against which an ordinary civil action in damages affords a
42
complete remedy.” Id. at 682, 127 N.W. at 1027. Rather, “[t]he essential
inquiry is whether the record shows the appellant conclusively and as a
matter of law guilty of such willful misconduct in office that public
interests require his removal.” Id. at 684, 127 N.W. at 1027–28.
Second, in Henderson, we placed the removal statute in context with
the legislature’s authority to prescribe qualifications. 145 Iowa at 662–65,
124 N.W. at 769–70. In Henderson, the state sought to remove the mayor
of the City of Marengo for intoxication. Id. at 658, 124 N.W. at 768. We
explained, “[T]he act in question is not merely penal. The grounds of
removal go to the question of qualification as such qualification shall be
indicated by the specified acts of misconduct.” Id. at 662, 124 N.W.2d at
769. We also explained that although the electors may have found the
mayor “to be a man of strong personality and of many commendable
qualities[,] . . . the power of selection of the majority in such a case is not
absolute. It is subject to the power of the Legislature to prescribe
qualifications.” Id. at 665, 124 N.W. at 770.
Finally, in State ex rel. Gebrink v. Hospers, we stressed the severity
of removing an elected official from office. 147 Iowa 712, 714, 126 N.W.
818, 819 (1910). In Hospers, citizens brought suit to remove a county
attorney after a grand jury declined to return an indictment against a
corporation that had allegedly engaged in price discrimination. Id. at 713,
126 N.W. at 819. Although the citizens were frustrated by the lack of
criminal consequences, we explained a prosecutor has
[a] certain degree of discretion in these respects . . . and
unless he abuses it or there is a clear showing of corruption,
or negligence, or incompetence in the administration of his
office, he is not amenable to proceedings for his removal.
Id. at 714, 126 N.W. at 819. Significantly, we explained removing an
official “is a very drastic” remedy, as the effect is “not only to deprive an
43
individual of an office to which he has been regularly chosen, but also to
deprive the people of the services of the man whom they have selected for
the position.” Id. Invocation of the statute “should be exercised only in
cases of official wrongdoing established by clear and satisfactory
evidence.” Id. However, we also held that the unsuccessful citizens should
not be assessed the costs of the proceedings. Id. at 715, 126 N.W. at 819.
In bringing the suit, the citizens “speak for the public and the law, and the
courts take cognizance of their complaints not to remedy their private
wrongs, but to conserve public interests.” Id.
2. Instances of willful misconduct. Following the 1910 cases, we
repeatedly affirmed that officers shall not be removed unless the alleged
misconduct was committed willfully. See State ex rel. Fletcher v. Naumann,
213 Iowa 418, 427, 239 N.W. 93, 97 (1931) (“[T]here was no showing that
Naumann acted willfully, or that he did anything that would make it
necessary . . . to ‘rid the community of a corrupt, incapable, and unworthy
official[].’ ”) (quoting Meek, 148 Iowa at 680, 127 N.W. at 1026)); State ex
rel. Cash v. Canning, 206 Iowa 1349, 1353, 221 N.W. 923, 924–25 (1928)
(“There can be no condonment of willful misconduct or corruption in office,
even though the amount involved may appear to be inconsequential and
trivial. Peculation, as a badge of misconduct and corruption, is not to be
measured by its extent or grossness. There must, however, be a willful
intent to do wrong or a maladministration of office to warrant a summary
removal of a public officer.”); State ex rel. Cochran v. Zeigler, 199 Iowa 392,
396, 202 N.W. 94, 95 (1925) (“The word ‘willful,’ as used in this connection
. . . impl[ies] knowledge on the part of the officer, together with a purpose
to do wrong. . . . Not every technical violation of a statute or of official duty
will, however, justify the summary removal of the officer.” (Citation
omitted.)).
44
Yet, in State ex rel. Duckworth v. Smith, we explained the willfulness
principles announced in Naumann, Canning, Zeigler, and Meek do not
“require as an essential element of willfulness a greater scienter in the
doing of an act than the character of the act permits.” 219 Iowa 5, 7, 257
N.W. 181, 182 (1934). In Smith, a county treasurer took public funds for
his private use more than twenty times, yet claimed the takings were not
willful as contemplated by the removal statute. Id. at 6–7, 257 N.W. at
181–82. The treasurer believed the county owed him additional salary
payments and some of the withdrawals occurred during periods where the
treasurer believed he was owed payments. Id. at 8, 257 N.W. at 182. We
held it to be “beside the point” that “the county may have owed him salary
. . . for the salary of the treasurer must be paid on warrants drawn by the
county auditor. The treasurer cannot help himself to public funds even in
the payment of his salary.” Id. Indeed, “[w]e [were] at a loss to discover
any worthy motive which could have prompted him to take public money
for his private use.” Id. at 7, 257 N.W. at 182. After looking at “[t]he whole
picture,” we determined the county treasurer’s conduct “present[ed] a case
in which ‘willfulness’ must be found to be present.” Id. at 7–8, 257 N.W.
at 182.
In 1974, we concluded removal was justified for three county
supervisors. State v. Bartz, 224 N.W.2d 632, 639 (Iowa 1974). In Bartz,
the supervisors (1) accepted gifts and other perks from persons who
regularly contracted with the county, (2) maintained loosely managed
slush funds instead of depositing all funds with the county treasurer, and
(3) submitted mileage claims in significant excess of what was actually
driven. Id. at 635, 638–39. We explained the State must provide “clear,
satisfactory and convincing” evidence that the supervisors committed
misconduct “willfully and with an evil purpose.” Id. at 638. Although the
45
trial court concluded the supervisors acted “without evil or corrupt motives
. . . we reach[ed] an opposite conclusion.” Id. Our de novo review revealed
evidence that proved the supervisors’ conduct “fell well below the
standards of conduct expected of public officials.” Id.
Finally, in 1978, we removed a sheriff from office for willful
misconduct and maladministration in office. Callaway, 268 N.W.2d at
849. In Callaway, the state petitioned to remove the Hardin County Sheriff
based on five incidents in which he brutalized or otherwise used excessive
force against inmates and citizens. Id. at 842–46. The sheriff admitted to
making a “mistake” in two such incidents, but “defend[ed] his use of force
in the other incidents.” Id. at 847. Thus, the sheriff subjectively believed
his force was necessary and not contrary to his duties. We found the
sheriff’s justification defense “depend[ed] in part upon his credibility,” but
“also depend[ed] on distorting the standard governing a law enforcement
officer’s right to use force to make an arrest and restrain a prisoner.” Id.
We not only found the state’s witnesses to be more credible, but also
determined the sheriff “plainly breached” officer force standards “in the
five principle incidents relied on by the State.” Id. Furthermore, we found
the sheriff’s subjective intent “distort[ed] the standard governing a law
enforcement officer’s right to use force to make an arrest and restrain a
prisoner.” Id. at 847. We explained,
This is not a case of a momentary lapse or of a few mistakes
in judgment in routine matters. It is a case of repeated,
deliberate brutality to prisoners. The conduct shown here is
antithetical to the professionalism which the public requires
and generally receives from law enforcement officers. In fact,
it contradicts the standards which peace officers have
established for themselves.
Id. at 848. Thus, because “[t]he authorities uniformly agree[d] that such
misconduct by a law enforcement officer is a ground for ouster from office,”
46
the state met its burden in proving the sheriff “was guilty of willful
misconduct in office.” Id. at 847–48.
Against this backdrop of legislative intent and precedent, we proceed
to consider the nature of sexual harassment and whether it falls within
the types of misconduct contemplated by section 66.1A.
IV. Sexual Harassment.
“Without question, when a supervisor sexually harasses a
subordinate because of the subordinate’s sex, that supervisor
‘discriminate[s]’ on the basis of sex.” Meritor Sav. Bank, FSB v. Vinson,
477 U.S. 57, 64, 106 S. Ct. 2399, 2404 (1986) (alteration in original).
When Congress enacted Title VII of the Civil Rights Act of 1964, it intended
“to strike at the entire spectrum of disparate treatment of men and
women.” Id. (quoting City of L.A. Dep’t of Water & Power v. Manhart, 435
U.S. 702, 707 n.13, 98 S. Ct. 1370, 1375 n.13 (1978)). Sex discrimination
has always encompassed more than a threat of economic loss or other
tangible adverse employment action. Title VII—and the Iowa Civil Rights
Act (ICRA)—“afford[] employees the right to work in an environment free
from discriminatory intimidation, ridicule, and insult.” Id. at 65, 106 S.
Ct. at 2405.
“ ‘A hostile work environment is a cumulative phenomenon,’ and a
series of individual episodes of inappropriate behavior eventually can
amount to a hostile environment.” Simon Seeding & Sod, Inc. v. Dubuque
Human Rights Comm’n, 895 N.W.2d 446, 470 (Iowa 2017) (quoting Alvarez
v. Des Moines Bolt Supply, Inc., 626 F.3d 410, 421 (8th Cir. 2010)).
Although “[a] few isolated or sporadic [comments] over a long period of
time,” do not rise to the level of actionable discrimination, “repeated
harassing remarks may be sufficient to establish hostile working
environment.” Id.
47
The effects of hostile-work-environment discrimination are known
and severe. Women who are sexually harassed “feel humiliated, degraded,
ashamed, embarrassed, and cheap, as well as angry.” Catharine A.
MacKinnon, Sexual Harassment of Working Women 47 (1979) [hereinafter
MacKinnon]. Women do not “want to be sexually harassed at work. Nor
do they, as a rule, find it flattering.” Id. “Women’s confidence in their job
performance is often totally shattered,” and “[t]hey are left wondering if the
praise they received prior to the sexual incident was conditioned by the
man’s perception of the sexual potential in the relationship.” Id. at 51.
Importantly, “Title VII comes into play before the harassing conduct leads
to a nervous breakdown.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 22, 114
S. Ct. 367, 370 (1993). Harassment need not “seriously affect employees’
psychological well-being” in order to “detract from employees’ job
performance, discourage employees from remaining on the job, or keep
them from advancing in their careers.” Id. at 22, 114 S. Ct. at 371.
Over time, employers have gleaned that it is no longer permissible
to enunciate blatant prejudices in the workplace. However, “these feelings
remain under the surface, often taking the form of humor.” MacKinnon,
at 52 (quoting Eleanor L. Zuckerman, Masculinity and the Changing
Woman, in E. L. Zuckerman, ed., Women and Men: Roles, Attitudes and
Power Relationships 65 (1975)). “Humor . . . has been a major form of”
sexual harassment’s trivialization, and is “a major means through which
its invisibility has been enforced.” Id. Indeed, framing derogatory and
discriminatory comments as “jokes” permits courts to characterize the
misconduct as merely “crude,” rather than discriminatory. Men are just
joking, and women should lighten up.
Sexual harassment of an employee and, therefore, discrimination
against an employee on the basis of sex, is no mere “technical violation[].”
48
Meek, 148 Iowa at 682, 127 N.W. at 1027. Consistent state and
congressional efforts to eradicate and punish sexual harassment establish
society’s firm disavowal of this type of misconduct in the workplace. In
1991, Congress amended Title VII to allow successful sexual harassment
plaintiffs to recover punitive damages. Civil Rights Act of 1991, Pub. L.
No. 102–166, § 1, 105 Stat. 1071, 1071 (1991) (finding “additional
remedies under Federal law are needed to deter unlawful harassment and
intentional discrimination in the workplace”). In 1992, two years after this
court recognized a sexual harassment cause of action under the Iowa Civil
Rights Act, see Lynch v. City of Des Moines, 454 N.W.2d 827, 833 (Iowa
1990), the Iowa legislature specifically acted to prohibit the sexual
harassment of state employees. See 1992 Iowa Acts ch. 1086, § 2 (codified
at Iowa Code § 2.11 (1993)) (commanding each house of the general
assembly to implement sexual harassment training and grievance
procedures); id. § 3 (codified at Iowa Code § 19B.12) (expressly barring
state employees from engaging in quid pro quo and hostile work
environment harassment).
Today, lawmakers continue to emphasize that sexual misconduct
has no place in government offices. In October and November of 2017,
both the United States House of Representatives and Senate introduced
measures to combat sexual harassment in government offices.
Congressional Sexual Harassment Training Act, H.R. 4155, 115th
Congress (2017); STOP Sexual Harassment Resolution, S. Res. 323, 115th
Congress (2017). Across the country, state legislatures have continued to
adopt resolutions and enact policies that target and punish harassment
49
in public offices. 6 In the private sector, professional associations across
all disciplines have proffered “zero tolerance” policies aimed at eradicating
sexual harassment in their respective fields. 7
6See, e.g., S.R. 51, Reg. Sess. 2018 (Ala. 2018) (adopting a legislative policy on
sexual harassment); H.R. 18–1005, Seventy-first Gen. Assemb., 2d Reg. Sess. (Colo.
2018) (expelling a state representative for violating legislative sexual harassment policy);
H.R. 21, 149th Gen. Assemb. (Del. 2018) (adopting a legislative policy on sexual
harassment); H.B. 973, 2017–2018 Reg. Sess. (Ga. 2018) (extending legislative sexual
harassment policy to registered lobbyists); H.R. 687, 100th Gen. Assemb. (Ill. 2017)
(creating a sexual harassment task force); H.B. 1309, 120th Gen. Assemb., 2d Reg. Sess.
(Ind. 2018) (requiring annual sexual harassment training for members of the general
assembly); H.B. 524, 2018 Reg. Sess. (La. 2018) (enacting sexual harassment policy for
all public officers and employees); H. 3983, 190th Gen. Ct. (Mass. 2017) (ordering
comprehensive review of all House of Representatives sexual harassment policies); S.
2262, 190th Gen. Ct. (Mass. 2017) (ordering comprehensive review of all Senate sexual
harassment policies); H.R. 7678, 2018 Gen. Assemb. (R.I. 2018) (creating a special
legislative commission to study sexual harassment); H.R. 5, 2017–2018 Leg. Sess. (Vt.
2017) (establishing a sexual harassment prevention panel to review complaints against
members of the House); H.B. 371, 2018 Reg. Sess. (Va. 2018) (requiring all legislative
branch employees to complete sexual harassment training every two years); H.B. 2759,
65th Leg., 2018 Reg. Sess. (Wash. 2018) (establishing the Washington state women’s
commission and ordering the review of sexual harassment policies).
7See, e.g., ACS Governing Documents, at 51 (Am. Chem. Soc’y 2018) (“Harassment
of any kind, including but not limited to unwelcome sexual advances, requests for sexual
favors, and other verbal or physical harassment will not be tolerated.”); Appendix 3.2:
Policy on Prof’l Conduct & Prohibition Against Harassment (Am. Dental Ass’n) (“The ADA
absolutely prohibits sexual harassment . . . .”); Code of Prof’l Conduct r. 1.400.010 (Am.
Inst. of Certified Pub. Accountants 2016) (“A member would be presumed to have
committed an act discreditable to the profession . . . if a final determination . . . is made
by a court . . . that a member has violated any antidiscrimination laws . . . including those
related to sexual and other forms of harassment.”); Am. Med. Ass’n Code of Med. Ethics
Op. 9.1.3 (“Sexual harassment in the practice of medicine is unethical. . . . Physicians
should promote and adhere to strict sexual harassment policies in medical workplaces.”);
ANA Position Statement: Sexual Harassment (Am. Nurses Ass’n 1993) (“ANA believes that
nurses and students of nursing have a right to and responsibility for a workplace free of
sexual harassment.”); Code of Ethics Canon 8 (Am. Soc’y of Civil Eng’rs 2017) (“Engineers
shall not engage in discrimination or harassment in connection with their professional
activities.”); Code of Ethics Statement (Event Serv. Prof’ls Assoc.) (“We will not engage in
or condone any form of harassment or discrimination.”); IEEE Polices § 9.26 (Inst. of Elec.
& Elecs. Eng’rs 2018) (prohibiting “[d]iscrimination, [h]arassment and [b]ullying against
any person for any reason, for example, because of . . . gender”); Model Rules of Prof’l
Conduct r. 8.4(g) (Am. Bar Ass’n 2016) (“It is professional misconduct for a lawyer to . . .
engage in conduct that the lawyer knows or reasonably should know is harassment or
discrimination on the basis of . . . sex . . . .”); Code of Conduct & Sexual Harassment
Policy (Nat’l Ass’n of Realtors) (“The National Association fully supports the rights and
opportunities of all its . . . members and employees to work in an environment free from
discrimination and without subjugation to sexual harassment.”).
50
Employment discrimination statutes and private sexual harassment
policies represent a collective decision that all persons, regardless of age,
gender, race, religion, disability, etc., deserve to live dignified, autonomous
lives. Title VII and the ICRA are not workplace codes of conduct or matters
of “public opinion”—they are necessary vehicles for social and economic
mobility. When women are subjected to hostile work environments, they
are invariably forced to make a decision between unemployment and
intolerable working conditions. When women must move from one job to
the next, seeking a workplace ambiance free from discriminatory insult,
they are prevented from saving for retirement or their children’s college
educations. They have inconsistent access to healthcare for themselves
and their families. When women must continually start anew with new
companies, they are prevented from moving up the ranks and attaining
positions of authority. Beyond the dignitary harms suffered, when sexual
harassment is allowed to endure, women must work harder to stay afloat
while men grow and advance in status.
Sexual harassment was once a putative consequence of working
while female. However, legislative enactments, private measures, and
public discourse conclusively demonstrate that society has evolved.
Sexual misconduct in the workplace, especially in a government
workplace, is no longer tolerated. County employees, like all other
employees, have a statutory and constitutional right to be free from
discrimination. It is in the image of this clear, ubiquitous public interest
that we ground our understanding of misconduct and maladministration
in office. Yet, in the end, it is left to the courts to recognize sexual
harassment and apply the law to remove it in all aspects of life.
51
V. Application.
A. Misconduct. The unvarnished record reveals the depth of the
abhorrent conduct at the center of this case. This conduct occurred in the
presence of those who worked in the office of a public official and those
who entered the office for business.
At trial, five people testified to observing Watkins in the office in his
underwear on different occasions. These people not only included Jasmin
Wallingford, the office legal assistant, but also two women who cleaned the
office and a client and his wife who had stopped into the office one morning
to pick up documents. The two women who cleaned the office were Amish
and had once confronted Watkins about being uncomfortable with seeing
him in his underwear in the office.
Wallingford, who was twenty-years-old, was the target of most of the
conduct at issue. Watkins once showed Wallingford a video he had
recorded of his wife squirting breastmilk in Wallingford’s car. On another
occasion, he showed Wallingford a photograph of his wife’s vagina, as well
as a photograph of his wife naked from the waist down. Watkins also kept
naked photographs of his wife on his desk computer and would look at
them during office hours. Virginia Barchman, the assistant county
attorney, entered his office on one occasion to speak with him and
observed one of the photographs on his computer screen.
Watkins inquired into Wallingford’s doctor appointments and asked
her on three or four occasions if “her vagina was still broke.” Watkins told
Wallingford, during work, that her “boobs [were] distracting him” and that
she “should wear that shirt out” if she “ever went clubbing.” Watkins
complained to Wallingford that his wife never wanted to have sex and that
he “just wished that he had a wife that had sex with him all the time.”
Watkins informed Wallingford that he kept naked pictures of former
52
girlfriends on his phone and enjoyed looking at them. Watkins made a
sexually driven reference about a floor cleaner called “Bona” in the
presence of Wallingford and the young Amish women who cleaned the
office.
Watkins also used sexually graphic and demeaning rhetoric in the
workplace when discussing other women. On one occasion, after Watkins
made an inappropriate comment at a birthday party, he told Wallingford
the following Monday during work that he needed to see if this courthouse
employee “wore a padded bra or if her boobs were really that big.” On
another occasion, Watkins announced that a local female attorney with
initials “T.Q.” should be referred to as “T. Queef,” which refers to a term
that describes the emission of air from the vagina.
Just as all of this evidence was necessarily filtered through the lens
of those who witnessed it, it again becomes filtered through the lens of
those who judge it. For the plurality, its perspective is not so much
affected by what it saw in the evidence, as by what it saw as absent from
the evidence. It saw crudities, but it also saw a workplace environment in
which Wallingford’s job was not conditioned on fulfilling Watkins’s sexual
gratification. It saw the vulgarities in Watkins’s conduct, but it also saw
an absence of quid pro quo sexual harassment. It saw vulgarities, but
looked and could not find an employer who misused “his office or his
position of power or authority to obtain anything from Wallingford.”
Furthermore, it saw the workplace rhetoric by Watkins as “insensitive,”
but rhetoric that “did not concern Wallingford herself.” It saw Watkins as
“insensitive,” but saw Wallingford as having more reasons for disliking her
workplace environment than just the rhetoric and conduct engaged in by
Watkins.
53
The filter used by the plurality narrows the definition of sexual
harassment, and in turn, misconduct, and fails to understand sexual
harassment from the perspective of the victim. What the plurality does
not see through its lens is that the misuse of a position of power or
authority does not require quid pro quo conduct. Power and authority are
equally exploited when they are used to create a workplace environment
riddled with discriminatory insults. What, if not power, could embolden
an employer to entirely disregard fundamental boundaries and
discriminate on the basis of sex with no consideration for the
consequences?
Sexual harassment in the workplace will not be eliminated until it
is first understood for what it is. It is not so much “an issue of right and
wrong [as] an issue of power.” MacKinnon, at 173. The fundamental
problem is not the content of workplace conversation, but how sexually
explicit rhetoric is used in the workplace by those in power at the expense
of others. Id. An employer who “[seeks] to misuse his office or his position
of power or authority to obtain” something from an employee certainly
harms the employee, but an employee is equally aggrieved by a workplace
dominated by derogatory slights.
Likewise, a lens that sees sexual comments or “jokes” not specifically
directed at the employee herself as “insensitive” but tolerable trivializes the
lived experiences of those who have been forced to withstand them.
Indeed, a finding that Watkins’s comments “did not concern Wallingford
herself” rests on a defunct and antiquated view of hostile work
environments. Watkins was speaking about women. He was commenting
on the bodies of women. He was objectifying and sexualizing women.
Wallingford was required to endure a slew of degradations directed solely
at women—a class of which she is a member.
54
Lastly, Wallingford may well have had other reasons for disliking her
work environment on top of Watkins’s harassment, but those reasons do
not negate the severity of Watkins’s behavior. Employees need not refrain
from complaining about other frustrating behaviors in order for a court to
take a sexual harassment complaint seriously.
In the end, Watkins’s misconduct amounted to a hostile work
environment when viewed through a lens that sees the complete picture.
He consistently, over the course of months, made unwelcome and sexually
charged comments to Wallingford and in her presence and engaged in
misconduct in office.
B. Willful. The state of mind or willfulness behind conduct can be
difficult to see. As with defining misconduct, it often depends on a
measured view of all the facts and circumstances surrounding the
conduct. See Nelson v. James H. Knight DDS, P.C., 834 N.W.2d 64, 79–80
(Iowa 2013) (Cady, C.J., concurring specially) (finding the specific,
personal relationship between an employer and employee animated an
adverse employment action, rather than actionable discrimination).
At the outset, no evidence exists in the record to support Watkins’s
belief that his rhetoric and conduct were welcome or appropriate in the
workplace. Wallingford never commented on Watkins’s anatomy or made
unsolicited, sexually charged comments. Although Watkins characterizes
his law office as one of joking and familiarity, Wallingford’s contribution to
that atmosphere was vastly different and consisted of such conduct as
wearing a funny wig on April Fools’ Day and once taping an air horn to
Watkins’s chair. Accordingly, any view that Watkins’ comments were part
of an established atmosphere has no support in the record. Likewise, the
complete and utter one-sidedness of the degrading rhetoric erodes any
inference that Watkins’s harassment was not willful.
55
Overall, the plurality relies on various common responses to claims
of sexual harassment in the workplace to support its finding that the
conduct and rhetoric of Watkins was not willful. It observed that Watkins’s
conduct did not constitute a crime. It could not find any caselaw that
found willful misconduct under similar facts. It saw the conduct engaged
in by Watkins to be his personality and not directed at the attributes of
Wallingford as a person. It saw a workplace that allowed Watkins to feel
comfortable to engage in such conduct and a workplace in which
Wallingford felt comfortable to engage in nonsexual humor from time to
time.
The lens used to reach the plurality’s decision did not observe or
factor in the powerful dynamics of employer authority and control over a
subordinate in the workplace. It did not see that Wallingford hoped to be
a lawyer or her hope that a position in a law office and a positive
association with a county attorney would help advance her goal of
attending law school. It did not see how Watkins’s clout informed
Wallingford’s desire to maintain a friendship with Watkins and his wife, as
a poor relationship could have lasting consequences for her professional
career in a county with just over 7000 people. It did not see how the
dynamics of subordinates can minimize employer misconduct and
perpetuate sexual harassment in the workplace.
Watkins concedes he did not misspeak, nor was he naïve to the
sexual connotations of his comments. Indeed, testimony demonstrates he
was aware of the inappropriate nature of his comments to employees.
Watkins’ former child-care worker, Tayt Waibel, testified she once had
missed a phone call from Watkins while she was in the shower. She
returned his call and explained why she did not answer. In response,
Watkins told Waibel she should have FaceTimed him while she was in the
56
shower. Watkins then stated, “[T]his is probably why I’m in trouble for
sexual harassment.”
In Callaway, we found the sheriff’s view that his force was justified
depend[ed] in part upon his credibility,” but “also depend[ed] on distorting
the standard governing a law enforcement officer’s right to use force to
make an arrest and restrain a prisoner.” 268 N.W.2d at 847. Here,
Watkins’s position similarly depends in part on his credibility. Watkins’s
admission to Waibel undermines his testimony that his behavior was
innocent and reasonable.
Moreover, in Callaway, we looked to several sources governing an
officer[’]s duty to refrain from excessive force. Id. at 847–48. We noted the
common law standard found in a prominent legal encyclopedia, see 6A
C.J.S. Arrest § 49, the statutory standard, see Iowa Code § 755.2 (1975),
and the Law Enforcement Code of Ethics, see Louis B. Schwartz & Stephen
R. Goldstein, Law Enforcement Handbook for Police 48 (1970). Callaway,
268 N.W.2d at 847–48. We charged the sheriff with knowledge of these
standards and determined his consistent deviation from them amounted
to a willful abdication of his duties as a law enforcement officer. Id. Here,
Watkins is charged with being aware of the standards governing his
conduct as a public official and employer. The rules of professional
conduct expressly prohibit attorneys from engaging in sexual harassment.
Iowa R. Prof’l Conduct 32:8.4(g). The ICRA and Title VII prevent all
employers, including state employers, from engaging in hostile work
environment harassment. Iowa Code § 216.6(1)(a) (2015); 42 U.S.C.
§ 2000e-2(a)(1) (2012). As in Callaway, Watkins is charged with
knowledge of these standards, and his consistent deviation from them is
evidence of a willful abdication of his duties as an officer and employer.
57
Watkins repeatedly, and knowingly, made sexually charged
comments to his employees and created a hostile work environment.
Despite Watkins’s consistent and intentional deviation from the governing
standards, the plurality nevertheless concludes he did not act with an “evil
purpose” when harassing Wallingford.
What benign intent is consistent with harassment? The plurality
requires a “greater scienter in the doing of an act than the character of the
act permits.” Smith, 219 Iowa at 7, 257 N.W. at 182. Harassment, by its
nature, is not done benevolently or innocuously. It requires more than an
occasional aberration or momentary lapse in judgment. Harassment
exists when an employer repeatedly, over the course of time, acts with
such disregard that it alters the conditions of employment.
When Watkins told Wallingford that her breasts were distracting
him, the plurality saw an innocent intention. When Watkins repeatedly
entered the workplace in his underwear, when his bedroom and a restroom
were located upstairs, the plurality saw an “unstructured environment.”
When Watkins told Wallingford, during work hours, that he wondered
whether the courthouse clerk’s breasts “were really that big,” the plurality
saw a plausible blunder. When the character of Watkins’s misconduct
over the entire term of Wallingford’s employment “presents a case in which
‘willfulness’ must be found to be present,” the plurality ultimately found
no knowledge of wrongdoing. Smith, 219 Iowa at 7–8, 257 N.W. at 182.
It is, of course, not always easy to step outside of oneself and see
bias when none was intended or see injustice when the opposite was
envisioned. But such is the nature of an evolving society in which
standards of conduct once decreed as “natural and reasonable” are now
understood to be insidious and arbitrary. Carragher, 149 Iowa at 229, 128
N.W. at 354. There are times when such a failure of perspective may be
58
viewed with generosity in hindsight, but today’s opinion is not such an
instance.
The recognition and prohibition of sexual harassment is far from a
recent revelation. It has long been understood that making unsolicited
comments about the breasts of an employee is illegal and degrading. That
showing a photograph of your naked wife and of her vagina to an employee
is unlawful and demeaning. Today’s decision is intimately tied to a bygone
era of law that shielded men who knew better, at the expense of their
female employees, who were required to abandon their jobs or forced to
accept harassment as a condition of employment.
While the plurality sees itself as upholding the integrity of elections,
such a view weakens the checks and balances of government. The very
purpose of the removal statute is to undo an election. Moreover, the
opinion reveals the enduring vestiges of de jure discrimination. We were
able to see with clarity in 1978 that no sheriff could possibly believe that
brutalizing a prisoner is permissible, yet still cannot see with clarity today
that no employer could possibly believe that creating a workplace
atmosphere defined by degrading women is permissible. One view is not
less serious than the other. Both are but different forms of willful
misconduct. It is time for but one view to exist. The prolonged period of
societal disinterest in the plight of working women must no longer obscure
how inappropriate comments about one woman unquestionably concerns
all women in the workplace.
Watkins’s conduct was more than “inappropriate” and
“disrespectful”—it was discriminatory. He deliberately subjected
Wallingford to a barrage of indignities directed solely at women. An officer
who intentionally discriminates on the basis of sex commits grave
misconduct in office and is removable under section 661.A.
Hecht, J., joins this dissent.
59
#17–0183, State v. Watkins
WIGGINS, Justice (dissenting).
A majority of the members of this court holds the allegations of
sexual harassment do not amount to “willful misconduct or
maladministration in office” warranting removal. I disagree with this
conclusion and must dissent. I would find the State provided sufficient
evidence to show willful misconduct on the part of Abraham Watkins. My
starting point is the statute.
I. Iowa Code Section 66.1A(2).
This case turns on the proper interpretation of Iowa Code section
66.1A(2). This section provides,
Any appointive or elective officer, except such as may be
removed only by impeachment, holding any public office in
the state or in any division or municipality thereof, may be
removed from office by the district court for any of the
following reasons:
....
2. For willful misconduct or maladministration in
office.
Iowa Code § 66.1A(2) (2015).
We defined the phrase “willful misconduct or maladministration in
office” in State v. Callaway, 268 N.W.2d 841, 842 (Iowa 1978). In defining
the phrase, we said,
In order to establish “willful misconduct” as a ground
for removal, it is necessary to show a breach of duty
committed knowingly and with a purpose to do wrong. This
requires proof of grave misconduct. Of course, such
misconduct would also be “maladministration in office” within
the meaning of [section 66.1A(2)].
Id. (citations omitted).
 60
II. Types of Sexual Harassment: Quid Pro Quo and Hostile Work
Environment.
Our laws prohibit sexual discrimination. E.g., Iowa Code
§ 216.6(1)(a). The plurality correctly points out the law prohibits two types
of sexual discrimination in the form of sexual harassment—quid pro quo
and hostile work environment. See McElroy v. State, 637 N.W.2d 488, 499
(Iowa 2001); see also Vivian v. Madison, 601 N.W.2d 872, 873 (Iowa 1999)
(stating the legislature modeled the Iowa Civil Rights Act after Title VII of
the United States Civil Rights Act); Lynch v. City of Des Moines, 454 N.W.2d
827, 833 (Iowa 1990) (holding that sexually hostile work environment is
illegal sex discrimination pursuant to the Iowa Civil Rights Act). The
former is a “type of harassment [that] is linked to the grant or denial of
tangible aspects of employment.” McElroy, 637 N.W.2d at 499. The latter
involves “sexual harassment [that] is so ‘severe or pervasive [as] “to alter
the conditions of [the victim’s] employment and create an abusive working
environment.” ’ ” Id. (third alteration in original) (quoting Meritor Sav.
Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S. Ct. 2399, 2405 (1986)).
Although the plurality recognizes the two types of sexual
harassment, it downplays the detrimental effects of hostile work
environment. In fact, the plurality reasons the record does not show that
Watkins sought to misuse his authority as county attorney to obtain
sexual favors from Jasmin Wallingford or anyone else. Had Watkins
offered any one of these women advancement in return for sexual favors—
a classic quid pro quo situation, even if he made such an offer outside the
workplace—I am confident the plurality would decide this case differently.
Certainly, hostile work environment may be more subtle than quid pro
quo. Subtleness, however, does not necessarily minimize the inimical
61
impact of sexual harassment on victims. In other words, hostile work
environment is not a lesser form of sexual harassment.
We have stated, “A hostile work environment claim is premised on
the concept that sexual harassment can impact the conditions of
employment well beyond the denial or granting of economic or tangible
benefits.” Id. (emphasis added). Thus, quid pro quo involves a narrow
sliver of the types of employment conditions that sexual harassment
adversely affects. The plurality should not give more weight to this narrow
sliver by de-emphasizing the severity of other adverse alterations of
employment conditions, such as noncontractual consequences. “[W]hen
an employer creates a hostile work environment, employees are forced to
‘run a gauntlet of sexual abuse in return for the privilege of being allowed
to work and make a living . . . .’ ” Id. (second alteration in original)
(quoting Meritor Sav. Bank, 477 U.S. at 67, 106 S. Ct. at 2405). “[T]he
employee must endure an unreasonably offensive environment or quit
working.” Id. at 499–500.
I cannot stress enough that sexual harassment, in whatever form it
manifests, detrimentally affects victims. See Lucetta Pope, Everything You
Ever Wanted to Know About Sexual Harassment but Were Too Politically
Correct to Ask (or, the Use and Abuse of ‘But For’ Analysis in Sexual
Harassment Law Under Title VII), 30 Sw. U. L. Rev. 253, 259 (2001)
[hereinafter Pope] (“[D]ifferent forms of sexual harassment also produce
the same effect.”). Catharine A. MacKinnon, a prominent legal theorist,
traced the impact of sexual harassment. Catharine A. MacKinnon, Sexual
Harassment of Working Women: A Case of Sex Discrimination 47–55 (1979)
[hereinafter MacKinnon]. She stated, “Like women who are raped, sexually
harassed women feel humiliated, degraded, ashamed, embarrassed, and
cheap, as well as angry.” Id. at 47. She further asserted, “Faced with the
62
spectre of unemployment, discrimination in the job market, and a good
possibility of repeated incidents elsewhere, women usually try to endure.”
Id. at 52. However, “the costs of endurance can be very high, including
physical as well as psychological damage” from anxiety to all kinds of
nervous tics which are “the inevitable backlash of the human body in
response to intolerable stress.” Id. (quoting Special Disadvantages of
Women in Male-Dominated Work Settings 6, in Women in Blue-Collar,
Service and Clerical Occupantions: Hearings Before the Comm’n on
Human Rights of the City of N.Y. (1979) (testimony of Lin Farley)).
Sexual harassment, as a broad category including both quid pro quo
and hostile work environment, “has devastating effects on a woman’s
economic and employment opportunities” and “tends to be equally
disastrous to a woman’s physical health and psychological well-being.”
Jennifer L. Vinciguerra, Note, The Present State of Sexual Harassment Law:
Perpetuating Post Traumatic Stress Disorder in Sexually Harassed Women,
42 Clev. St. L. Rev. 301, 305–06 (1994) (footnotes omitted). In fact, “[p]ost
[t]raumatic [s]tress [d]isorder is a common result in women who have
suffered sexual harassment in the workplace.” Id. at 303 & n.18
(collecting cases).
Moreover, in Meritor Savings Bank, the United States Supreme Court
established that both types of sexual harassment—quid pro quo and
hostile work environment—are equally illegal and actionable under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a). See 477 U.S.
at 63–67, 106 S. Ct. at 2404–05. I do not believe quid pro quo is worse
than hostile work environment. Rather, both types of sexual harassment
are two sides of the same coin, 8 and the plurality should give each type its
8It should be noted that hostile work environment is “[l]ess clear[] and
undoubtedly more pervasive” than quid pro quo. MacKinnon, at 40.
63
due weight. See Pope, 30 Sw. U. L. Rev. at 258–59 (“[Q]uid pro quo and
hostile environment claims amount merely to alternative varieties . . . .
MacKinnon’s scheme of quid pro quo and hostile environment claims
followed the radical view that seemingly diverse forms of sexual
harassment spring from the same discriminatory intent.” (Footnote
omitted.)).
Hostile-work-environment claims may lead to the same result as
quid pro quo claims: the loss of a job. Specifically, a hostile work
environment affects an employee’s tangible job conditions when it results
in the employee’s constructive discharge. U.S. Equal Emp. Opportunity
Comm’n, N-915-050, Policy Guidance on Current Issues of Sexual
Harassment (1990), https://www.eeoc.gov/policy/docs/currentissues.html
(last modified June 21, 1999). Constructive discharge involves an
employee’s resignation because his or her working conditions have become
“so intolerable that a reasonable person would have felt compelled to
resign.” Pa. State Police v. Suders, 542 U.S. 129, 147, 124 S. Ct. 2342,
2354 (2004).
III. Willful Misconduct.
A. Misconduct. In another effort to lessen the magnitude of
Watkins’s willful misconduct, the plurality reasons a number of the
incidents and comments occurred outside of the workplace because
Wallingford was a close family friend who frequently engaged in social
activities with Watkins and his wife. Although not all interactions with
supervisors or coworkers far away from the water cooler may constitute
grounds for a sexual-harassment claim, employers may very well be liable
for sexual harassment outside of the workplace.
In Parrish, the United States District Court for the Southern District
of New York stated,
64
The court is aware of no settled law that . . . allow[s] a
harasser to pick and choose the venue for his assaults so as
to not account for those that occur physically outside the
workplace. The employment relationship cannot be so finely
and facilely parsed. It comprises multiple dimensions of time
and place that cannot be mechanically confined within the
precise clockwork and four walls of the office. The proper
focus of sexual harassment jurisprudence is not on any
particular point in time or coordinate location that rigidly
affixes the employment relationship, but on the manifest
conduct associated with it, on whether the employer has
created a hostile or abusive “work environment,” or a
“workplace” where sexual offenses occur and are sufficiently
severe or pervasive to alter the victim’s terms and conditions
of employment wherever the employment relationship
reasonably carries.
Parrish v. Sollecito, 249 F. Supp. 2d 342, 350–51 (S.D.N.Y. 2003).
The court acknowledged, “[A]s a practical matter[,] an employment
relationship and the employee’s corresponding status, while generally
commencing and grounded in what constitutes the office or plant, often
carries beyond the work station’s physical bounds and regular hours.” Id.
at 351. Moreover, the court noted employees travel on the road for
business trips and interact “at business-related meals and social events.”
Id. The court also noted “they may encounter one another in external
contexts not strictly stemming from or compelled by a business purpose.”
Id. (emphasis added). The real focus, the court reasoned, should be “the
degree to which, wherever a sexual assault occurs, its consequences may
be felt in the victim’s ‘workplace’ or ‘work environment’ and be brought to
bear on her terms and conditions of employment.” Id. I agree with the
Parrish court’s holistic approach.
In our modern times, technological forms of communication, such
as texting, take incidents at the water cooler to locations beyond the office.
Behaviors outside of the workplace may very well seep into the
environment at the workplace, contributing to a hostile work environment.
65
Wouldn’t a victim whose supervisor subjects her to harassment over the
weekend feel uncomfortable, anxious, and fearful of her supervisor when
she sees him back at work on Monday? I would answer yes.
Additionally, the plurality discounts the district court’s use of the
Iowa Rules of Professional Conduct. I again disagree. In deciding these
removal cases, we have used the Law Enforcement Code of Ethics to
support the removal of a sheriff from office. See Callaway, 268 N.W.2d at
848. Similarly, a breach of the Iowa Rules of Professional Conduct is
relevant in deciding whether Watkins engaged in misconduct.
Furthermore, I find Watkins violated the Restatement (Third) of the
Law Governing Lawyers § 56, at 416 (Am. Law Inst. 2000). It provides, “[A]
lawyer is subject to liability to a client or nonclient when a nonlawyer
would be in similar circumstances.” Id. Comment k to section 56 states,
“Employees of lawyers. A lawyer who hires a lawyer or nonlawyer as an
employee is subject to applicable law governing the employment
relationship, such as contract law, antidiscrimination legislation, unjust-
discharge law, and labor relations law.” Id. § 56 cmt. k, at 420–21.
To dilute even further the gravity of Watkins’s sexual harassment of
Wallingford, the plurality states that most of Watkins’s repugnant behavior
did not concern Wallingford herself. Yet the acts of spewing abhorrent
comments about other women and showing nude photographs of his wife
to Wallingford constitute sexual harassment targeted at Wallingford.
Would Wallingford feel any less of a victim simply because, after seeing an
overweight woman, Watkins told Wallingford, “Man, I wouldn’t want to see
her naked”? Or when Watkins commented to Wallingford about a
courthouse employee’s breasts and wondered if they were “really that big”?
Or when Watkins complained to Wallingford that his wife “never wanted
to have sex” and he wished his wife would want to have sex all the time?
66
Or when Watkins told Wallingford he was glad he kept nude photographs
of his previous girlfriends? Wallingford is no less a victim of sexual
harassment simply because the comments and photographs did not
concern herself in the most literal sense.
Let us not forget the comments concerning Wallingford herself. For
example, on three or four occasions, Watkins asked Wallingford if “her
vagina was still broke.”
Under this record, I would affirm the district court’s finding that
Watkins committed misconduct in office by establishing and maintaining
a hostile work environment.
B. Willful. Having determined Watkins committed misconduct, the
next question is whether Watkins committed the misconduct willfully. I
agree with Chief Justice Cady’s analysis of the willful nature of Watkins’s
misconduct.
We have defined “willful” in the context of section 66.1A(2) to be
misconduct “committed knowingly and with a purpose to do wrong.”
Callaway, 268 N.W.2d at 842. The repeated nature of the misconduct in
question here requires me to find that Watkins engaged in it knowingly.
Moreover, at least one comment provides direct evidence that
Watkins knew exactly what he was doing. When his former child-care
worker returned his missed phone call and explained she was in the
shower, Watkins told her that she should have FaceTimed him while in
the shower and then stated, “[T]his is probably why I’m in trouble for
sexual harassment.” This statement clearly shows Watkins had the
requisite knowledge that he was engaging in sexual harassment. Watkins
was not naïve. I doubt his other comments and actions of similar nature
came from mere thoughtlessness or even recklessness. See State ex rel.
Barker v. Meek, 148 Iowa 671, 674, 127 N.W. 1023, 1024 (1910) (“Conduct
67
may be voluntary, thoughtless, or even reckless, yet not necessarily
willful.”).
Additionally, I find Watkins engaged in such misconduct for a bad
or evil purpose. See State v. Roth, 162 Iowa 638, 651, 144 N.W. 339, 344
(1913) (stating “willfully” means the public official acted “intentionally,
deliberately, with a bad or evil purpose, contrary to known duty”). He did
not mean his misconduct or words to be funny. The nature of his
misconduct and words were hurtful to the recipients. It is okay to make
jokes but not about other people or their problems. Our law has no room
to accommodate Watkins’s willful, sexually degrading, demoralizing, and
reprehensible behavior.
I find no merit in the rationale the plurality uses to corroborate its
conclusion that Watkins did not act with a bad or evil purpose. What I
find particularly preposterous is the plurality’s unwarranted dilution of
Watkins’s harassing behavior because the environment included joking,
teasing, and sarcastic remarks. I am disinclined to believe any reasonable
person in a similar situation would find Watkins’s harassment even
remotely amusing. I am also disinclined to believe Watkins subjectively
believed he meant no harm. The reasoning the plurality uses to discount
Watkins’s misconduct sounds to me like the good-old-boy excuse. This
excuse has absolutely no place in our law.
I also find no merit in the plurality’s emphasis on Wallingford’s close
relationship with Watkins and his wife, as if to excuse Watkins’s behavior
simply because he was like family to Wallingford. The plurality’s
sympathetic portrayal of Watkins as a close family friend who meant no
harm is misplaced. A familial-like relationship should discourage rather
than foster a crude, demeaning, sexually charged work environment.
68
IV. Conclusion.
Based on the forgoing reasons, I would affirm the judgment of the
district court. We must stop making excuses. Enough is enough. Sexual
harassment is a real problem affecting real individuals. Moreover,
“[s]exual harassment perpetuates the interlocked structure by which
women have been kept sexually in thrall to men and at the bottom of the
labor market.” MacKinnon at 174.