Tommy Marion Copeland v. State of Iowa and Iowa Air National Guard ( 2022 )


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  •                     IN THE COURT OF APPEALS OF IOWA
    No. 21-0981
    Filed August 31, 2022
    TOMMY MARION COPELAND,
    Plaintiff-Appellant,
    vs.
    STATE OF IOWA and IOWA AIR NATIONAL GUARD,
    Defendant-Appellees.
    ________________________________________________________________
    Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.
    A veteran appeals the denial of his petition for writ of certiorari following his
    termination from the State of Iowa and Iowa Air National Guard. AFFIRMED.
    Charles Gribble, Christopher Stewart, and Haley Bryan (until withdrawal) of
    Gribble Boles Stewart & Witosky Law, Des Moines, for appellant.
    Thomas J. Miller, Attorney General, and Alan W. Nagel and Jeffery
    Peterzalek, Assistant Attorneys General, for appellees.
    Heard by Vaitheswaran, P.J., and Tabor and Badding, JJ.
    2
    BADDING, Judge.
    Army veteran Tommy Copeland appeals the denial of his petition for writ of
    certiorari following his termination as an air base security officer for the Iowa Air
    National Guard. Copeland claims that, as a veteran, he was entitled to a pre-
    termination hearing under the Iowa Veterans Preference Act in Iowa Code
    chapter 35C (2020). The district court rejected this claim, finding that Copeland
    was exempt from the protections of chapter 35C because he was in a “confidential
    relation to the appointing officer.” See Iowa Code § 35C.8. We agree.
    I.     Background Facts and Proceedings
    Copeland worked for the State of Iowa and Iowa Air National Guard as an
    air base security officer. In this role, Copeland was granted “police powers” on the
    base and was armed at all times.        He reported directly to a security forces
    manager. The security forces manager reported to a deputy adjutant general, who
    in turn reported to the adjutant general. Id. § 29A.16. The adjutant general is the
    director of the department of public defense in Iowa and charged with performing
    “all functions, responsibilities, powers, and duties concerning the military forces of
    the state of Iowa.” Id. § 29.1.
    Despite his status as a veteran, Copeland’s employment was terminated
    without a hearing in August 2020 when he failed a physical agility test for the fourth
    time. Copeland filed a petition for writ of certiorari. He argued that his termination
    was illegal because he was not “given a hearing alleging incompetence or
    misconduct or an opportunity to respond to any allegations” as required by Iowa
    Code section 35C.6.      In resistance to Copeland’s petition, the State and Air
    National Guard did not dispute Copeland’s status as a veteran. Instead, they
    3
    argued the Veterans Preference Act did not apply to Copeland because he held a
    “confidential relation to the appointing officer” under the exception in section 35C.8.
    The district court agreed and denied the petition, finding that Copeland held “a
    confidential relationship with the Security Forces Manager, the [Deputy] Adjutant
    General, and the Adjutant General,” rendering him exempt from the protection of
    section 35C.6. Copeland appeals.
    II.    Standard of Review
    “Our review of the denial of the petition for writ of certiorari is at law.” Frank
    Hardie Advert. Inc. v. City of Dubuque Zoning Bd. of Adjustment, 
    501 N.W.2d 521
    ,
    523 (Iowa 1993).      Relief is available through certiorari when a lower body
    exercising judicial functions exceeds its jurisdiction or acts illegally. 
    Id.
     Our review
    “is limited to determining whether the district court properly applied the law to the
    controversy before it.” 
    Id.
    The determination of whether a confidential relation exists under
    section 35C.8 “is not a simple question of fact. A confidential relationship is a legal
    status. It is a conclusion of law, rather than a finding of fact. A matter for judicial
    construction and determination.” Klatt v. Akers, 
    5 N.W.2d 605
    , 611 (Iowa 1942).
    So our review on this issue is also “limited to determining whether the district court
    properly applied the law to the controversy before it.” Machamer v. Iowa Dep’t of
    Admin. Servs., No. 15-1861, 
    2016 WL 7395731
    , at *1 (Iowa Ct. App. Dec. 21,
    2016) (citation omitted).
    III.   Analysis
    “Since the Civil War, Iowa has recognized the enormous contributions made
    to our lives by veterans of our armed forces by giving preference to veterans
    4
    seeking employment with the state, as well as employment with the cities,
    counties, and school corporations within the state.” Stammeyer v. Div. of Narcotics
    Enf’t of the Iowa Dep’t of Pub. Safety, 
    721 N.W.2d 541
    , 542 (Iowa 2006). To that
    end, the Veterans Preference Act “provides veterans with certain hiring
    preferences and workplace protections.” Williams v. Bullock, 
    960 N.W.2d 473
    , 477
    (Iowa 2021); accord Iowa Code § 35C.1(1).
    Among those protections is section 35C.6:
    No person holding a public position by appointment or
    employment, and belonging to any of the classes of persons to whom
    a preference is herein granted, shall be removed from such position
    or employment except for incompetency or misconduct shown after
    a hearing, upon due notice, upon stated charges, and with the right
    of such employee or appointee to a review by a writ of certiorari or at
    such person’s election, to judicial review in accordance with the
    terms of the Iowa administrative procedure Act, chapter 17A, if that
    is otherwise applicable to their case.
    This provision ensures “veterans permanency of employment and protect[s] them
    from removal except for their own incompetency or misconduct.” Kern v. Saydel
    Cmty. Sch. Dist., 
    637 N.W.2d 157
    , 161 (Iowa 2001).
    But the act’s protection against removal is not without exception. Iowa Code
    section 35C.8 provides that “[n]othing in this chapter shall be construed to apply to
    the position of private secretary or deputy of any official or department, or to any
    person holding a strictly confidential relation to the appointing officer.” (Emphasis
    added.) This exception has been a part of the statute since its enactment, see
    
    1904 Iowa Acts 9
    , § 2, and an “always troublesome” one at that. Klatt, 
    5 N.W.2d at 606
    . As a result, we have a good body of case law from our supreme court with
    instructions on how to interpret and consider confidential relations.
    5
    The term “is a very broad one and is not at all confined to any specific
    association of the parties, but applies generally to all persons who are associated
    by any relation of trust and confidence.” Allen v. Wegman, 
    254 N.W. 74
    , 79–80
    (Iowa 1934) (quoting Scott v. Brown, 
    157 N.E. 64
    , 68 (Ind. App. 1927)). “Where
    duties are not merely clerical and require skill, judgment, trust and confidence, the
    courts are inclined to regard the appointee to whom such duties are delegated as
    holding a strictly confidential relation to the appointing officer or board.” Brown v.
    State Printing Bd., 
    296 N.W. 719
    , 720 (Iowa 1941). We accordingly
    look at the duties of the appointing officer to determine whether the
    officer was compelled to entrust the performance of the duties to
    others because it would be impossible to discharge those assigned
    duties personally. We also look to see if the person appointed was
    “necessarily given considerable latitude and required to exercise his
    discretion and good judgment in dealing with many of the duties
    delegated to him.” If the appointing officer is required to perform a
    duty involving skill or integrity and could incur liability to himself or to
    the entity that employs him if the duty is not properly executed and
    the officer entrusts “the discharge of this duty to another, their
    relations become confidential.”
    Machamer, 
    2016 WL 7395731
    , at *2 (internal citations omitted).
    Copeland focuses on the delegation part of the analysis, arguing that
    because he reported directly to the security forces manager, “he did not have a
    confidential relationship with the Adjutant General or the [Deputy] Adjutant
    General,” who are the relevant appointing officers in this case. See Iowa Code
    § 8A.401(1). In making this argument, Copeland relies on the supreme court’s
    decision in Ervin v. Triplett, 
    18 N.W.2d 599
    , 601–02 (Iowa 1945), overruled on
    other grounds by Andreano v. Gunter, 
    110 N.W.2d 649
     (Iowa 1961), which
    considered whether a detective on a police force held a confidential relationship
    6
    with the commissioner of public safety. The Ervin court found no such relationship
    existed, reasoning:
    The work of a detective may be of a confidential nature and his
    reports may be confidential to his immediate superior. However, the
    record does not in any way disclose that a person holding the
    position of detective such as was held by the appellee in this case is
    one of “strictly confidential relation to the appointing officer.”
    
    Id.
     Copeland argues that like the detective in Ervin, he “may have a confidential
    relationship with his direct supervisor, the Security Forces Manager,” but he “does
    not have one with the appointing authority, the Adjutant General.”
    The holding of Ervin does give us some pause. But in cases since then,
    our supreme court has continued to apply the broad interpretation of “confidential
    relation” set forth in Allen—one that does not require “any specific association of
    the parties” but applies “generally to all persons who are associated by any relation
    of trust and confidence.”1      
    254 N.W. at
    79–80 (emphasis added); see, e.g.,
    Andreano, 
    110 N.W.2d at 654
     (listing cases finding a confidential relation between
    employees and their appointing officers, including a head bookkeeper in the state
    treasurer’s office, a senior examiner in the state auditor’s office, and a jailer in a
    sheriff’s office).
    Indeed, in Klatt, 
    5 N.W.2d at 611
    , the supreme court rejected a very similar
    argument when a senior examiner in the office of the state auditor argued the
    statute required a “personal confidential relation between the employee and the
    1 We decline Copeland’s invitation to reformulate the broad interpretation of
    “confidential relation” set forth in Allen in favor of a definition that “requires a direct
    relationship between the two parties which creates fiduciary duties and
    obligations.” We cannot overturn precedent of our supreme court. See State v.
    Hastings, 
    466 N.W.2d 697
    , 700 (Iowa Ct. App. 1990).
    7
    appointing officer.” Even though the state examiner in Klatt “never conferred with
    the Auditor concerning the performance of his duties, never worked in the Auditor’s
    office and never had access to any funds therein,” and was “not under the
    immediate supervision of the State Auditor,” the court found a confidential relation
    existed. 
    Id.
     at 611–12. In doing so, the court emphasized the nature of the
    examiner’s work, the “secrecy, integrity, trust, confidence, skill, [and] competence”
    required in the performance of the examiner’s duties, and the delegation of those
    duties by the auditor, who ultimately remained “responsible for their proper
    performance.” Id. at 612.
    Similarly, in Hannam v. Iowa State Commerce Commission, 
    292 N.W. 820
    ,
    820 (Iowa 1940), the court found an inspector in the motor transportation division
    held a confidential relationship with the Iowa State Commerce Commission. The
    court reached this conclusion even though the inspector’s immediate supervisor
    was a chief inspector, who reported to a deputy superintendent, who in turn
    reported to a superintendent of the motor vehicle transportation division, a
    subdivision of the Iowa State Commerce Commission. 
    Id.
     Like in Klatt, the court
    in Hannam did not focus on the direct relationship between the employee and the
    appointing authority but on the duties delegated to the employee. 
    Id.
     at 820–21.
    Turning to the delegation question, Copeland works backward, looking first
    at his duties to determine whether they could have been delegated to him by the
    appointing officer. He agrees with the district court that his position required him
    to be
    armed at all times, trusted to have access to restricted areas on a
    military base, and trusted and required to maintain a valid secret
    security clearance, military-level weapons qualifications, a favorable
    8
    background check, the ability to pass a strenuous Physical Agility
    Test, and a medical evaluation clearing him as fit to work.
    Copeland concedes that all of these duties required him to exercise “discretion and
    good judgment,” along with “skill, judgment, trust, and confidence.” Machamer,
    
    2016 WL 7395731
    , at *2. But he contends “[n]one of these are duties of the”
    adjutant general or assistant adjutant general, so they could not have been
    delegated to him by those authorities. We disagree, finding from the record a clear
    line of delegated duties from the adjutant general down the chain of command to
    Copeland.
    The adjutant general is tasked with keeping “charge of the state military
    reservations, and all other property of the state kept or used for military purposes.”
    Iowa Code § 29A.12(1). To aid the adjutant general in that duty, which would be
    impossible for one person to perform, see id., section 29A.16(1) provides for the
    appointment of a “deputy adjutant general for the air national guard upon the
    recommendation of the adjutant general.”        And section 29A.16(3) allows the
    adjutant general to “appoint a full-time staff within prescribed personnel
    authorization.”   See Bowman v. Overturff, 
    294 N.W. 568
    , 570 (Iowa 1940)
    (considering whether “[b]y reason of his numerous duties,” the appointing officer
    “was compelled to delegate to others”).       A position description questionnaire
    describing the work performed by an air base security officer specifically states the
    role requires the exercise of “police powers granted by the State Adjutant General
    . . . by carrying firearms, issuing citations, ordering unauthorized persons off the
    premises, or by detaining them for questioning or for civil authorities.” (Emphasis
    added.) Any errors in the exercise of these police powers could, as the district
    9
    court found, “cause bodily harm or security breaches” that could then expose the
    appointing officers to liability. See Machamer, 
    2016 WL 7395731
    , at *2.
    Copeland agrees with this chain of command, acknowledging that the
    adjutant general “is in charge of all aspects of the Iowa Air National Guard and
    delegates those tasks to other individuals, such as a Security Forces Manager,
    who then delegates even further down the chain to individuals, like Copeland, who
    are Security Guards.” But he raises a slippery-slope-type argument, contending
    that if he has a confidential relation with the adjutant general, it would “mean every
    employee of the Iowa Air National Guard has a confidential relationship because
    their supervisors have the relationship.”
    We disagree, first because delegation of duties is just one part of the
    analysis. In order to establish a “confidential relation to the appointing officer,” the
    duties themselves must, as stated earlier, not be “merely clerical” and instead
    require “skill, judgment, trust, and confidence,” along with the “exercise of
    discretion and good judgment.” 
    Id.
     As a result, not all positions in the Iowa Air
    National Guard would fall within the section 35C.8 exception as Copeland
    contends, even if the duties were delegated by the appointing officer.
    Second, to echo another point we made earlier, our supreme court has long
    applied a broad interpretation of the term “confidential relation” despite dissents
    raising the same concern as Copeland. See, e.g., Klatt, 
    5 N.W.2d at 613
     (Mitchell,
    J., dissenting) (“If in this position there is a confidential relationship, it would
    practically wipe out the Soldiers’ Preference Act for all positions with the possible
    exception of some minor jobs, like janitors or street cleaning jobs . . . .”). Because
    of that broad interpretation, and our obligation to follow controlling supreme court
    10
    precedent, we rejected a similar argument in Machamer, 
    2016 WL 7395731
    , at *3.
    We do so again here.
    IV.     Conclusion
    On our review of the record, we agree with the district court that Copeland’s
    position as an air base security officer placed him in a confidential relation with the
    appointing officer. Copeland was delegated duties that are statutorily assigned to
    the Adjutant General and “require skill, judgment, trust and confidence” from his
    superiors.    Brown, 296 N.W.2d at 720.         That confidential relation bars the
    application of the statutory protection provided in section 35C.6.        Iowa Code
    § 35C.8. Accordingly, we affirm the district court’s denial of Copeland’s petition for
    writ of certiorari.
    AFFIRMED.
    Vaitheswaran, P.J., concurs; Tabor, J., dissents.
    11
    TABOR, Judge (dissenting).
    I respectfully dissent. I do not find in the record where Tommy Copeland
    did “strictly confidential” work for the adjutant general to fall within the exception to
    the veterans-preference statute at Iowa Code section 35C.8 (2020). Copeland’s
    job as an air base security officer required the trust of his immediate supervisor—
    like the patrolman in Ervin v. Triplett, 
    18 N.W.2d 599
    , 601 (Iowa 1945), overruled
    on other grounds by Andreano v. Gunter, 
    110 N.W.2d 649
     (Iowa 1961). But
    Copeland did not “substitute” for the appointing officer—unlike the jailer deputized
    by the sheriff in Bowman v. Overturff, 
    294 N.W. 568
    , 570 (Iowa 1940). Because
    Copeland is entitled to the protections of chapter 35C, I would reverse and remand
    for the state department of public defense to provide a hearing.
    The majority is correct that courts have struggled with interpreting the
    phrase “a strictly confidential relation to an appointing officer” in what is now
    section 35C.8. See Klatt v. Akers, 
    5 N.W.2d 605
    , 607 (Iowa 1942). But I believe
    the majority takes an incorrect interpretive path today. Because that phrase,
    enacted in 1904, is notoriously ambiguous, the tools of statutory construction can
    help determine its meaning. See State v. Ross, 
    941 N.W.2d 341
    , 346 (Iowa 2020);
    1904 Iowa Acts ch. 9, § 2.
    First, our supreme court has liberally construed the veterans-preference
    statute because of the benefit it provides for people who have made the patriotic
    sacrifice to serve in the military. Tusant v. City of Des Moines, 
    300 N.W. 690
    , 694
    (Iowa 1940).     An early case declared the “central purpose” of the veteran-
    preference statute was to “insure to the veteran permanency of employment, and
    make him so far as possible independent of the changing whims and interests of
    12
    the officer or board under which he serves.” Kitterman v. Bd. of Supervisors of
    Wapello Cnty., 
    123 N.W. 740
    , 742 (Iowa 1909). “To hold otherwise,” the court
    reasoned, would allow the appointing officer “to convert the position into a political
    asset of the successful party at each recurring election.” 
    Id.
    Second, we must not let the exception in section 35C.8 swallow the general
    protections of the veterans-preference statute. “[W]here a general provision in a
    statute has certain limited exceptions, all doubts should be resolved in favor of the
    general provision rather than exceptions.” 2A Norman J. Singer, Statutes and
    Statutory Construction, § 47.11 at 246–47 (6th ed. 2000). In fact, our case law has
    recognized that “the legislature did not intend for section [35C.8] to be a tool by
    which the rest of chapter [35C] could be loosely circumvented.” Richards v. Bd. of
    Control of State Insts., 
    170 N.W.2d 243
    , 245 (Iowa 1969).
    With those two guides, let’s examine the language of the exception. It
    exempts three categories of employees from receiving the veteran preference:
    (1) and (2) are “the position of private secretary or deputy of any official or
    department” and (3) is “any person holding a strictly confidential relation to the
    appointing officer.” Iowa Code § 35C.8.
    Because “a strictly confidential relation” is not defined in the code, we may
    refer to court decisions, similar statutes, dictionary definitions, and common usage.
    See Jack v. P & A Farms, Ltd., 
    822 N.W.2d 511
    , 516 (Iowa 2012). Court decisions
    first. Early on, our supreme court in Brown v. State Printing Bd., 
    296 N.W. 719
    ,
    720 (Iowa 1941), borrowed a definition from a leading New York case:
    What is a “confidential relation” to the appointing officer? A
    complete definition may be difficult. We shall only attempt one in
    general terms. The meaning of “confidential” has two elements—
    13
    that of secrecy and that of trust and confidence. Confidential
    relations, in law, as defined by the Century Dictionary, is a relation of
    parties in which one is bound to act for the benefit of the other, and
    can take no advantage to himself from his acts relating to the interest
    of the other. Such a relation arises whenever a continuous trust is
    reposed by one person in the skill or integrity of another. The statute
    which we have under consideration has reference to officials, and
    the confidential relations mentioned undoubtedly have reference to
    official acts, and include not only those that are secret, but those that
    involve trust and confidence which are personal to the appointing
    officer. If, therefore, the statute casts upon an officer a duty involving
    skill or integrity, and a liability either personal or on the part of the
    municipality which he represents, and he intrusts the discharge of
    this duty to another, their relations become confidential.
    People v. Palmer, 
    46 N.E. 328
    , 329 (N.Y. 1897).
    Brown embellished on the Palmer definition: “Where duties are not merely
    clerical and require skill, judgment, trust and confidence, the courts are inclined to
    regard the appointee to whom such duties are delegated as holding a strictly
    confidential relation to the appointing officer or board.”2 
    296 N.W. at 720
    . Citing
    Brown, the majority reasons that Copeland was “delegated duties that are
    statutorily assigned to the Adjutant General and ‘require skill, judgment, trust and
    confidence’ from his superiors.”
    In my view, we have stretched the Brown embellishment too far. Not all
    employees who perform non-clerical duties that roughly fall within the job
    description of a higher officer should be exempt from the veterans-preference
    statute. For starters, finding that Copeland falls under the exception ignores the
    word “strictly” in section 35C.8. As our supreme court acknowledged, “There can
    2 Unlike this case, Brown was not a close call. The court held that the state
    supervisor of printing, appointed by state printing board, was not entitled to
    benefits. It summarized: “The statutes fairly imply a relation of strict confidence on
    the part of the superintendent toward the board that appoints him and at whose
    pleasure he serves.” Brown, 
    296 N.W. at 721
    .
    14
    be no question that the Legislature had a purpose in using the qualifying adverb,
    and it should be given its accustomed meaning.” Klatt, 
    5 N.W.2d at 611
    . The
    dictionary defines “strictly” as “closely, precisely, rigorously, stringently, positively.”
    Websters Third New International Dictionary 2261 (1993).               To that end, by
    modifying “confidential relation” with the word “strictly” the legislature intended to
    limit the exception to employees acting in close association with the superior who
    delegated the position of confidence.
    Overlooking that limitation, the majority relies on boilerplate characterizing
    the exception as “very broad” and “not at all confined to any specific association of
    the parties, but applies generally to all persons who are associated by any relation
    of trust and confidence.” Allen v. Wegman, 
    254 N.W. 74
    , 79–80 (Iowa 1934)
    (quoting Scott v. Brown, 
    157 N.E. 64
    , 68 (Ind. App. 1927)).3 Such reliance is shaky
    because Scott was interpreting “confidential relation” in a contract case alleging
    fraudulent inducement. Scott, 
    157 N.E. at 68
    . Plus, the Indiana court clarified that
    “it arises when a continuous trust is reposed by one person in the skill or integrity
    of another.”    
    Id.
       Even if that contract law formulation informs our statutory
    interpretation, nothing in this record shows that the adjutant general placed his
    personal confidence in Copeland. In fact, our record does not show that the
    adjutant general had ever met Copeland or had any personal or professional
    3 The majority notes that we cannot overrule Allen. Agreed. And we need not do
    so to grant Copeland relief. Allen rejected the need for a “specific association” in
    dicta. The court held that because Allen ran the bookkeeping department of the
    state treasurer’s office, his position “involved strictly confidential relations with the
    head of the office.” Allen, 
    254 N.W. at 80
    . Allen’s close position of trust with the
    appointing officer was a far cry from the line-level security post held by Copeland.
    15
    exchanges with him.4 It also does not show how many security officers or similarly
    skilled employees worked for the department of public defense who would also be
    excluded from the veterans-preference protection.
    Then there’s context.     Consistent with the associated-words canon of
    construction, we should not read the third exception—a strictly confidential
    relation—in isolation from the other two categories. See Ross, 941 N.W.2d at 348.
    Rather, we must view it alongside the exceptions for private secretaries and
    deputies. Put another way, “the meanings of particular words may be indicated or
    controlled by associated words.” Id. (citation omitted). Thus, because private
    secretaries and deputies are identifiable individuals in the immediate orbit of the
    appointed official or department head, the third category also should be limited to
    employees who have close and confidential ties to the appointing officer. Focusing
    on any nebulous “relation” between the appointing officer and the employee
    renders the words “strictly confidential” meaningless. See id. at 347.
    Bottom line, the majority’s unreasonably expansive reading of the exception
    undermines the beneficial purpose of the statute and threatens to deprive
    deserving veterans of the procedural protections of chapter 35C.
    4 The majority recites facts from Klatt, which held that a senior examiner had a
    confidential relation with the state auditor, though the examiner did not confer
    directly with the auditor “concerning the performance of his duties.” 
    5 N.W.2d at 611
    . But that decision made clear that the examiners held trusted positions as
    “closemouthed men, of ability, integrity and fidelity, since in their examinations and
    investigations they acquire knowledge of matters affecting not only public officials
    but also private individuals which is highly confidential, and should be disclosed to
    no one except as their duties require disclosure to their superiors.” 
    Id.
     And after
    those investigations, the examiners reported the results of their investigations to
    the state auditor. Again, a far cry from Copeland’s position as a security guard.