Charles A. Stream And Diane B. Mcmahan Vs. Greg Gordy, Willie Van Weelden, And Lawrence Rouw, As Mahaska County Board Of Supervisors

IN THE SUPREME COURT OF IOWA
No. 46 / 04-2013
Filed June 23, 2006
CHARLES A. STREAM and
DIANE B. MCMAHAN,
Appellees,
vs.
GREG GORDY, WILLIE VAN WEELDEN,
and LAWRENCE ROUW, as MAHASKA
COUNTY BOARD OF SUPERVISORS,
Appellants.
Appeal from the Iowa District Court for Mahaska County, James Q.
Blomgren, Judge.
Members of the board of supervisors appeal a district court order
finding the supervisors’ action illegal when they refused to provide full-time
compensation and benefits to an employee shared by the county attorney’s
and the assessor’s offices and requiring the county to pay outside counsel’s
legal fees. REVERSED AND CASE REMANDED WITH DIRECTIONS.
Carlton G. Salmons of Gaudineer, Comito & George, L.L.P., West Des
Moines, for appellants.
Garold F. Heslinga of Heslinga, Heslinga, Dixon & Moore, Oskaloosa,
for appellees.
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WIGGINS, Justice.
In this case, we must decide whether the district court was correct
when it found the county supervisors acted illegally by refusing to provide
full-time compensation and benefits to an employee shared between the
county attorney’s and the assessor’s offices. We must also decide whether
the county is responsible for the legal fees of the county attorney’s and the
assessor’s outside counsel. Because the members of the board of
supervisors were exercising a legislative function at the time they
disapproved the full-time compensation and benefits for the shared
employee, a writ of certiorari will not lie against them. Additionally, the
county is not responsible for the legal fees of the county attorney’s and the
assessor’s outside counsel because the county attorney and the assessor
failed to obtain authorization from their respective boards prior to retaining
outside counsel. Accordingly, we reverse the judgment of the district court
and remand the case for entry of judgment consistent with this opinion.
I. Background Facts and Proceedings.
Charles Stream, the Mahaska County attorney, shared a full-time
employee with the sheriff’s office, splitting the employee’s time, salary, and
benefits. When that employee left Stream’s office, he decided to fill the
vacancy in the same manner. In January 2003, Stream informed the
Mahaska County board of supervisors (Board) of his intention to do so at its
meeting regarding his budget for fiscal year 2003-04. This budget included
$11,000 for the county attorney’s share of the employee’s full-time salary as
well as one-half the cost of family benefits for the employee. Stream then
hired Carrie Ferguson to fill the part-time secretary vacancy in his office on
February 1, paying her $9 an hour. At the time of Ferguson’s hire, Stream
told her that if she worked well he would attempt to make her position full-
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time by having her work part-time in another county office. Stream did not
tell Ferguson the employee-sharing arrangement was contingent on
approval by the Board. Instead, he told her the Board had already approved
such an arrangement.
As he had done in the past, Stream sought the Board’s approval for
his hiring of Ferguson. The Board approved her hire at $9 an hour with no
benefits. In March, the Board approved and certified Stream’s budget for
fiscal year 2003-04. In April, Stream became aware of a part-time clerk
opening in the county assessor’s office. He approached Diane McMahan,
the Mahaska County assessor, about hiring Ferguson for that position.
Stream and McMahan agreed to share Ferguson as an employee and to split
equally the costs of her $22,000 salary and benefits.
Although McMahan’s office was not required to obtain the Board’s
approval for the hiring of Ferguson, Stream and McMahan jointly wrote a
letter on May 23 to the Mahaska County auditor, with a copy to the Board,
notifying the auditor of their arrangement so she could place Ferguson on
the payroll at the higher rate of pay with benefits effective June 1. Around
this time, McMahan also notified the Mahaska County conference board of
this arrangement as a matter of courtesy. The assessor has the authority to
hire office personnel subject to the budget limitations imposed by the
conference board. Iowa Code §§ 441.13, 441.16 (2003).
On May 27, after Stream had appeared at a meeting of the Board
where he criticized the Board’s lack of communication as to changes in the
health insurance program, the Board met with Stream and McMahan to
discuss the employee-sharing arrangement. Stream justified the
arrangement by claiming it would establish a longer-term employee and
avoid potential turnover as a part-time position.
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On June 2, the Board again discussed the employee-sharing
arrangement, focusing on its costs. Supervisors Lawrence Rouw and Greg
Gordy voted not to approve the employee-sharing arrangement while
supervisor Willie Van Weelden voted for it. Accordingly, the auditor could
not place Ferguson on the payroll as a joint employee of the county attorney
and the assessor for the $22,000 salary plus benefits.
Stream learned of the Board’s decision the next day. Stream went to
his office, did some quick research, and contacted outside counsel. Without
seeking Board approval, Stream hired outside counsel that day. He then
asked McMahan if she wanted to join him in pursuing an action against the
supervisors over their refusal to confirm the employee-sharing arrangement.
She agreed to join in the lawsuit and to share the costs of hiring outside
counsel from their respective budgets.
Stream and McMahan filed a petition in certiorari challenging the
Board’s decision not to approve the employee-sharing arrangement. They
named the individual supervisors of the Board as defendants. The district
court issued the writ of certiorari. The supervisors filed a return to the writ,
an answer, and a counterclaim asserting McMahan and Stream did not
have the authority to commence the action against the supervisors, retain
outside counsel, or pay for such counsel. The supervisors also sought a
declaratory judgment asking the court to find Stream and McMahan
personally liable for the attorney fees in this case.
The district court entered a ruling partially sustaining the
supervisors’ motion for summary judgment and dismissed McMahan’s
claims because, as assessor, she had independent statutory authority to
hire and pay Ferguson, which was not subject to Board approval. The
supervisors’ motion for summary judgment as to Stream, however, was
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overruled by the court because a genuine issue of material fact existed as to
whether the supervisors’ action was arbitrary, capricious, or for illegitimate
reasons.
The case proceeded to trial. The district court ruled in favor of
Stream finding the supervisors’ failure to approve the employee-sharing
arrangement with full-time compensation and benefits was illegal. The
court also ruled the county attorney and the assessor acted legally when
they retained outside counsel and ordered the county to pay Stream’s
outside counsel’s legal fees.
II. Issues.
In this appeal, we must determine: (1) whether the supervisors were
exercising a judicial or legislative function when they made their decision
not to approve the employee-sharing arrangement; (2) whether the county
should pay outside counsel’s legal fees; and (3) whether Stream and
McMahan are personally liable for outside counsel’s attorney fees.
III. Scope of Review.
“A writ of certiorari lies where an inferior tribunal, board, or official,
exercising judicial functions, has exceeded its proper jurisdiction or
otherwise acted illegally.” Waddell v. Brooke, 684 N.W.2d 185, 189 (Iowa
2004). In such an action, the person seeking the writ has the burden of
proof. Id. Review of a certiorari proceeding is for correction of errors at law.
Id. at 190.
Likewise, “ ‘[a] declaratory judgment action tried at law limits our
review to correction of errors at law. We are bound by well-supported
findings of fact, but are not bound by the legal conclusions of the district
court.’ ” IMT Ins. Co. v. Crestmoor Golf Club, 702 N.W.2d 492, 495 (Iowa
2005) (citations omitted).
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IV. Analysis and Discussion.
Stream brought this certiorari action against Gordy, Van Weelden,
and Rouw in their capacity as supervisors for Mahaska County claiming
their action was “arbitrary, capricious, and an attempt to control an
autonomous county office” when they voted to disapprove Stream’s
employee-sharing arrangement with the assessor’s office. A writ of
certiorari will not lie against the supervisors if they were exercising a
legislative function at the time they refused to confirm the employee-sharing
arrangement. See Iowa R. Civ. P. 1.1401 (stating “[a] writ of certiorari shall
only be granted when specifically authorized by statute; or where an inferior
tribunal, board or officer, exercising judicial functions, is alleged to have
exceeded proper jurisdiction or otherwise acted illegally” (emphasis added)).
In a certiorari proceeding, the nature of the act performed determines
whether that act was legislative or judicial. Gates v. City Council of
Bloomfield, 243 Iowa 1, 9-10, 50 N.W.2d 578, 583 (1951).
The general assembly gave the supervisors the authority to
“determine the compensation of extra help and clerks appointed by the
principal county officers.” Iowa Code § 331.904(4). Generally, it is a
legislative function to fix the terms and conditions of public employment.
State Bd. of Regents v. United Packing House Food & Allied Workers, 175
N.W.2d 110, 113-14 (Iowa 1970). Additionally, “[t]he appropriation of
money is essentially a legislative function under our scheme of
government,” and inherent in that power “is the power to specify how the
money shall be spent.” Welden v. Ray, 229 N.W.2d 706, 709-10 (Iowa
1975).
The general assembly vested the power of the county with the
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supervisors. Iowa Code § 331.301(2). It gave them the authority to
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determine the compensation of the extra help and clerks appointed by the
principal officers of the county in order to avoid the turmoil that would
result if each individual county office was allowed to dictate to the
supervisors the amount of money the supervisors should appropriate to
that office for its staff’s compensation levels. In order to ensure the
supervisors properly fund all aspects of county government, the supervisors
must strike a balance between the public needs of each county agency and
the limited financial resources available to the county. We must leave the
interdependent political, social, and economic judgments necessary to
allocating the county’s limited financial resources among the various county
agencies to the supervisors and not to the individual county officials. In
making these allocations, the supervisors are responsible for setting the
priorities of the county and weighing the needs of the agencies against those
priorities. When making these decisions, the supervisors are exercising
their legislative function.
At the time the supervisors voted to disapprove the county attorney’s
employee-sharing arrangement, they were doing nothing more than making
a legislative determination vested in them by the general assembly that they
would not spend any more of the county funds in salary or benefits for a
position they previously authorized at a lower pay level with no benefits.
Accordingly, under the facts of this case, the supervisors were exercising a
legislative function when they refused to confirm the county attorney’s
employee-sharing arrangement. Therefore, a writ of certiorari will not lie to
review the supervisors’ action in not approving the employee-sharing
arrangement between the county attorney and the assessor.
This conclusion does not mean the supervisors’ actions are beyond
the reach of the people they were elected to serve. The supervisors’
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decisions are subject to review by the electorate at the next election. Under
the separation-of-powers doctrine, “electoral control [is] an important
restraint on legislative conduct.” Teague v. Mosley, 552 N.W.2d 646, 650
(Iowa 1996).
The supervisors also appeal the district court’s decision allowing the
county attorney and the assessor to pay their outside counsel’s legal fees
from their budgets. The county attorney contends he had a budget line
item of $250 for outside legal counsel. He incurred $267.50 for his half of
outside counsel’s first bill and $4949.90 at the time of trial. The county
attorney further claims he had unexpended funds in the amount of
$13,827.15 in his budget to pay outside counsel. The assessor contends
she had a budget line item of $28,000 for attorney fees, specifically
designated for hiring outside counsel in property tax assessment appeals,
and $2000 for legal services.
Counsel for the supervisors instructed the auditor not to pay claims
for attorney fees incurred by the county attorney, but the parties stipulated
that outside counsel would receive payment for McMahan’s half of the fees.
The parties further agreed, however, the county could get this amount back
if the supervisors prevailed on their counterclaim.
The Code provides:
The board [of supervisors] 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). The Code further provides:
In the case of counties, the county attorney shall represent the
assessor and board of review in all litigation dealing with
assessments. Any taxing body interested in the taxes received
from such assessments may be represented by an attorney and
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shall be required to appear by attorney upon written request of
the assessor to the presiding officer of any such taxing body.
The conference board may employ special counsel to assist the
city legal department or county attorney as the case may be.
Id. § 441.41. These statutes give the authority to the board of supervisors
to hire outside counsel for the county attorney and to the conference board
to hire outside counsel for the assessor. Under these statutes, the county
attorney and the assessor were required to seek authorization from their
respective boards prior to obtaining outside counsel. See Tatlock & Wilson
v. Louisa County, 46 Iowa 138, 139 (1877) (stating “[w]hile it may be the
duty of the district attorney to appear for and defend actions brought
against a county, this by no means gives him authority to employ additional
counsel, much less would his acceptance of the services of attorneys who
might appear in the cause bind the county”). Their failure to do so
precludes them from requiring the county to pay outside counsel’s legal
fees. See Smith v. Bd. of Supervisors, 320 N.W.2d 589, 593 (Iowa 1982)
(holding the legal fees of outside counsel hired by county officials without
board authorization were not payable by the county because attorney fees
are generally not permitted in the absence of a statute or an agreement by
the party to be charged and there is no inherent power of the court to make
such an allowance).
In the alternative, the county attorney argues he could pay outside
counsel’s legal fees from the unexpended funds in his budget. Generally,
once the supervisors approve and appropriate the county attorney’s budget,
the county attorney can reallocate his appropriation within his office so long
as the expenditures he authorizes are within his budget limits and for
legitimate purposes. See Iowa Code § 331.437 (limiting a county official’s
expenditures to the amount appropriated by the board of supervisors).
Once a budget is approved, however, the supervisors continue to exercise
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an oversight function by virtue of their power of approval over the payment
of expenditures made on behalf of the county. See id. § 331.401(1)(p)
(stating the board of supervisors shall “[e]xamine and settle all accounts of
the receipts and expenditures of the county and all claims against the
county, except as otherwise provided by state law”); Iowa Code
§ 331.506(1)(a) (stating “the auditor shall prepare and sign a county
warrant only after issuance of the warrant has been approved by the board
[of supervisors] by recorded vote”). Clearly, the expenses for outside
counsel’s legal fees were not authorized by the officials’ respective boards. If
under these circumstances we were to allow payment of these fees from
other funds within the officers’ respective budgets, we would make the
authorization provisions of sections 331.754(4) and 441.41 a nullity. Thus,
the county attorney’s unauthorized expenditures for outside counsel’s legal
fees are not payable by the county.
Finally, the supervisors seek to hold the county attorney and the
assessor personally liable for outside counsel’s legal fees. The question of
personal liability is an issue for outside counsel, the county attorney, and
the assessor. The record presents no such controversy between those
parties. Consequently, there is no justiciable controversy and we will not
issue an advisory opinion on the matter. See Hartford-Carlisle Sav. Bank v.
Shivers, 566 N.W.2d 877, 884 (Iowa 1997) (stating “[t]his court has
repeatedly held that it neither has a duty nor the authority to render
advisory opinions”).
V. Disposition.
We hold a writ of certiorari will not lie to review the action of the
supervisors in refusing to fund the employee-sharing arrangement between
the county attorney and the assessor for the reason that when the
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supervisors acted to disapprove payment they were exercising a legislative
function. Additionally, the county is not responsible for the legal fees of
outside counsel retained by the county attorney and the assessor because
the county attorney and the assessor failed to obtain the proper
authorization from their respective boards prior to obtaining outside
counsel. Thus, we reverse the judgment of the district court and remand
the case for entry of judgment consistent with this opinion.
REVERSED AND CASE REMANDED WITH DIRECTIONS.