IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1797
                             Filed February 22, 2017


WILLIAM J. BURKE,
     Plaintiff-Appellant,

vs.

CITY COUNCIL OF CITY OF LANSING, IOWA,
      Defendant-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Allamakee County, Richard D.

Stochl, Judge.



       A former city council member appeals the district court’s decision denying

his petition for writ of certiorari in which he challenged his removal from the city

council. REVERSED AND REMANDED.




       Erich D. Priebe and David J. Dutton of Dutton, Braun, Staack & Hellman,

P.L.C., Waterloo, for appellant.

       Beth E. Hansen, Dustin T. Zeschke, and Kevin R. Rogers (until

withdrawal) of Swisher & Cohrt, P.L.C., Waterloo, for appellee.



       Heard by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
                                         2


VAITHESWARAN, Judge.

       Members of the Lansing City Council voted to remove city council member

William Burke from office.       Burke challenged the action in district court.

Following an evidentiary hearing, the court found substantial evidence to support

the decision. On appeal, Burke raises several issues, one of which we find

dispositive: whether the removal proceeding violated the United States and Iowa

Constitutions’ guarantees of procedural due process.

I.     Background Facts and Proceedings

       The case for Burke’s removal arose from claimed violations of our open

meetings law. See Iowa Code ch. 21 (2015). The law “seeks to ensure, through

a requirement of open meetings of governmental bodies, that the basis and

rationale of governmental decisions, as well as those decisions themselves, are

easily accessible to the people.” Iowa Code § 21.1. To that end, meetings of

governmental bodies are to be “preceded by public notice . . . and shall be held

in open session unless closed sessions are expressly permitted by law.”           Id.

§ 21.3.

       The City of Lansing issued an agenda for a city council meeting stating a

closed session would be held “[t]o discuss strategy in matters that are presently

in litigation or where litigation is imminent where its disclosure would be likely to

prejudice or disadvantage the position of the governmental body in that litigation

in compliance with chapter 21.5 of State statutes.” After the agenda was issued,

the city clerk requested an opinion from the Lansing city attorney as to whether

the two topics she understood to be up for discussion in the closed session

qualified for closed session under the open meetings law.         The city attorney
                                            3


issued a memo opining that the topics did not qualify for closed session and city

council members could be subject to fines and costs for violation of the open

meetings law if a court were to determine they lacked a basis for going into

closed session.

         The city clerk forwarded the memo to the city council members, including

Burke. Burke notified the clerk that he disagreed with “the reasons . . . reported

to the city attorney . . . for closed session.” He prepared a responsive memo

explaining what he perceived to be the real purpose of the closed session.

         Burke and city council members Bechtel and Volker attended the

scheduled city council meeting. The council went into closed session on a two-

to-one vote, with Volker casting the no vote. No action was taken in the closed

session.

         Later, the city council held a special meeting on an unrelated matter.

Twenty-four-hour notice of this meeting was not given.

         Tensions between the city council and city residents culminated in an

investigation by the Allamakee County Attorney into the council’s actions. The

county attorney filed a petition alleging the two meetings violated Iowa’s open

meetings law.

         The city retained an attorney to represent the city council and its

members.1        The attorney concluded the county attorney had “made some

legitimate allegations.” She prognosticated that

         each council member named in the lawsuit who participated in a
         violation of the open meetings law will be fined by the court
         between $100 to $500 for the violation(s), as well as be held

1
    Burke subsequently obtained his own attorney.
                                            4


       responsible for paying all costs and reasonable attorney fees to the
       County Attorney for having to bring the lawsuit.[2]

The attorney set forth a potential settlement strategy she had discussed with the

county attorney that would require Burke’s resignation in exchange for dismissal

of the lawsuit at the city’s cost.

       The county attorney and retained attorney addressed the city council and

members of the public at a council meeting that Burke did not attend.                The

retained attorney publicly stated she filed an answer to the county attorney’s

petition denying the allegations. The attending city council members then went

into closed session to discuss litigation strategy.

       There followed a letter from the mayor petitioning the city council to

remove Burke from office for “willful misconduct and maladministration in office in

his handling of several matters relating to violation of the Iowa Open Meetings

laws which resulted in legal action against members of the City Council and the

City in District Court.” Three council members voted “to accept acknowledgment

of” a removal petition.      After a special council meeting, members Bechtel,

Conway, Kolsrud, and Volker voted to remove Burke from office.                     Burke

abstained.

       Burke sought certiorari review in the district court. In an amended petition,

he alleged in pertinent part that (1) the attorney retained to defend the council

members in the open meetings lawsuit filed by the county attorney notified them

of the pecuniary consequences if the court were to find violations of the open


2
 Although there was significant discussion in the district court about whether the advice
was privileged, the mayor read the attorney’s e-mail into the public record of the removal
proceeding.
                                           5


meetings law, (2) the mayor’s request for his removal was filed soon after, (3) “no

sworn witnesses” testified at the hearing on the removal request, (4) the mayor

“who lacked direct knowledge of the charges . . . presented argument in support

of the” petition, (5) the city council, “acting in a judicial capacity, then voted 4-0 to

approve a motion to remove [him] as a member of the Lansing City Council,” and

(6) four days later, the county attorney dismissed the open meetings lawsuit.

Burke further alleged:

       Councilpersons Jeffrey Bechtel, Rebecca Conway, Ross Kolsrud,
       and Deborah Volker had a conflict of interest in voting on the
       removal because they were individually-named defendants in the
       County Attorney’s Open Meetings lawsuit. At the time they
       conducted the removal hearing and voted for removal, each held an
       expectation that [his] removal . . . from office would procure the
       dismissal of the Open Meetings lawsuit, thereby protecting each
       such council member from the possibility that he or she would be
       held individually liable for open meeting damages.

He also alleged:

       [His] removal . . . from office deprived him of the property interest of
       his city council compensation and deprived him of his liberty
       interest in his reputation. The manner in which [his] removal . . .
       was accomplished lacked fundamental fairness, including deficient
       notice of the charges made against him, deficient proof of his
       alleged wrong-doing, the manner in which the removal hearing was
       conducted, and the conflict of interest held by the quasi-judicial
       panel of city council members sitting in judgment . . . . [His]
       removal . . . therefore resulted in an unlawful deprivation of [his]
       liberty or property without due process of law in violation of the
       Fourteenth Amendment of the U.S. Constitution and Article I,
       Section 9 of the Iowa Constitution.

       The district court held an evidentiary hearing and considered deposition

testimony and other evidence adduced during the district court proceeding. The

court denied Burke’s petition.         Burke moved for expanded findings and

conclusions, which the court also denied.
                                           6


       On appeal, Burke raises a number of issues. We begin and end with his

contention that the city council’s removal proceeding violated procedural due

process under the Fourteenth Amendment of the United States Constitution and

article I, section 9 of the Iowa Constitution.

II.    Error Preservation

       As a preliminary matter, the city council contends Burke failed to preserve

error on his due process claims because he did not raise them “at the lower

tribunal level (city council).” The council concedes the issue was raised in the

district court certiorari proceeding and was decided by the district court, but

argues the district court proceeding was in the nature of an appellate action, with

the record limited to the record created before the council. See, e.g., Anderson

v. W. Hodgeman & Sons, Inc., 524 N.W.2d 418, 420 (Iowa 1994) (“Historically,

we have distinguished cases involving a district court’s appellate jurisdiction from

those invoking its original jurisdiction.”); see also, e.g., Walthart v. Bd. of Dirs. of

Edgewood-Colesburg Cmty. Sch. Dist., 694 N.W.2d 740, 743 (Iowa 2005) (“A

district court on judicial review of the adjudicator’s ruling is also limited as to the

evidence it may consider.”); State, Dep’t of Pub. Safety v. Woodhall, 376 N.W.2d

897, 898 (Iowa 1985) (“The court reviewing agency action exercises appellate

jurisdiction only and is without original authority to declare the rights of parties or

the applicability of any statute or rule.”). At the same time, the city council asks

us to review portions of the record created during the district court proceeding in

deciding whether the council’s removal decision was appropriate.

       The council cannot have it both ways. If the council wishes to hold Burke

to the record created before the council, it too must be bound by that record. We
                                         7


proceed to decide the scope of the record before us because our resolution of

that issue will also resolve the error preservation question.

       Iowa Code chapter 66 governs the removal of appointed or elected

officers. See Iowa Code § 66.1A. The chapter sets forth removal procedures

and provides that “any city officer elected by the people may be removed from

office, after hearing on written charges filed with the council of such city for any

cause which would be ground for an equitable action for removal in the district

court.” Id. § 66.29. The chapter states, “Proceedings before the council shall not

be a bar to proceedings in the district court as in this chapter provided.” Id.

§ 66.30. Proceedings in the district court are to be “summary” and “triable as an

equitable action.” Id. § 66.18; State v. Callaway, 268 N.W.2d 841, 842 (Iowa

1978); State v. Bartz, 224 N.W.2d 632, 634 (Iowa 1974).

       Read together, sections 66.30 and 66.18 authorize two sets of

proceedings—one before the city council and another before the district court.

Both are original proceedings. A district court reviewing a city council’s removal

decision may consider evidence submitted to the city council as well as evidence

submitted in the judicial proceeding.

       As noted, Burke raised his due process challenge to the council’s actions

in the district court proceeding and obtained a district court ruling on that

challenge. Because the record is not limited to matters raised before the council,

we conclude he preserved error. See Cooksey v. Cargill Meat Sols. Corp., 831

N.W.2d 94, 99 (Iowa 2013) (“Because the issue was presented to and decided

by the district court, we held the issue was preserved . . . .”). We proceed to

address the merits of Burke’s due process challenge, considering the record
                                         8


made before the city council, as well as the record made in the district court. Our

review of this constitutional issue requires us to make our own evaluation of the

facts from the totality of the circumstances. See Hancock v. City Council, 392

N.W.2d 472, 473 (Iowa 1986).

III.   Procedural Due Process

       The Iowa Supreme Court recently summarized due process as follows:

       The Fifth Amendment to the United States Constitution states that
       no person shall “be deprived of life, liberty, or property, without due
       process of law,” and the Fourteenth Amendment also states that no
       state shall “deprive any person of life, liberty, or property, without
       due process of law.” Article I, section 9 of the Iowa Constitution
       states that “no person shall be deprived of life, liberty, or property,
       without due process of law.” “Due process requires fundamental
       fairness in a judicial proceeding,” so a trial that is fundamentally
       unfair violates the guarantees of due process in the United States
       and Iowa Constitutions.

More v. State, 880 N.W.2d 487, 499 (Iowa 2016).

       Burke argues “the removal proceeding before the city council was

fundamentally unfair because “each member of City Council who voted on [his]

removal had a conflict of interest—a pecuniary interest—in deciding [his] fate”

and the “City Council itself generated the factual record necessary to sustain its

decision, which perpetuates its conflict of interest.” The city council responds by

parsing the council members’ votes at the two meetings that were the subject of

the open meetings lawsuit and by arguing certain votes were irrelevant. This

argument misses the mark.

       Due process requires a “fair trial in a fair tribunal.” Botsko v. Davenport

Civil Rights Comm’n, 774 N.W.2d 841, 848 (Iowa 2009) (citation omitted). Burke

received neither, because the four city council members who voted to remove
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him understood they would have no financial exposure for possible violations of

the open meetings law if they removed Burke. The mayor’s testimony in the

district court is instructive. He was asked whether at the time of the hearing

there was “an offer that had been made to the city council members that if Burke

was removed from office, the county attorney’s open meetings litigation would be

dismissed.” The mayor responded, “That came to the entire council in the form

of an email from [retained counsel] prior to the time of the [removal] hearing,

yes.” Notably, the mayor read the email, including the settlement offer, into the

public record of the removal proceeding and advised the council members that

the city’s insurance policy would “not cover the cost of any judgment entered by

or against each of [them]” and “[a]ny judgment that is entered will be your

personal responsibility.”

       Similarly, the city clerk was asked whether she made “a comment during

the removal hearing reminding the city council that the county attorney had an

offer on the table that if Burke was removed from office, that the open meetings

litigation would be dismissed.” She responded, “Yes.”

       We have considered the city council’s reliance on the four council

members’ statements that “the pending suit had no bearing on their decision” to

remove Burke. This self-serving testimony is immaterial because Burke was not

required to make a showing of actual prejudice, given “the risk of injecting bias in

the adjudicatory process.” See id. at 853.

       We conclude the council members’ pecuniary interest in removing Burke

rendered the proceeding fundamentally unfair and amounted to a violation of

Burke’s procedural due process rights.       See Keith v. Cmty. Sch. Dist., 262
                                        10


N.W.2d 249, 253, 260 (Iowa 1978) (“[N]o man is permitted to try cases where he

has an interest in the outcome.” (citing In re Murchison, 349 U.S. 133, 135

(1955)).

       If the council members’ financial interest in removing Burke were not

sufficient to taint the fairness of the removal proceeding, their decision to

combine “advocacy and adjudicative functions” was. See Botsko, 774 N.W.2d at

853.   The    evidence    necessary    to    establish   “willful   misconduct   and

maladministration in office” was in the hands of the city council members. Id. As

in Keith, “it was necessary for the [council members] to call upon their own

personal knowledge and impression . . . because there were no other witnesses.”

262 N.W.2d at 260. The fact that their deposition testimony was introduced into

the district court record underscores the improper integration of prosecutorial and

adjudicative functions. In other words, the council essentially served as

prosecutor by apparently authorizing initiation of the removal process.          The

council members also supported Burke’s removal in district court by presenting

their own witness testimony, through depositions, to document their personal

knowledge of the grounds for removal.            In sum, they were involved in

prosecuting, investigating, and deciding the removal case. This intermingling of

functions amounted to another due process violation.

       To add salt to Burke’s wound, the council members provided no statement

of reasons for their removal decision. The absence of fact findings amounted to

a third due process violation. See Hancock, 392 N.W.2d at 478 (“[T]he decision

of the city following the hearing should have included findings of fact, in writing,
                                              11


which would inform the parties of the basis of the decision and aid in a district

court’s certiorari review of its action.”).

        Because the removal proceeding violated Burke’s right to procedural due

process, we reverse and remand for entry of an order sustaining the writ of

certiorari. See id. at 480.3

IV.     Expenses and Attorney Fees

        Burke contends Iowa Code chapter 66 authorizes him to recover his

expenses and attorney fees. Section 66.23 states, “If 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.” Burke seeks attorney fees “[i]f the

court grants [his] petition for writ of certiorari and declares that his removal was

illegal.” The city council counters that the city’s ordinance does not authorize

fees.

        The ordinance does not speak to the question of expenses and fees, while

section 66.23 authorizes the payment of expenses and fees on the dismissal of

the removal petition. Section 66.23 is controlling. We reverse and remand for a

determination of the expenses and fees payable to Burke’s attorney.

        REVERSED AND REMANDED.




3
  The city council is not without a remedy. Chapter 66 provides several methods for
removing public officials. See Iowa Code § 66.3; Botsko, 774 N.W.2d at 854 (noting
commission could explore the possibility of pursuing the case “before an untainted
body”).