Lead Opinion
In this appeal, we decide two issues concerning the qualifications of persons who serve state government on commissions that engage in rulemaking. First, we must decide whether an Iowan who served on a commission was disqualified to vote on the adoption of a rule and regulation when she engaged in activities in her employment in support of the rule. Second, we must decide whether a rule adopted by a commission was invalid after it was discovered that a member who participated in the voting was not actually qualified to serve on the commission because she had lost her status as an elector in Iowa.
On our review of the decision by the district court, we conclude the nature of rulemaking does not disqualify a commission member from voting to adopt rules she personally and professionally supported. We also conclude that the disqualification of a commission member does not invalidate the action taken by the commission when the particular disqualification did not undermine the integrity of the process and when the public interest supports validating the rule despite the disqualification. We affirm the decision of the district court.
I. Background Facts and Proceedings.
The Environmental Protection Commission exists to protect Iowa’s environment and conserve its natural resources. One of its primary duties is to establish policies
In March 2007, Governor Chet Culver appointed Susan Heathcote to the Commission. The appointment was confirmed by the senate. Heathcote was employed by the Iowa Environmental Council. The Iowa Environmental Council is a nonprofit corporation located in Des Moines. Its function is to work to protect Iowa’s natural environment. Heathcote held the position of Water Program Director and was responsible for researching environmental issues, advising the Environmental Council on policy, and representing it on advisory groups. Heathcote began working for the Council in 1996.
In May 2009, Governor Culver appointed Carrie La Seur to the Commission. Her appointment was also confirmed by the senate. She lived in Mount Vernon, Iowa, at the time of her appointment. La Seur is a lawyer and ran an organization called Plains Justice. She served as secretary of the Commission.
In July 2009, La Seur moved to Montana. Her husband was a professor at Cornell College in Mount Vernon, and she accompanied him when he left Iowa on a teaching sabbatical in Montana. La Seur, however, continued to own a home in Mount Vernon during the sabbatical and continued to serve on the Commission. She returned to Iowa for Commission meetings or appeared by telephone conference call.
La Seur obtained a Montana drivers’ license after moving and registered to vote in Montana in July 2009. She was previously registered to vote in Iowa. The sabbatical turned into a permanent move after La Seur’s husband accepted a job offer to work in Montana in January 2010.
Heathcote and La Seur served on the Commission during a critical period of time when it considered the adoption of rules to prevent the degradation of existing water quality of Iowa’s water resources. The United States Environmental Protection Agency (EPA) promulgated a regulation in 1983, which required states to adopt policies aimed at preventing degradation of existing water quality and consistent with federal criteria. See 48 Fed. Reg. 51, 400-01 (Nov. 8, 1983) (codified at 40 C.F.R. § 131.6 (2010)). The EPA promulgated the regulation pursuant to the Federal Water Pollution Control Act, which is better known as the Clean Water Act (CWA). See 33 U.S.C. § 1313(a)(3)(A) (2006) (requiring states to establish water quality standards). One component of a state’s water quality standards submission is “[a]n antidegradation policy consistent with § 131.12.” 40 C.F.R. § 131.6(d). For an antidegradation policy to be consistent with federal criteria, it must, at a minimum, maintain and protect certain existing uses of waterways. Id. § 131.12(a)(1). Iowa law similarly requires the Iowa Department of Natural Resources (IDNR), through the Commission, to “[establish, modify, or repeal water quality standards,
Iowa was slow to respond to the federal regulation, despite efforts by federal authorities over the years to spur Iowa to begin the implementation process. In July 2007, the IDNR finally initiated what ultimately would be a three-year process of adopting rules to implement the federal antidegradation program. The process began with a meeting between the individuals from the IDNR, Iowa Environmental Council, Iowa Chapter of the Sierra Club, Hawkeye Fly Fishing Association, and the Environmental Law & Policy Center. Two petitions for rulemaking with recommended antidegradation rules were subsequently submitted to the IDNR in support of the development of appropriate antide-gradation standards. The first petition was submitted in October 2007 by a coalition of water quality groups consisting of the Iowa Environmental Council, Iowa Chapter of the Sierra Club, and Hawkeye Fly Fishing Association. In June 2008, Iowa Farm Bureau Federation and other agribusiness and industrial interests filed a second petition for rulemaking that sought a different set of antidegradation standards. The antidegradation rules advocated in the first petition were generally more stringent than the rules advocated in the second petition.
Heathcote played an active role in her employment with the Iowa Environmental Council in developing the proposed rules submitted to the IDNR in the October petition by her employer and the other coalition groups. She was also active in pushing the IDNR to initiate the rulemak-ing process, and she remained involved in the process the IDNR followed after the petitions for rulemaking were filed. Heathcote was recognized as a lead person among the environmental groups advocating for the first petition.
The IDNR held numerous workshops and meetings with various stakeholders after the petitions were filed. It also solicited public comments and held various public hearings. Heathcote advocated in support of the first petition at all stages of the process.
After considering the petitions and the input provided by the rulemaking process, the IDNR drafted a proposed antidegradation rule for the state, as well as proposed implementation procedures. The proposed rules and procedures would eventually be submitted to the Commission for approval. The rules drafted by the IDNR differed from the rules proposed by the two petitions, but they were more closely aligned to the proposals in the first petition.
In December 2009, the Commission approved the final antidegradation rules and procedures by a vote of six to two. Heath-cote and La Seur voted to approve the rules, and one member of the Commission abstained.
The rules and procedures approved by the Commission were then approved by a legislative committee and submitted to the EPA for review and approval. Iowa’s an-tidegradation rules and procedures were approved by the EPA in September 2010.
In October 2010, Iowa Farm Bureau Federation and two other associations filed a petition for judicial review under section 17A.19 of the Iowa Administrative Procedure Act (LAPA).
In April 2011, the Commission filed a motion for summary judgment in response to the petition for judicial review. It claimed neither Heathcote nor La Seur was disqualified from voting as a matter of law. Farm Bureau responded to the motion by requesting time to reply so that it could pursue discovery of facts and information relevant to the summary judgment proceedings. It also moved to compel discovery from the Iowa Environmental Council, which had intervened in the case. Farm Bureau had previously obtained extensive documents and materials from the Commission, IDNR, and Iowa Environmental Council pursuant to subpoenas and other methods of discovery, but wanted additional production of internal records and documents relating to Heathcote’s employment and other activities related to her employment, as well as all other communications by Heathcote relating to the process and the adoption of the antidegra-dation rule. This request included emails and other communications between staff, attorneys, donors, and others. The Iowa Environmental Council claimed the discovery request sought confidential and protected information and was overly burdensome and largely unnecessary to resolve the substantive issues.
The district court denied the motion to compel discovery and granted the motion to quash filed by the Iowa Environmental Council. Farm Bureau eventually filed a resistance to the summary judgment motion and sought summary judgment on the issue involving the disqualification of La Seur.
The district court granted summary judgment for the Commission, denied summary judgment sought by Farm Bureau, and dismissed the petition. Farm Bureau appealed and raised three issues. First, it claims the district court erred by granting summary judgment prior to the close of discovery. Second, it claims the district court erred by granting summary judgment to the Commission on Farm Bureau’s claim that Heathcote had a conflict of interest that required vacating the antide-gradation policy. Finally, Farm Bureau contends the district court erred by granting summary judgment to the Commission regarding Farm Bureau’s claim that La-Seur’s registration to vote in Montana voided her status as an eligible Iowa elector and that she was in turn no longer qualified to serve on the Commission. Accordingly, Farm Bureau argues the district court also erred by not vacating the anti-degradation policy on this ground.
II. Scope of Review.
We review a decision to deny discovery by the district court for abuse of discretion. Kulish v. Ellsworth,
III. Discovery Prior to Summary Judgment.
The decision to deny or grant a continuance of a motion for summary judgment to pursue discovery lies within the discretion of the trial court. Kulish,
Although a continuance would ordinarily be appropriate in a case of this nature, it is clear the salient facts relevant to the claim that Heathcote was disquali
Importantly, the structural claim of a conflict of interest asserted by Farm Bureau was not based on hidden conduct by the Iowa Environmental Council or the IDNR. Instead, the claims squarely centered on a very open and visible dual role that Heathcote performed as an advocate and ultimate adjudicator. There were ample considerations to balance by the district court, and it was within the court’s discretion to deny discovery.
IV. Disqualification of Commissioner Heathcote.
The resolution of this case first requires a full understanding of the process followed in our government to implement regulations within the executive branch. At first blush, the idea of an individual serving as both an advocate and a decision-maker seems contrary to our general governmental approach. We must decide if this initial response rings true upon deeper inquiry into the rulemaking function of government.
Within our governmental structure, the IDNR is administered by a director appointed by the Governor, subject to senate confirmation. Iowa Code § 455A.3. The director serves at the pleasure of the Governor. Id. Generally, the director has the power and duty to administer the IDNR as provided by the legislature. Id. § 455A.4. Our legislature, however, also established the Environmental Protection Commission to perform certain overview responsibilities, including the duty to establish policy and rules for the effective administration of the IDNR. Id. § 455A.6(6)(a).
Consistent with most commissions within the executive branch of government, the Commission is composed of a citizen panel. This approach is part of the larger venerable governmental process of citizen participation and voice in our democracy that together with direct participation by publicly elected officials marks the strength and vibrancy of our democracy.
As a component of the executive branch of government, the members of the Commission are appointed by the Governor, subject to senate confirmation. Id. § 455A.6(1). The integrity and strength of citizen participation is established by the required composition of the membership of the Commission. All members must be electors of Iowa and all members must have knowledge of the subjects embraced under the governing laws. Id. More specifically, three members of the Commission must be actively engaged in livestock and grain farming, one member must be an active manager of a manufacturing company, and one member must be actively working in finance or commerce. Id. § 455A.6(l)(a), (6), (c). The remaining four members do not need any specific employment or background, other than to be an elector and have knowledge of the
The Governor may not make appointments to the Commission based on political considerations, other than to meet the general requirements for the membership of appointive boards and commissions in this state to satisfy the balance of political affiliation under Iowa Code section 69.16. Iowa Code § 455A.6(1). Yet, this statutory requirement does not infringe upon the prerogative of a governor to otherwise appoint individuals to a commission who may share the views of the governor on the subject matter of a commission or individuals who may even publicly advocate those views in their personal or professional life. All individuals who work in a particular discipline acquire special knowledge and develop perspectives and views about various issues. By requiring some members of the Commission to specifically work in certain areas and by requiring all members to have special knowledge of the subject matter of the Commission, the legislative scheme appears to contemplate that individual views, perspectives, and knowledge are desired strengths.
Moreover, a governor, as the top-elected representative of the people, has always had the ability to shape the overall perspective and direction of commissions through the power of appointment. Thus, the “political considerations” excluded from the appointment process by statute do not normally extend to the ability of a governor to appoint commission members who have particular views about subjects expected to come before a commission that may be consistent with the views of the governor or the political party of the governor. Instead, this concept reflects the basic nature of governing through public elections and is deeply embedded within the executive and legislative branches of government.
This background does not undermine or oppose the claim asserted by Farm Bureau in this case that Heathcote should have been disqualified. Instead, it permits it. See id. § 17A.19. One of the specific grounds for judicial review of agency action permits courts to grant relief from an action taken by an agency when it was “[t]he product of decision making undertaken by persons who were improperly constituted as a decision-making body, were motivated by an improper purpose, or were subject to disqualification.” Id. § 17A.19(10)(e). Accordingly, Farm Bureau uses the IAPA to frame its core claim that its rights were prejudiced by the Commission action in this case because Heathcote was “motivated by an improper purpose” and should have been disqualified from voting. Id.
The claim by Farm Bureau that the Commission rulemaking action was motivated by an improper purpose and was subject to disqualification is based on the dual role of Heathcote as a strong and active advocate, both personally and on behalf of her employer, before the IDNR at the same time as she was a member of the Commission that would ultimately be responsible to approve an antidegradation rule developed by the IDNR. More specifically, Farm Bureau argued the actions of Heathcote violated the conflict-of-interest statute that restricts outside employment and activities by a person who is employed by the state or otherwise serves the state. See id. § 68B.2A(l)(a), (b). This statute prohibits a state employee or other person serving the state from engaging in outside employment or activity that conflicts with the person’s official duties and responsibilities. See id. § 68B.2A(1).
We have in the past determined that a statutory conflict can serve to disqualify the vote of a member of a governmental council or commission. Wilson v. Iowa City,
Farm Bureau avers section 68B.2A(l)(a) and (b) provides the applicable statutory standard for the disqualification of Heath-cote in this case. Yet, unlike the underlying statute in Wilson, section 68B.2A does not prohibit members of commissions from voting if they have an unacceptable conflict as defined in subsections (l)(a) and (6); instead, it merely requires the official to “cease the employment or activity.” Iowa Code § 68B.2A(2)(2009). This is not to say section 68B.2A does not support disqualification of those officials who have
We also recognize chapter 68B includes a specific ban on lobbying by state officials before certain boards. Id. § 68B.5A; see City of Des Moines v. City Dev. Bd.,
However, a member of a board or a commission does not fall into any of these statutory categories. A member of a board or commission is an “official,” a term that consists of a specific enumeration of positions. Id. § 68B.2(17). Notably, many of the individuals who constitute the class of “officials” are identified in the outright ban on lobbying contained in section 68B.5A(1), with the notable exceptions of the heads of major subunits of departments or agencies and members of boards or commissions. See id. § 68B.5A(1). Of course, the heads of major subunits are barred from a narrower scope of lobbying — lobbying before their agency or an agency they regularly contact — in section 68B.5A(2). See id. § 68B.5A(2). Yet, the first two subsections do not mention members of boards or commissions. See id. § 68B.5A(1), (2). Furthermore, a “[sjtate employee” is not an “official.” Id. § 68B.2(25). Thus, the narrowest ban on lobbying contained in section 68B.5A(3) does not apply to members of boards or commissions. In construing section 68B.2A as identified by Farm Bureau, we cannot ignore the more specific statute on point that does not prohibit lobbying by members of boards or commissions.
Of course, many of the general principles identified in Wilson remain applicable. As Farm Bureau points out, Wilson recognized many conflict-of-interest statutes “are merely declaratory of the common law.”
Conflict-of-interest rules, “whether common law or statutory, are based on moral principles and public policy.” Wilson,
We begin by examining the nature of agency rulemaking. The standard of disqualification based on a conflict of interest would not necessarily be the same in every type of agency action. Generally, agency action encompasses the product of rule-making, contested cases, and other agency action. Smith v. Iowa Bd. of Med. Exam’rs,
a proceeding including but not restricted to ratemaking, price fixing, and licensing in which the legal rights, duties or privileges of a party are required by Constitution or statute to be determined by an agency after an opportunity for an evi-dentiary hearing.
Iowa Code § 17A.2(5). In contrast, rule-making is the “process for adopting, amending, or repealing a rule.” Id. § 17A.2(12). A rule is a “statement of general applicability that implements, interprets, or prescribes law or policy.” Id. § 17A.2(11). A rule is not, however, “[a] determination, decision, or order in a contested case.” Id. § 17A.2(ll)(d). Section 17A.2 thus creates an irreducible dichotomy between rulemaking and contested cases. The importance of this dichotomous relationship is fully revealed by the facts of this case.
The diverse forms of agency action necessitate different standards of review depending on the agency action and the context of the challenge. See Iowa Code § 17A.19(10). We have also said the distinction between forms of agency action is important for determining the amount of “due process afforded to parties.” Greenwood Manor v. Iowa Dep’t of Pub. Health,
The Cinderella standard is generally compatible, not only to the standard employed in Wilson, but the standard we have applied in the context of contested cases as well. See Anstey v. Iowa State Commerce Comm’n,
As here employed the term “bias” means adverse, preconceived mental attitude or disposition, toward a party to a controversy, of such weight and nature as to materially impair or destroy that impartiality essential to a fair hearing. It does not relate to views entertained regarding the subject matter involved ....
Cedar Rapids Steel Transp., Inc. v. Iowa State Commerce Camm’n,
Anstey itself recognized that comments generally suggestive of a particular policy position do not require disqualification in the adjudicatory context. See
Van Nostrand’s statements at the Energy Policy Council that few objections are good, that most objectors are motivated by financial considerations and that most objectors merely want the lines to cross other peoples’ property, while they might be interpreted as leaning toward the general view that electrical transmission franchises should be extended, are not shown to be directly referable tothis particular line or to the objections to it.
Id. at 890. Thus,
taking a position, even in public, on a policy issue related to the dispute does not disqualify a decision maker. In order to disqualify him, it must be shown “that he is not capable of judging a particular controversy fairly on the basis of its own circumstances.”
Id. (quoting Hortonville Joint Sch. Dist. No. 1 v. Hortonville Educ. Ass’n,
Notwithstanding, a rulemaking is different from a contested case and follows a different standard for disqualification. Ass’n of Nat’l Advertisers, Inc. v. FTC,
In a rulemaking, agencies are expected to “allocate resources more efficiently, act with greater speed, and give specific notice to industries of the scope” of the proposed rule. Ass’n of Nat’l Advertisers,
Thus, “[t]he Cinderella view of a neutral and detached adjudicator is simply an in-apposite role model for an administrator who must translate broad statutory commands into concrete social policies.” Id. at 1168-69. Due process in a rulemaking does not “impose judicial roles upon administrators when they perform functions very different from those of judges.” See id. at 1168. Consequently, the Association of National Advertisers standard will disqualify a commissioner “only when there has been a clear and convincing showing that the agency member has an unalterably closed mind on matters critical to the disposition of the proceeding.” Id. at 1170.
The D.C. Circuit has uniformly applied this standard to challenges to informal rulemaking proceedings asserting an administrator should have recused himself or herself. See Air Transp. Ass’n of Am., Inc. v. Nat’l Mediation Bd.,
The D.C. Circuit’s standard is based in part upon a pair of century-old United States Supreme Court cases that distinguished between administrative proceedings that resemble legislative action and proceedings that resemble adjudicatory action. See Ass’n of Nat’l Advertisers,
In the assessment, apportionment, and collection of taxes upon property within their jurisdiction, the Constitution of the United States imposes few restrictions upon the states.... But where the legislature of a state, instead of fixing the tax itself, commits to some subordinate body the duty of determining whether, in what amount, and upon whom it shall be levied, and of making its assessment and apportionment, due process of law requires that, at some stage of the proceedings, before the tax becomes irrevocably fixed, the taxpayer shall have an opportunity to be heard, of which he must have notice, either personal, by publication, or by a law fixing the time and place of the hearing.
Id. at 385-86,
By contrast, in Bi-Metallic Investment Co., the Colorado Tax Commission and State Board of Equalization adopted a substantial uniform tax increase.
Where a rule of conduct applies to more than a few people, it is impracticable that everyone should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole. General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule.
Id. at 445,
Decisions by federal courts interpreting the Federal Administrative Procedure Act are persuasive in our interpretation of the IAPA. See Iowa Citizen/Labor Energy Coal, Inc. v. Iowa State Commerce Comm’n,
After all, the IAPA presupposes a number of significant differences between rule-makings and contested cases. For example, the IAPA specifically prohibits ex parte communications in contested cases. Iowa Code § 17A.17(1)(a). Yet, the rule is silent on ex parte contacts in informal rulemakings. See id. This suggests the legislature was not as concerned with ex parte contacts in informal rulemakings. This conclusion is consistent with the approach taken by federal courts when determining whether ex parte agency contacts during informal rulemakings violate the Federal Administrative Procedure Act. See Ass’n of Nat’l Advertisers,
Chapter 17A similarly provides a disqualification standard for administrators acting in contested cases but not informal rulemakings. See Iowa Code § 17A.11(2). The absence of a statutory standard for disqualification in the rulemaking context is instructive. See Ass’n of Nat’l Advertisers,
In this regard, chapter 17A suggests a virtual absence of due process in the context of rulemakings. See Greenwood Manor,
In this case, the Commission acts under a delegation of authority from the legislature, see Iowa Code § 455A.6(6), which from a theoretical standpoint the Commission shares with the governor, see Iowa Const, art. IV, § 1 (vesting “supreme executive authority” in the governor); id. art. IV, § 9 (providing that the governor “shall take care that the laws are faithfully executed”). As a consequence, section 455A.6 represents a broad mandate of authority to the Commission, which oversees overwhelming complex and technical subject matter. This, of course, is consonant with one obvious, general purpose of administrative agencies within the modern regulatory state: the subjects of regulation are justifiably numerous and complex, and the importance of an administrator’s legal, technical, and scientific expertise cannot be understated. The commissioners are not mere functionaries of the legislative will; rather, they are executive officers who exercise sound discretion within the policy-making guidelines the legislature has provided them. Accordingly, it is understandable the Governor (and the Iowa Senate, which unanimously confirmed Heathcote based on her outstanding credentials) would have viewed the expertise Heathcote could bring to the antidegradation policy rulemaking as indispensable. See Ass’n of Nat’l Advertisers,
Similarly, we cannot forget that the legislature, like Congress, “is not confined to that method of executing its policy which involves the least possible delegation of discretion to administrative officers.” Fates v. United States,
We recognize, however, as the D.C. Circuit did, that some limited conception of due process should accompany informal rulemaking. We understand that meaningful judicial review requires some narrow opportunity to challenge an administrator for bias. We note, of course, a commissioner acting in a rulemaking “is presumed to be objective and ‘capable of judging a particular controversy fairly on the basis of its own circumstances.’ ” United Steelworkers,
“This showing should focus on the agency member’s prejudgment, if any, rather than a failure to weigh the issues fairly.” C & W Fish Co.,
Indeed, environmental statutes themselves often presume a certain amount of institutional bias. See Env’tl Def. Fund v. Corps of Eng’rs,
“A Trade Commissioner should not be neutral on antimonopoly policies, and a Securities and Exchange Commissioner should not be apathetic about the need for governmental restrictions.
The theoretically ideal administrator is one whose broad point of view is in general agreement with the policies he administers.”
Lead Indus. Ass’n,
Turning to the facts of this case, Farm Bureau emphasizes Heathcote’s preexisting support for and advocacy of a robust antidegradation policy. Indeed, at all times during the rulemaking proceedings, Farm Bureau argues, Heathcote actively advocated for the antidegradation policy’s adoption. It bolsters this argument by pointing out a number of similarities between the Iowa Environmental Council’s proposed rule, which Heathcote helped draft, and the final rule adopted by the Commission. Farm Bureau also maintains Heathcote’s salary was a factor — asserting Heathcote’s job duties included “paid advocacy” and likening her to a lobbyist.
We observe that a similar challenge was rejected in Lead Industries Association. See
The court observed that no other court had ever — under any standard — disqualified an administrator from participating in an informal rulemaking proceeding on the basis of policy bias. Id. at 1179. The court concluded that “under the prejudgment test for rulemaking in [Association of National Advertisers ] ... there can be no question but that [the administrator’s] disqualification from the lead standards rulemaking is unwarranted.” Id. at 1180.
Here, evidence supports a conclusion that Commissioner Heathcote had a preconceived position about the value of a muscular antidegradation policy. As Farm Bureau points out, she was involved in drafting policy for the Iowa Environmental Council and was instrumental in drafting the 2007 rulemaking petition. We also agree that the final rule adopted by the Commission was similar in some key aspects to the proposed rule by the Iowa Environmental Council. Nevertheless, the similarities or differences are not evidence of bias. See Consumers Union,
We recognize factual distinctions exist between this case and Lead Industries Association. First, Heathcote’s participation both in crafting the policy before being nominated to the Commission and during the rulemaking proceedings was likely greater than the administrator’s in Lead Industries Association. See
Second, and perhaps more importantly, Heathcote continued her employment with the Iowa Environmental Council. Yet, we are not persuaded that this would be a dispositive distinction. The Commission contains built-in policy conflicts of interest. The statute provides five of the nine commissioners must be actively engaged in or employed in — and thereby presumably represent — certain industries that might conceivably be subject to regulation by the Commission. See Iowa Code § 455A.6(1). It would be anomalous to conclude that the other four commissioners would not similarly be expected to bring with them both policy experience and preconceived policy positions. To paraphrase Justice Rehnquist: Susan Heathcote’s years of experience and continued employment as Water Policy Director for the Iowa Environmental Council are the source of indispensable qualifications, not the source of disqualifying bias. See Laird v. Tatum,
Accordingly, we hold Commissioner Heathcote’s employment with the Iowa Environmental Council — including her job duties of policy research and advocacy — do not require us to vacate the antidegradation policy. The process of rulemaking simply does not give rise to the standard of disqualification urged by Farm Bureau.
V. Disqualification of Commissioner La Seur.
The Commission concedes La Seur was not an eligible elector on December 15, 2009, when the Commission voted to adopt the antidegradation policy.
A. De Facto Officer Doctrine. The de facto officer doctrine validates official action taken without legal authority by giving authority to an official who lacks de jure authority to take official action. See Allen v. State,
At its core, the doctrine limits the ability of a plaintiff “to challenge governmental action on the ground that the officers taking that action are improperly in office.” Andrade v. Lauer,
distinguishes between “collateral” attacks, in which plaintiffs attack government action on the ground that the officials who took the action were improperly in office, and “direct” attacks, in which plaintiffs attack the qualifications of the officer, rather than the actions taken by the officer.
Id. at 1496.
Moreover, “the doctrine gives no weight to the public interest in enforcing legal norms concerning eligibility and appointment to office and individuals’ interests in having the government act against them only through lawfully appointed agents.” Andrade,
The doctrine “applies where a qualified official, by technical infirmity, does not validly hold the official position.” Windsor Heights,
In order to support the acts of one on the ground that he is a de facto officer, they must be done under color of the office, the duties of which must have been assumed and discharged by the person claiming to fill the office.
Bailey v. Fisher,
In the past, we have applied the doctrine to a variety of defects in official title. Some instances in which we have applied the doctrine have surely been minor technical infirmities of those who otherwise clearly had color of title to their office. See State v. Sheets,
In each of these cases, the application of the doctrine was obvious. Yet, we have never downplayed the importance of the requisite qualification for officials to act. For example, we have not ignored the importance of officials taking the oath of office. See Grimes Indep. Sch. Dish,
We have also applied the doctrine to more serious errors in election or appointment. See State v. Cent. States Elec. Co.,
Furthermore, we have opined that the doctrine could validate the acts of a quasi-official when the public relied on the official’s consistent assertions of authority. See Buck,
Similarly, federal courts have applied the doctrine to pure challenges to the constitutional propriety of an appointment or what has been called attempts to “en-forc[e] legal norms concerning eligibility and appointment to office.” Andrade,
[T]he question presented is certainly a very serious one: For, if this court is authorized to enter upon this inquiry as proposed by the plaintiff, and it should be decided that the charter government had no legal existence during the period of time above mentioned, — if it had been annulled by the adoption of the opposing government, — then the laws passed by its legislature during that time were nul-lities; its taxes wrongfully collected; its salaries and compensation to its officers illegally paid; its public accounts improperly settled; and the judgments and sentences of its courts in civil and criminal cases null and void, and the officers who carried their decisions into operation answerable as trespassers, if not in some cases as criminals.
Id. at 38-39,
Historical application of the doctrine— both inside and outside of this state—
However, the doctrine has its limits. For example, we have recognized it does not apply to a third person who “is chargeable with the knowledge of the defect in the title of a claimed officer to his office.” Heyland v. Wayne Indep. Sch. Dist. No. 5,
A very important factor in the application of the de facto officer doctrine can be drawn from two cases we decided involving peace officers who had arrested persons for the crime of operating a motor vehicle while intoxicated prior to the time they had completed all the required law enforcement training. In State v. Palmer, we held a peace officer who had not completed the required statutory course of instruction relating to the processing of drivers suspected of operating a motor vehicle while intoxicated was not a de facto officer for purposes of invoking the implied-consent statute.
In contrast, in Driscoll, a peace officer had completed the required implied-consent training, but had not yet completed a psychological evaluation required for all peace officers prior to employment.
These two cases make it very clear that the de facto officer doctrine is not applied when the particular disqualification at issue undermines the integrity and confidence demanded in actions taken or decisions made by government. See Clokey, 85 Colum. L.Rev. at 1135 (“Although the de facto officer doctrine generally denies individuals an interest in enforcing title requirements, the doctrine should not apply when a qualification for specific office aims to protect the individuals subject to that official’s authority.”). In Palmer, the lack of qualifications threatened the basic objective of the implied-consent procedures, but the lack of qualifications in Driscoll did not. When the disqualification does not undermine the integrity and confidence of the action taken or the decision made by government, it would be contrary to the public good to allow the action to be collaterally attacked. Dris-coll,
This approach is also consistent with the approach taken by other courts and commentators. One commentator has said:
When a court considers a collateral title challenge, it should discern the policies embodied in the particular requisite to office and determine whether they are designed to protect the interests of individuals appearing before such officers or to protect the administration of government.
See Clokey, 85 Colum. L.Rev. at 1138. Other courts follow this model. See Fair Political Practices Comm’n v. Californians Against Corruption,
This approach also resembles the rule of the United States Supreme Court decision in Glidden Co. v. Zdanok, which indicated the de facto officer rule did not apply when the qualification for an officer embodied “a strong public policy” concerning the proper administration of government or was “based upon nonfrivolous constitutional grounds.”
If the statute made him incompetent to sit at the hearing, the decree in which he took part was unlawful, and perhaps absolutely void, and should certainly be set aside or quashed by any court having authority to review it by appeal, error, or certiorari.
Similarly, the Supreme Court has held: [0]ne who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case is entitled to a decision on the merits of the question and whatever relief may be appropriate if a violation indeed occurred.
Ryder,
In this case, it is difficult to discern with precision the underlying objective or policy the legislature had in mind in imposing the requirement for commissioners to be electors. The legislature could have wanted Commission members to be electors in order to help determine with greater accuracy the required political balance for the Commission, to help ensure members were engaged Iowa citizens, in order to help ensure members were connected by residency to Iowa, or other reasons. Overall, the reasonableness of the requirement is likely derived from the perspective that the state would not want Commission members with little or no contact to the state making rules governing Iowans. Thus, it is reasonable to view the purpose of the requirement as consistent with this perspective. Nevertheless, there is nothing to suggest the elector requirement was designed to protect individuals who may be subjected to the authority of a public official or to protect the orderly administration of government.
Importantly, La Seur was an elector when appointed to the Commission. This is important because the policy of the requirement was clearly satisfied in the inception. While La Seur subsequently lost her status as an elector when she moved from the state, the move did not totally undermine the objectives of the requirement that were initially met. The move did not eviscerate her background and qualifications. Moreover, the challenged vote cast by La Seur occurred only five months after she left Iowa, and the vote took place at a time when she still owned a home in Iowa. It is very difficult to see, in reality, how La Seur was less fit to consider the rule adopted by the Commission five months after she left the state when she continued to participate in every Commission hearing in person or by telephone. The facts of this case fall well short of those in Palmer, in which the officer was never properly trained to perform the task at issue in the first place and the purpose of the statutory qualifications were undermined by the failure to qualify. Instead, the facts fit more with Driscoll.
It is also important to keep in mind that the qualifications to be an elector do not exist for the benefit of an individual or to protect an individual from the authority of a public officer. Additionally, the case does not implicate any constitutional challenge. The Commission serves all Iowans, and the action sought to be declared invalid by Farm Bureau would affect all Iowans. The very purpose of the de facto officer doctrine is to ensure the orderly function of government despite defects in the qualifications of an officer when the defects are minor or technical. Ryder,
In truth, the public policy behind the de facto officer doctrine is found throughout government. For example, in the area of criminal prosecution, we do not reverse a conviction in a criminal case on appeal merely because a legal error occurred at trial. See State v. Peterson,
The situation presented in this case is comparable to that of an elected official who fails to properly take the oath of office. For 150 years, we have rejected every claim that government action must be invalidated when an official failed to properly take the oath of office. See Sheets,
Finally, we have previously applied the de facto officer doctrine to residency requirements of a kind. See Rich Mfg. Co. v. Petty,
Our result in Rich Manufacturing is in accord with many other courts considering whether the de facto officer doctrine applies to elector and residency requirements. See, e.g., Gwin v. State,
In the final analysis, the practical nature of the de facto officer doctrine supports our conclusion to uphold the validity of the Commission action taken in this case. The only real support for a contrary conclusion is found in the failure of La Seur to maintain her required status as an elector. Yet, the de facto officer doctrine exists to validate official action when an underlying requirement is not satisfied. Thus, the mere failure to qualify is not enough. Moreover, the disqualification in this case did not undermine the integrity and confidence in the process followed by the Commission or in the Commission decision. When La Seur lost her status as an elector, the loss did not render her unqualified to do her job.
We understand a different scenario or fact situation can be proposed that would render the application of the de facto officer doctrine inappropriate. Such a proposition, however, does not serve to undermine the appropriate application of the doctrine under the facts of this case. Thus, we confine our analysis to the facts of this case, as we are required to do, and apply the law consistently with its application in the past. The de facto officer doctrine has served a valid role in maintaining the government process since the earliest years of our statehood, and it continues to do so today.
B. Amendment to IAPA. We
next turn to the argument by Farm Bureau that the 1998 amendments to the IAPA abrogated the de facto officer doctrine. The IAPA establishes the exclusive means for a person or party adversely affected by agency action to seek judicial review. Iowa Code § 17A.19. Prior to 1998, the Act permitted a court to reverse or grant other relief from agency action when, among other reasons, it was “[a]f-fected by other error of law.” See Iowa Code § 17A.19(8)(e) (1997). In 1998, the statute was amended to require a court to reverse, modify, or grant other relief when “[t]he product of the decision making undertaken by persons who were improperly constituted as a decision-making body, were motivated by an improper purpose, or were subject to disqualification” if the court determines the infirmity in the agency action “prejudiced” the “substantial rights” of the person seeking judicial relief. 1998 Iowa Acts ch. 1202, § 24 (codified at Iowa Code § 17A. 19(10)(e) (2011)). The gist of Farm Bureau’s argument is that the de facto officer doctrine is now incompatible with section 17A.19(10)(e), and has been abolished by implication.
Yet, “[c]onstitutional or statutory provisions do not repeal the common law by implication unless the intention to do so is plain.” Iowa Civil Liberties Union v. Critelli,
“To the contrary, the legislature will be presumed not to intend to overturn long-established principles of law, and the statute will be so construed, unless an intention to do so plainly appears by express declaration or necessary or unmistakable implication, and the language employed admits of no other reasonable construction.”
Ritter v. Dagel,
In this case, there is simply no indication the legislature intended to abolish the de facto officer doctrine when it amended section 17A.19 (10) (e). Section 17A.19 (10) (e) does not mention the de facto officer doctrine, and we recognize the legislature certainly understands the venerable role of the de facto officer doctrine that has been embedded throughout our law. For example, in the area of disputes over title to land, it specifically applied the doctrine by providing:
In all actions and controversies involving the question of title to a parcel held under a county treasurer’s deed, all acts of assessors, treasurers, auditors, supervisors, and other officers de facto shall be of the same validity as acts of officers de jure.
Iowa Code § 448.14 (emphasis added). Considering the historical presence of the de facto officer doctrine in our law, it is very unlikely the legislature would have intended to uproot and abrogate it by simply identifying the grounds for judicial review in greater specificity.
We also think it is significant that the leading authority on administrative procedure law did not mention any claim or theory in his treatise on the Act following the 1998 amendments to indicate the amendments were intended to abrogate the de facto officer doctrine. In fact, Professor B onfield’s comment on the amended section 17A.19(10)(e) was limited to a single sentence: “Paragraphs (d) and (e) are beneficial, clarifying elaborations of current IAPA § 17A.19(8) paragraphs (d)(e).” Arthur E. B onfield, Proposed New Iowa Administrative Procedure Act (SF 2WI) with Comments by Reporter-Drafts
In contrast, in Estate of Woodroffe, we reasoned that the drafters of the 1984 Model Business Corporation Act (upon which our legislature based the Iowa Act) expressly stated “they intended to do away with the de facto corporation concept through provisions mirroring” Iowa Code sections 490.203 and 490.204.
Finally, our rule that presumes the legislature intended to change legal rights and construction of statutory terms
“The legislature is presumed to know the prior construction of terms in the original act, and an amendment substituting a new term or phrase for one previously construed indicates that the judicial or executive construction of the former term or phrase did not correspond with the legislative intent and a different interpretation should be given the new term or phrase. Thus, in interpreting an amendatory act there is a presumption of change in legal rights. This is a rule peculiar to amendments and other acts purporting to change the existing statutory law.”
State ex rel. Palmer v. Bd. of Supervisors,
In this case, the legislature merely identified specific challenges to agency action in the amendments to section 17A.19(8)(e), some of which may overlap challenges considered under the de facto officer doctrine as not serious enough to warrant overturning the official action that is challenged. The statute only directs the court to grant relief from an agency decision by a person who was disqualified when substantial rights of the petitioner were prejudiced because of the infirmity. This standard, as we have identified, is entirely consistent with the standard governing the de facto officer doctrine. Compare Iowa Code § 17A.19(10) and City of Des Moines v. Pub. Emp’t Relations Bd.,
VI. Conclusion.
The district court did not err by granting summary judgment to the Commission regarding both Heathcote’s and La Seur’s participation. The district court also did not err by granting summary judgment without affording Farm Bureau an opportunity to obtain the internal emails from the Iowa Environmental Council regarding the scope of Heathcote’s job function. Accordingly, we affirm the decision of the district court.
AFFIRMED.
Notes
. The petitioners will be collectively referred to in this opinion as Farm Bureau.
. That section provided, in relevant part:
No public official or employee of a municipality, or board or commission thereof ... shall voluntarily acquire any personal interest, direct or indirect, in any urban renewal project, or in any property included or planned to be included in any urban renewal project of such municipality, or in any contract or proposed contract in connection with such urban renewal project.... If any such official, commissioner or employee presently owns or controls, or has owned or controlled within the preceding two years, any interest, direct or indirect, in any property which he knows is included or planned to be included in an urban renewal project, he shall immediately disclose this fact in writing to the local governing body, and such disclosure shall be entered upon the minutes of the governing body; and any such official, commissioner or employee shall not participate in any action by the municipality, or board or commission thereof, or urban renewal agency affecting such property.
Iowa Code § 403.16.
. A current component of the Code of Judicial Conduct requires a judge to “disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.” Iowa Ct. R. 51:2.11(A).
. While Home Box Office expresses limits on this principle, a subsequent panel backed away from its proposed limits. See Action for Children's Television v. FCC,
. Because the Commission concedes La Seur's lack of qualifications, we need not decide whether she was actually an "elector” at the time the Commission voted to adopt the antidegradation policy.
. The distinction the de facto officer doctrine draws is itself distinct from the more commonly used meanings of "direct” and "collateral,” as used, for instance, in the context of whether a new constitutional rule applies retroactively. See, e.g., State v. Ragland,
In contrast, the direct-collateral distinction in the context of the de facto officer doctrine refers to the object of the attack — the officer’s qualifications to hold office or the official action that is the result of the officer's actions. In other words, instead of the "when” or "where” of a challenge, the direct-collateral distinction focuses in the de facto officer context on the "what” of the petitioner's challenge. In Windsor Heights, for example, we applied the de facto officer doctrine to a challenge to the authority of the city attorney to prosecute a traffic case on direct review from the defendant’s conviction.
. Of course, La Seur herself might have been put on notice that she lost her elector status by registering to vote in Montana. See Millwright v. Romer,
[s]ince the primary purpose of the doctrine is to protect the public and the government agencies which act in reliance on the validity of an officer's actions, the fact that the officer himself knew or should have known that he lacked official authority would not be dispositive of the issue. More directly pertinent is the appearance to others at the time.
EEOC v. Sears, Roebuck & Co.,
. The previous version of the statute permitted reversal of an agency decision when it was "(d) [m]ade upon unlawful procedure” or "(e) [a]ffected by other error of law.” Iowa Code § 17A. 19(8) (1997).
. We recognize many issues are presented by the amendments to the IAPA, but these issues do not impact the de facto officer doctrine. We need not determine the precise meaning of "improperly constituted." Iowa Code § 17A.19(10)(e). After all, our inquiry today is only whether a clear legislative intent to overrule a century-and-a-half of caselaw plainly appears. See Ritter,
Interestingly, section 455A.6(5) itself provides that ‘‘[a] majority of the members of the commission is a quorum, and a majority of a quorum may act in any matter within the jurisdiction of the commission, unless a more restrictive rule is adopted by the commission.” Iowa Code § 455A.6(5) In this case, all nine members of the Commission were present at the vote regarding the antidegradation policy. Clearly, a quorum existed. Similarly, section 455A.6 itself would seemingly only require five votes in favor of the antide-gradation policy. See id. § 455A.6(1). Because we have determined Heathcote’s vote in favor of the rule was not improper, any inquiry into whether La Seur’s participation was acceptable is conceivably moot. In this way, Farm Bureau’s "substantial rights ... have [not] been prejudiced.” Iowa Code § 17A. 19(10); see also City of Des Moines v. Pub. Emp't Relations Bd.,
Concurrence Opinion
(concurring in part and dissenting in part).
I respectfully concur in part and dissent in part. I agree with the majority’s conclusion that Commissioner Heathcote’s position with an environmental organization did not disqualify her from voting on the antidegradation rules promulgated by the Environmental Protection Commission. The statute creating the Commission provides that a majority of the commissioners will be actively engaged in activities directly affected by environmental regulations. See Iowa Code § 455A.6(l)(a)-(c) (2009).
I disagree, however, with the majority’s conclusion as to Commissioner La Seur. The law requires every commissioner to be an “elector[ ] of the state.” Id. § 455A.6(1). It is undisputed La Seur lost that status when she moved to Montana and registered to vote in Montana. Yet, she continued to serve on the Commission, traveling back to Iowa to vote in favor of the antidegradation rules.
This is not some mere technicality. As the majority emphasizes in the Heathcote portion of its opinion, the Commission has a “broad mandate of authority” and engages in “policy rulemaking” for Iowa. Thus, it is fair and reasonable for the legislature to require that its members be Iowans. As I discuss below, the same requirement applies to all elected state and local officials in Iowa, and all judicial officers, as well as certain other boards
The majority acknowledges that La Seur ceased to be qualified to serve once she moved to Montana, but nonetheless upholds her participation based on the de facto officer doctrine. According to the majority’s view of the de facto officer doctrine, the only way to stop an unqualified public official from voting or acting is to bring a quo warranto proceeding to get her or him removed. Meanwhile, while such a proceeding works its way through the courts, the official can continue to vote or act, and affected citizens have no remedy.
I think this is wrong. The legislature corrected this unfairness and narrowed the de facto officer doctrine when it adopted the 1998 amendments to the Iowa Administrative Procedure Act (IAPA), Iowa Code ch. 17A. See 1998 Iowa Acts ch. 1202, § 24 (codified at Iowa Code § 17A.19(10) (2001)). While the de facto officer doctrine may still preclude collateral attack on a past agency action, since 1998 a party may seek direct review of agency action on the ground that one or more decision-makers should have been disqualified. Specifically, Farm Bureau can challenge the Commission’s action under Iowa Code section 17A.19(10)(e) (2009) as “[t]he product of decision making undertaken by persons who were improperly constituted as a decision-making body ... or were subject to disqualification.” The majority disregards that amendment to the IAPA. I would hold that because La Seur was disqualified from voting and the Commission was improperly constituted with her participating, the antidegradation rules are void.
The majority’s use of the de facto officer doctrine — to uphold a vote after La Seur moved her residence to Montana — undermines a variety of residency requirements in the Iowa Code and Constitution.
As the majority points out, the Commission was exercising a quasi-legislative function when engaged in rulemaking.
The important purposes served by residency requirements have been noted in many court decisions. See, e.g., Woodward v. City of Deerfield Beach,
But, the fundamental problem with the majority’s opinion is that it conflicts with the IAPA.
if substantial rights of the petitioner ha[d] been prejudiced because the agency action [was]:
a. In violation of constitutional or statutory provisions;
b. In excess of the statutory authority of the agency;
c. In violation of an agency rule;
d. Made upon unlawful procedure;
e. Affected by other error of law;
f. In a contested case, unsupported by substantial evidence in the record made before the agency when that record is viewed as a whole; or
g. Unreasonable, arbitrary or capricious or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.
Iowa Code § 17A.19(8) (1997). Significantly, however, in the 1998 amendment, the following language was added:
The court shall reverse, modify, or grant other appropriate relief from agency action, equitable or legal and including declaratory relief, if it determines that substantial rights of the person seeking judicial relief have been prejudiced because the agency action is any of the following:
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e. The product of decision making undertaken by persons who were improperly constituted as a decision-making body ... or were subject to disqualification.
See 1998 Iowa Acts ch. 1202, § 24. La Seur was subject to disqualification once she moved to Montana.
The 1998 amendment to the IAPA renders irrelevant the majority’s lengthy discussion of the history and development of the common law de facto officer doctrine in Iowa and the federal courts. The 1998 amendment to the IAPA expressly allows parties to challenge and empowers courts to review agency action that previously would have been upheld under the common law de facto officer doctrine. The majority notes that, historically, we have “applied the [de facto officer] doctrine to ... errors in election or appointment.” However, none of the cases cited by the majority address an improperly constituted decision-making body or member subject to disqualification after the 1998 amendments to the IAPA. Those cases cited by the majority predated the 1998 amendment and are no longer apposite. See, e.g., State v. Cent. States Elec. Co.,
The majority’s interpretation renders part of section 17A.19(10)(e) without effect, contrary to our canons of construction. See Bearinger v. Iowa Dep’t of Transp.,
Rather, the majority concludes the de facto officer doctrine survives the 1998 amendment because that term is not mentioned in section 17A.19(10)(e). Yet, as the majority acknowledges, we presume amendments to statutes alter the law. See Postell v. Am. Family Mut. Ins. Co.,
The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this Code. Its provisions and all proceedings under it shall be liberally construed with a view to promote its objects and assist the parties in obtaining justice.
Iowa Code § 4.2.
Farm Bureau’s challenge is the exact situation contemplated by the statute. There is no question that La Seur, at the time of the action in question, was subject to disqualification under Iowa Code section 455A.6(1). The parties agree she was no longer an Iowa elector at the time of the vote in question. Therefore, I would conclude the decision-making body was improperly constituted with her voting participation. See Iowa Code § 455A.6(1) (requiring all Commission members to be electors of the State of Iowa).
Next, Farm Bureau has shown its “substantial rights” were prejudiced by La Seur’s act of voting while disqualified. See Iowa Code § 17A.19(10) (“The court shall reverse, modify, or grant other appropriate relief from agency action, equitable or legal and including declaratory relief, if it determines that substantial rights of the person seeking judicial relief have been prejudiced-”). We have described the “substantial rights” language as follows:
We have found this “substantial rights” language analogous to a harmless error rule. We recognize the commissioner’s action “should not be tampered with unless the complaining party has in fact been harmed.” This form of analysis is appropriate because it would be inefficient for us to provide relief from invalid agency action when the particular invalidity has not prejudiced the substantial rights of the petitioner. Therefore, [the complainant] bears the burden of demonstrating both the invalidity of the agency’s action and resulting prejudice.
Hill v. Fleetguard, Inc.,
Prejudice is easily established here. We have long held that a vote is invalid when one member of a voting body should have been disqualified from voting, even when the tainted member’s vote is not decisive. See, e.g., Wilson v. Iowa City,
La Seur’s participation while disqualified may have influenced the opinion of the other members, and in the very least, it casts suspicion on the decision. As in Wilson, it is impossible for us to know the exact impact of La Seur’s participation. The Iowa cases relied upon by the majority for the de facto officer doctrine predated both Wilson and the IAPA.
The majority, by denying Farm Bureau’s challenge raised on direct review, renders meaningless the requirement that Commissioners be Iowa residents. I would conclude La Seur’s failure to maintain her status as an Iowa elector enables the district court to review the agency’s action under Iowa Code section 17A.19(10)(e), and summary judgment was improperly granted to the EPC on the issue.
Even if this case was decided under our common law, I would find La Seur’s vote is not validated by the de facto officer doctrine. Because of the foregoing rationales for residency and elector requirements, I disagree with the majority’s contention that La Seur’s failure to maintain her status as an Iowa elector “is comparable to that of an elected official who fails to properly take the oath of office.” Taking the oath of office is a technical procedure to be performed before an otherwise qualified candidate takes office. By contrast, the requirement that each member of the commission be an elector of this state is a condition of holding office that is fundamental, not technical. This residency requirement cannot be remedied through a procedural step such as taking or retaking an oath.
La Seur’s failure to maintain her status as an Iowa elector is similar to the failure of the officer in State v. Palmer to take the required training course prior to administering a breath test. See
Here, allowing La Seur to vote on rules affecting the citizens of Iowa when she did not meet the basic qualification that she be an Iowa elector “ignore[s] the legislature’s decision” to require commissioners to be electors of the state. See id. at 865; cf. Sargent,
For these reasons, I conclude La Seur’s failure to maintain her status as an Iowa elector, as required by Iowa Code section 455A.6(1), left her subject to disqualification and rendered the Commission an improperly constituted decision-making body. See Iowa Code § 17A.19(10)(e). That statute trumps the de facto officer doctrine. But, even under the majority’s common law analysis, La Seur’s participation should not be excused by the de facto officer doctrine. Her participation in voting, therefore, invalidates the Commission’s antidegradation rules. See Wilson,
Mansfield and Zager, JJ., join this concurrence in part and dissent in part.
. Iowa Code section 455A.6 creates a nine-member commission and requires that three members shall be "actively engaged in livestock and grain farming,” one member shall be "actively engaged in the business of finance or commerce," and one member shall be "actively engaged in the management of a manufacturing company.” Iowa Code § 455A.6(l)(a)-(c).
. The record suggests that Commissioner Heathcote may have counseled her colleagues in the environmental organization at the Iowa Environmental Council on how to lobby for the antidegradation rules while the proposed rules were pending before the Commission. Farm Bureau, however, has not advanced this as a ground for disqualifying her, focusing instead on allegations of bias and conflict of interest. I agree with the majority that Commissioner Heathcote’s outside employment with Iowa Environmental Council and her policy positions do not disqualify her from voting on the antidegradation rules. I leave for another day whether a commissioner can vote on a rulemaking proceeding when the commissioner also was personally involved in outside lobbying on that same proceeding.
. See, e.g., Iowa Const, art. Ill, § 4 (stating a state representative "shall have been an inhabitant of this state one year next preceding his election, and at the time of his election shall have had an actual residence of sixty days in the county, or district he may have been chosen to represent”); id. art. Ill, § 5 (requiring state senators to satisfy the same residence requirement as state representatives); id. art. IV, § 6 (requiring the Governor and Lieutenant Governor to be Iowa residents); id. art. V, § 16 (requiring members of the judicial nominating commissions to be Iowa electors); Iowa Code § 217.2(l)(c) (2013) (requiring members of the Council on Human Services to be Iowa electors); id. § 330.20 (requiring members of local airport commission to be residents "of the city or county establishing the commission or a resident of a city or county in this state served by the airport”); id. § 347.9 (requiring trustees of a county public hospital to be residents of the county); id. § 368.14 ("A local representative [to the City Development Board] must be a registered voter of the territory or city which the representative represents ....”); id. § 400.17(3) ("[Civil service e]mployees shall not be required to be a resident of the city in which they are employed, but they shall become a resident of the state within two years of such appointment or the date employment begins and shall remain a resident of the state during the remainder of employment.”); id. § 421.1(1) ("The state board of tax review ... shall consist of three members who shall be registered voters of the state_").
. The purpose of the IAPA is, in part, "to simplify the process of judicial review of
. La Seur is a graduate of the Yale Law School and a licensed attorney. She should have known that' moving to Montana and registering to vote there would end her status as an Iowa elector and would disqualify her from continued service on the Commission.