The Iowa State Auditor is a constitutional officer elected by the voters of Iowa to conduct audits of State and local government agencies. The Iowa Attorney General is a constitutional officer elected by the voters of Iowa to provide legal representation to State officers, including the Auditor. What happens when these two independently elected constitutional officers disagree on a legal question?
That is the question addressed by the Iowa Supreme Court in a case from Scott County regarding the Auditor’s effort to obtain records from the City of Davenport related to a City audit. State Auditor Rob Sand argues he has authority to use his own staff counsel to present arguments to the Iowa Supreme Court in response to the City’s appeal of the Scott County District Court’s ruling that the records must be produced to the Auditor. Attorney General Brenna Bird argues the Auditor is required by statute to rely on her office for legal representation in that appeal.
On that question, the Court said in a decision handed down Dec. 5, the Auditor is authorized to use his own attorney in the underlying appeal from the District Court when there is a conflict between the Auditor and Attorney General as to the Auditor’s legal positions. In those circumstances, the Attorney General should file an amicus curiae, or friend of the court, brief to state its views. The decision was written by Justice Edward Mansfield joined by Chief Justice Susan Christensen and by Justices Matthew McDermott and Dana Oxley. Justice Christopher McDonald filed a separate opinion concurring in part and dissenting in part, joined by Justice David May. Justice Thomas Waterman did not participate in consideration of the case or in the decision.
Besides the question of who must represent the Auditor, the two parties disagree on a key question in the underlying case: Must the City of Davenport disclose to the Auditor certain City records it argues are protected by attorney-client privilege? The Auditor argues that privilege does not apply to his auditing authority; the Attorney General disagrees, in which case, Justice Mansfield wrote, the Attorney General has a conflict of interest.
“After a careful review of the file, we have concluded that the Attorney General does not wish to advocate for the Auditor’s position with respect to attorney–client privileged communications because she believes it would be disadvantageous to the state as a whole,” he wrote. The Attorney General “may be taking a reasonable view of the state’s legal landscape,” he added, “but the “Attorney General’s obligations to represent the Auditor in this appeal are ‘materially limited’ by her responsibilities to other state agencies.”
The Court said its 1977 decision in Motor Club of Iowa v. Department of Transportation supports the Auditor’s position.
In that case, the Court said that nothing in the applicable statute “indicates that when the attorney general appears, as he did in this case, as counsel for a department of state government his relationship with that department differs in any way from that which ordinarily exists between attorney and client. Far from imposing the will of the attorney general on a branch of government we believe [the statute] merely enables state officers to utilize the services of the attorney general.”
The Court also disagreed with the Attorney General’s argument that, if she is disqualified due to a conflict of interest, the Auditor must obtain approval from the Iowa Executive Council for any alternative counsel as provided by Iowa Code Section 13.3. That provision requires that a State officer seek Executive Council approval for hiring a paid outside attorney when the Attorney General has a conflict of interest, but it does not prohibit the State department from utilizing an in-house attorney. [The Iowa Executive Council, consisting of five constitutional officers, provides State financial oversight.]
Section 13.3 “serves two important goals” Justice Mansfield wrote. “It protects the state officer or agency by assuring them that they will be able to get outside counsel when needed due to the Attorney General’s unavailability. And it protects the public fisc through prior executive council approval of such outside counsel.”
Writing separately, Justice McDonald concurred with the majority’s conclusion that the Attorney General has a conflict of interest in this case and that the Auditor may be represented by his own counsel, but he dissented from the Court’s conclusion that the Executive Council does not have to approve the appointment where the Auditor utilizes in-house counsel. He argues that the statute requires that the Executive Council approve all appointments of substitute counsel, and that the State has an interest in determining who represents State officers sued in their official capacities.
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