author: CADY, Justice.

text:
    Robert E. DOLAN, Appellee, v. CIVIL SERVICE COMMISSION OF the CITY OF DAVENPORT, Appellant.
    No. 99-0466.
    Supreme Court of Iowa.
    Oct. 10, 2001.

      Mary J. Thee, City Attorney, Davenport, for appellant.
    Dennis D. Jasper of Stafne, Lewis, Jasper, Bettendorf, for appellee.
   CADY, Justice.

Robert Dolan was discharged from his position as a member of the city of Davenport’s Fire Department for past and current misconduct. The district court reversed the decision by the Civil Service Commission to affirm the discharge, and ordered reinstatement. On our de novo review, we reverse the decision of the district court and reinstate the Civil Service Commission’s termination decision.

I. Background Facts and Proceedings.

Robert Dolan was a firefighter for the city of Davenport. He had worked for the city for fifteen years, and held the position of an engineer. He was responsible for driving the fire engine to the fire scene. Dolan was described as an “excellent” firefighter by several of his colleagues. Yet, despite his commendable on-the-job record, Dolan had a bleak disciplinary history.

Dolan had been suspended on four previous occasions. On April 21, 1986, he received a two-day suspension for an off-duty arrest for operating while intoxicated (OWI). From April 22, 1987 to October 1, 1987, he was suspended for failing to have a driver’s license due to his habitual violator status. On April 22, 1996, Dolan received a one-day suspension for arriving late to work on three occasions within the last year. This conduct violated the department’s tardiness policy. Dolan was again suspended for five days on November 18, 1996, following an arrest for harassment. This charge was based on inappropriate and threatening comments Dolan made to a pizza delivery woman. He was intoxicated at the time.

Dolan was discharged for conduct that occurred on April 11, 1997. While driving home on a snowy evening, Dolan lost control of his vehicle and slid into a ditch. A police officer witnessed the accident and saw Dolan flee the scene. Dolan claimed he walked from the scene to a friend’s neighboring house to seek a ride home. Not long after Dolan arrived home, police officers came to his house to investigate the accident. Eventually, four officers arrived at the residence. Three of the police officers were from the LeClaire Police Department, while the other officer was a Scott County Deputy Sheriff. While questioning Dolan, the officers began to suspect he was intoxicated. After conducting field sobriety tests, one of the officers informed Dolan he was under arrest for OWI. Dolan then attempted to escape the custody of the police officers and refused to comply with the officers’ orders. A struggle ensued, and two officers suffered minor injuries. Although he actively resisted arrest, Dolan was eventually handcuffed.

Dolan was charged with resisting arrest, interference with official acts, and OWI. Although the OWI and resisting arrest charges were subsequently dismissed, Do-lan was adjudged guilty of interfering with official acts.

On April 15, 1997, prior to the disposition of the three criminal charges, the fire department chief informed Dolan he was discharged for misconduct in violation of Fire Department Rule 15.2. Rule 15.2 prescribed the general conduct expected of department members, and provided for punishment for conduct that disgraced the department. The fire chiefs decision was based on the current incident of misconduct as well as on Dolan’s extensive disciplinary history. In addition, the fire chief partially based the termination decision on the belief Dolan would likely lose his driver’s license as a result of the OWI charge.

Following his discharge, Dolan voluntarily sought and successfully completed substance abuse treatment. Dolan’s substance abuse counselor commended him for excelling in the outpatient treatment program and for recognizing the severity of his substance abuse problem in addition to controlling it.

On July 9, 1997, the Civil Service Commission upheld the fire chiefs decision to terminate Dolan. Dolan appealed to the district court pursuant to Iowa Code .section 400.27 (1997). An appeal was heard by the district court on January 29, 1999. It received evidence additional to that presented to the Commission. Three fellow firefighters testified to Dolan’s superior competency as a firefighter. His substance abuse counselor testified Dolan had accepted responsibility for his prior actions, and he had been sober since completing the outpatient treatment program. Dolan acknowledged his sobriety and detailed his rehabilitation progress for the district court, which included his self-employment in the seamless gutter installation business.

The district court found Dolan’s off-duty actions constituted misconduct in violation of Fire Department Rule 15.2, but held the misconduct was not sufficiently detrimental to the public interest to justify his termination. The court also found Dolan was a “recovering alcoholic [who] has finally recognized the underlying cause of his off-duty misconduct.” Instead of termination, the court believed a several month suspension was the more appropriate sanetion. However, the court construed section 400.27 to limit its review options to either affirm the Commission decision or reinstate Dolan. It determined it was not permitted to suspend Dolan. Consequently, the court reinstated Dolan as of the date of his discharge and awarded back pay compensation.

The Commission appeals. It argues the district court erroneously interpreted section 400.27 as limiting the district court’s power of review, and urges us to find Dolan’s misconduct warranted his discharge.

II. Supreme Court Standard of Review.

Our review of the decision by the district court is de novo. Iowa Code § 400.27; Sieg v. Civil Serv. Comm’n, 342 N.W.2d 824, 827 (Iowa 1983). Although we give weight to the findings of the district court, we are not bound by them. See Sieg, 342 N.W.2d at 828; 5 C.J.S. Appeal and Error § 761(c), at 202 (1993). We confine our review to the record made in the district court. Johnson Mach. Works, Inc. v. Parkins, 171 N.W.2d 139, 145 (Iowa 1969). Thus, we do not receive new evidence. Id.; 5 C.J.S. Appeal and Error § 761(b), at 201. Additionally, we limit our review to the same issues that were raised in the district court. McKee v. McKee, 239 Iowa 1093, 1098, 32 N.W.2d 379, 382 (1948); 5 C.J.S. Appeal and Error § 761(b), at 201.

III. District Court Review.

Iowa Code section 400.27 provides for a “trial de novo” in the district court from an appeal of a commission decision. Iowa Code § 400.27. “When statutory language expressly provides for a trial ... de novo, we believe this procedure must be distinguished from a review de novo.” Sieg, 342 N.W.2d at 828 (emphasis added). There are significant differences between the two proceedings. See In re Huston, 263 N.W.2d 697, 699 (Iowa 1978). Ordinarily, in a review proceeding, the reviewing court is restricted to the record made in the lower tribunal. Sieg, 342 N.W.2d at 828; Mason v. World War II Serv. Compensation Bd., 243 Iowa 341, 344, 51 N.W.2d 432, 434 (1952). Conversely, in a trial de novo, the court hearing the case anew is permitted to receive evidence additional to that presented to the commission. Wilson-Sinclair Co. v. Griggs, 211 N.W.2d 133, 138-39 (Iowa 1973); Mason, 243 Iowa at 345, 51 N.W.2d at 434. Thus, a statute providing for a “trial de novo” in the district court contemplates a trial in the general meaning of the term, not merely a review of the agency proceeding. Mason, 243 Iowa at 345, 51 N.W.2d at 435; see Dunham v. Clayton, 470 N.W.2d 362, 367 (Iowa Ct.App.1991).

A trial de novo would also normally permit the district court to select the same remedies that were available before the commission. In the case of firefighters, the chief of the fire department may suspend, demote, or discharge a firefighter for misconduct. Iowa Code § 400.18, .19. On appeal, the commission may then “affirm, modify, or reverse any case on its merits.” Id. § 400.27. Thus, the commission has the same disciplinary options as the chief. On further appeal to the district court the trial de novo takes place. Id. This would normally mean the district court would have the same disciplinary options as the chief and the commission. The district court in this case determined, however, that its review options were limited to affirming or reversing the decision made by the Commission to discharge Do-lan. It concluded it had no authority to modify the Commission decision. The district court relied on that portion of section 400.27 which provides as follows:

In the event the ruling or decision appealed from is reversed by the district court, the appellant, if it be an employee, shall then be reinstated as of the date of the said suspension, demotion, or discharge and shall be entitled to compensation from the date of such suspension, demotion, or discharge.

Id. (emphasis added).

We conclude this sentence does not limit the scope of a district court’s review under section 400.27. Instead, we find this sentence only pertains to the issues of when a reinstatement should take effect and back pay compensation.

In interpreting section 400.27, we must keep in mind the broad scope of the power granted to the district court in an appeal from a commission disciplinary decision. When the legislature provided for a trial de novo, it did not intend to limit the review to the record before the commission. See Mason, 243 Iowa at 345, 51 N.W.2d at 434; Dunham, 470 N.W.2d at 367. Instead, the objective of a trial de novo is to permit the district court to independently determine whether the sanction imposed by the commission was warranted. We would contravene the purpose of a trial de novo if we found section 400.27 prohibited district courts from modifying a commission decision. Moreover, the language of the disputed portion of the statute clearly applies only if the district court reverses the decision of the commission. It does not apply to limit the disciplinary options of the district court. Thus, the district court erroneously construed section 400.27 to limit its power of review. Accordingly, we are also entitled to modify the Commission’s decision on our de novo review if we conclude suspension was the more appropriate sanction in this case.

IV. Appropriate Discipline.

Iowa Code section 400.19 provides the fire department chief may discharge an employee for misconduct. Iowa Code § 400.19. In delegating the power of imposing sanctions to the fire chief, the legislature failed to define what type of misconduct warranted discharge. Johnson v. Civil Serv. Comm’n, 352 N.W.2d 252, 258 (Iowa 1984); Sieg, 342 N.W.2d at 829. Although the parameters are unclear, we may look to the Davenport Fire Department’s own rules and prescribed code of conduct as well as existing precedent for guidance.

Members of the Davenport Fire Department were on notice that their conduct was governed by Fire Department Rule 15.2. Moreover, as Dolan had been disciplined three previous times for misconduct, he was sufficiently apprised of what actions constituted a violation of Department policy. Rule 15.2 mandates that:

Section 2: General Conduct. In matters of general conduct, not within the scope of Department rules, members will be governed by ordinary rules of good behavior observed by law abiding citizens, and will be punished for conduct tending to bring reproach, disgrace, or reflection upon the Department and its uniform.

(Emphasis added.) Clearly, Dolan’s conduct violated the “ordinary rules of good behavior observed by law abiding citizens.” He was found guilty of violating the law prohibiting interference with official acts. Furthermore, the struggle with the police officers on the evening of April 11, 1997, disgraced, and reflected poorly upon Do-lan, and by extension, the Davenport Fire Department. Dolan’s conduct on April 11, even though it occurred while off-duty, constituted misconduct as prohibited by Fire Department Rule 15.2 and Iowa Code section 400.19. See Appeal of Zeber, 398 Pa. 35, 156 A.2d 821, 825 (1959) (“conduct which has a tendency to destroy public respect for municipal employees and confidence in the operation of municipal services” is unbecoming conduct).

The only remaining issue for us to resolve is the appropriate sanction under these circumstances. In making this independent determination, we consider Dolan’s prior punished acts of misconduct as well as this current incident. See City of Clinton v. Loeffelholz, 448 N.W.2d 308, 312 (Iowa 1989); City of Fort Dodge. v. Civil Serv. Comm’n, 562 N.W.2d 438, 440 (Iowa Ct.App.1997); McCormack v. Civil Serv. Comm’n, 315 N.W.2d 855, 859 (Iowa Ct.App.1981). Additionally, we balance the evidence, if any, of extenuating circumstances mitigating the misconduct. See Johnson, 352 N.W.2d at 258.

In determining whether dismissal was warranted in this case, we must remember the primary objective of section 400.19 is to protect the public interest. See Johnson, 352 N.W.2d at 258; Sieg, 342 N.W.2d at 829; Millsap v. Cedar Rapids Civil Serv. Comm’n, 249 N.W.2d 679, 684 (Iowa 1977). Firefighters have a duty to maintain the public trust and confidence, and they run afoul of this duty when they exercise a lack of judgment and discretion. See Sieg, 342 N.W.2d at 829; Millsap, 249 N.W.2d at 686-87; City of Fort Dodge, 562 N.W.2d at 440; Eilers v. Civil Serv. Comm’n, 544 N.W.2d 463, 466 (Iowa Ct.App.1995). This heightened duty extends to a firefighter’s off-duty conduct. See Sieg, 342 N.W.2d at 829; Eilers, 544 N.W.2d at 466; Fabio v. Civil Serv. Comm’n, 30 Pa.Cmwlth. 203, 373 A.2d 751, 754 (1977). Thus, the determinative factor is whether Dolan’s conduct was sufficiently detrimental to the public interest. Sieg, 342 N.W.2d at 828; City of Fort Dodge, 562 N.W.2d at 440. If so, discharge was warranted. City of Fort Dodge, 562 N.W.2d at 440.

Clearly, Dolan’s actions on the evening of April 11 demonstrated a lack of respect for authority. Sieg, 342 N.W.2d at 829; City of Fort Dodge, 562 N.W.2d at 441. This incident, in addition to the other prior acts of misconduct, revealed Dolan’s volatile personality and inability to exercise personal restraint. City of Clinton, 448 N.W.2d at 312. Moreover, Dolan’s past and current misconduct exhibited a persistent pattern of disregard for departmental rules. Sieg, 342 N.W.2d at 830. Even though the current act of insubordination occurred within the confines of his personal residence, these characteristics persistently displayed by Dolan could likely expand to and affect the public he was charged to protect. Id. at 829; see Fabio, 373 A.2d at 755 (“a distinction between ‘private’ and ‘public’ ... conduct has [no] bearing”). Furthermore, Dolan’s conduct, reflected poorly on his ability to fulfill his role as a firefighter. It was viewed by members of the police department as well as a deputy sheriff. Sieg, 342 N.W.2d at 829. Perhaps equally, if not more, important, Dolan’s conduct became a matter of public knowledge. See Fabio, 373 A.2d at 755. Local newspapers apprised the public of these proceedings. Thus, Dolan’s misconduct likely damaged the Davenport Fire Department’s prestige and breached the public’s trust in his leadership abilities. See Core v. City of Traverse City, 89 Mich. App. 492, 280 N.W.2d 569, 571 (1979).

We conclude Dolan’s consistent disrespect of authority and the public, as well as his failure to exercise good judgment and self-control, was sufficiently detrimental to the public interest to warrant his termination. Eilers, 544 N.W.2d at 466; Fabio, 373 A.2d at 755. Four of the five disciplinary actions stemmed from Dolan’s substance abuse problems. In addition, the circumstances surrounding the harassment charge were particularly troubling. Dolan told a woman delivering pizza to his home he should rape her. Dolan’s substance abuse problems have resulted in his arrest for OWI on three separate occasions. The fact that each incident of misconduct occurred while Do-lan was off-duty does not diminish their seriousness. Moreover, we do not find the evidence introduced by Dolan to the district court of a supposed vendetta against him by certain members of the police department constituted an extenuating circumstance. See Johnson, 352 N.W.2d at 258. Likewise, none of the circumstances from the current incident revealed a justification for Dolan’s misconduct. Eilers, 544 N.W.2d at 466.

Nevertheless, Dolan contends the evidence of his rehabilitation as an alcoholic presented at the district court hearing mitigates the cumulative effect of his past and current misconduct. As the district court found, Dolan asserts this evidence strongly militates against discharge.

We begin our analysis of the impact of the evidence of Dolan’s rehabilitation by acknowledging a trial de novo before the district court permits new or additional evidence not presented to. the commission to be presented to the district court. Clearly, the passage of time between the two hearings can shed more light on the case, especially where the time spans eighteen months as, it did in this case. See Wilson-Sinclair Co., 211 N.W.2d at 138-39; Mason, 243 Iowa at 345, 51 N.W.2d at 434. However, a trial de novo does, not change the issues in the case or the nature of the evidence to support those issues. See McKee, 239 Iowa at 1098, 32 N.W.2d at 382. The issues before the Commission were whether Dolan committed misconduct, and, if so, what discipline should result from the misconduct. These were the same issues before the district court.

We have previously found evidence discovered subsequent to a chiefs decision sufficient to mitigate the alleged misconduct. See City of Des Moines v. Civil Serv. Comm’n, 513 N.W.2d 746, 747-49 (Iowa 1994); see also Clay v. City of Cedar Rapids, 577 N.W.2d 862, 865-66 (Iowa Ct.App.1998). However, in those cases, the evidence indicated the officer’s actions did not constitute misconduct and it related to facts that were in existence at the time the original discipline was imposed. See City of Des Moines, 513 N.W.2d at 749; Clay, 577 N.W.2d at 866. In this case, the evidence offered by Dolan to show he no longer consumes alcohol does-not impact the issue of misconduct. The abuse of alcohol is not an excuse for misconduct. Thibodeaux v. City of Opelousas, 717 So.2d 254, 259 (La.Ct.App.1998). Furthermore, the evidence of rehabilitation was beyond the temporal parameters of the circumstances of the termination.

Ordinarily, evidence of rehabilitation from alcohol abuse following a termination decision would not be relevant in a subsequent de novo proceeding. Primarily, a de novo proceeding considers facts and circumstances leading to the original termination. The review process under chapter 400 exists to protect and shield public employees from arbitrary and capricious removal. City of Des Moines v. Civil Serv. Comm’n, 540 N.W.2d 52, 58-59 (Iowa 1995). It does not exist to change the issues or scope of the original termination decision. This is not to say evidence of rehabilitation could never be relevant, but the evidence of rehabilitation presented to the district court in this case was simply too far removed from the original termination decision to have any impact on the disciplinary decision.

In our review of the relevant evidence surrounding the termination decision, it is clear that Dolan’s commendable on-the-job performance was circumvented by his problematic disciplinary history. See City of Clinton, 448 N.W.2d at 312 (although officer “established an exemplary record” for the first six years of employment, he “repeatedly exhibited behavior that indicated a lack of sound judgment” over the next two years); City of Fort Dodge, 562 N.W.2d at 441 (“repeated misconduct following severe and costly suspensions reveal a dimension of insolence that is not amenable to correction”); McCormack, 315 N.W.2d at 859 (officer “guilty of a series of incidents showing extremely poor judgment, reflecting badly upon the police department”); see also Appeal of Zeber, 156 A.2d at 824-25 (although fireman served for seventeen years without incident, “the complained of conduct and its attending circumstances ... offend[ed] publicly accepted standards of decency”). This history was extensive, and revealed a long and serious track record of alcohol abuse.

Other jurisdictions have found conduct similar to, and sometimes less egregious than, the conduct of Dolan in this case to warrant termination. See Thibodeaux, 717 So.2d at 260 (off-duty conduct of driving while intoxicated and surrounding circumstances warranted officer’s termination). But see Aiello v. City of Wilmington, 623 F.2d 845, 847-48 (3d Cir.1980) (fireman suffering from severe emotional distress suspended for 2000 hours after found by police passed out on floor of retail store he had entered illegally). In Civil Service Commission v. Wojtusik, 106 Pa.Cmwlth. 214, 525 A.2d 1255 (1987), the court upheld the Civil Service Commission’s decision to terminate an officer who was charged with OWI, assault on police, resisting arrest, and disorderly conduct. Wojtusik, 525 A.2d at 1256. Although the officer was subsequently acquitted of all charges, the court found the officer’s conduct in kicking the arresting officers after he had been handcuffed was conduct unbecoming of an officer. Id. at 1257-58. Likewise, in Core v. City of Traverse City, 89 Mich.App. 492, 280 N.W.2d 569 (1979), the court upheld the fire chiefs decision to terminate the firefighter for his arrest for illegally hunting deer with an artificial light, even though he was also subsequently acquitted of the charge. Core, 280 N.W.2d at 571. However, the Core court also found significant the firefighter’s disciplinary history, which involved reckless driving and assault convictions. Id. at 570. Thus, we are not alone in our finding that a repeated course of misconduct, viewed in connection with a present charge, warrants discharge. See Williams v. Police Dep’t of New York, 50 N.Y.2d 956, 431 N.Y.S.2d 462, 463, 409 N.E.2d 936 (1980) (at time of current incident, officer was on disciplinary probation for the fourth time); Smith v. Tomlinson, 136 A.D.2d 646, 523 NY.S.2d 604, 606 (NY.App.Div.1988) (“present misconduct charge was the third such incident”).

Firefighters are the protectors of our community. Eilers, 544 N.W.2d at 466. They enter our homes and places of business under the most dire of circumstances. Core, 280 N.W.2d at 572. Consequently, public trust is essential for the fire department to operate efficiently. Id. In order to maintain the public trust, firefighters must adhere to the highest standard of respect for others. Aiello, 623 F.2d at 848. Not only must firefighters maintain the trust of the public to whom they are charged to serve, they must also have the respect of their colleagues who are called to place their very lives in each other’s hands. Thibodeaux, 717 So.2d at 260. Detrimental conduct by a fire department member adversely affects the overall morale and efficiency of the department. Appeal of Zeber, 156 A.2d at 825. Dolan’s conduct tainted the trust of both the public and his fellow firefighters. On numerous occasions, he exhibited a lack of respect for others and a willingness to break the law. See Appeal of Zeber, 156 A.2d at 825. Although Dolan’s alcohol abuse did not directly interfere with his competency as a firefighter, it did create problems within the department in the form of administrative proceedings, suspension from the line of duty, and a breach of trust. See id. Dolan’s discharge was warranted.

V. Conclusion.

We conclude section 400.27 does not intrude upon a district court’s broad power in conducting a trial de novo to modify a disciplinary decision of the commission. In addition, we find Dolan’s misconduct was sufficiently detrimental to the public interest to warrant his discharge.

REVERSED.


source: Caselaw Access Project

author: TERNUS, Justice.

license: Public Domain

text:
    CITY OF MASON CITY, Appellant, v. CITY CENTER OF MASON CITY, INC., Appellee.
    No. 99-1004.
    Supreme Court of Iowa.
    Oct. 10, 2001.

      Herman P. Folkers of Folkers and Keen, Mason City, for appellant.
    Charles H. Levad of the Levad Law Office, Mason City, for appellee.
    Mark R. Schuling of Brick, Gentry, Bowers, Swartz, Stoltze, Schuling & Levis, P.C., Des Moines, for amicus curiae Iowa Cable & Telecommunications Association.
   TERNUS, Justice.

The appellant, City of Mason City, cited the appellee, City Center of Mason City, Inc. (City Center), for violation of a municipal ordinance prohibiting the operation of a cable communication system without a franchise. A judicial magistrate held that City Center had violated the city ordinance and ordered it to remove its cables from the public right-of-way. On appeal, the district court reversed and dismissed the citation against City Center, ruling that City Center did not operate a “cable system” as that activity is defined in the ordinance. Upon our review, we reverse and remand.

I. Background Facts and Proceedings.

The facts of this case are essentially undisputed. City Center is an Iowa corporation that owns a building in downtown Mason City, Iowa that includes apartments. Because the franchised cable services provider in Mason City did not serve this building, City Center installed a satellite dish on the top of the building to provide cable television to building residents.

To help defray the cost of this system, City Center decided to use the satellite dish on its building to provide cable services, presumably for a fee, to residents of the Kirk Apartments located two blocks away. In order to get the signal to the Kirk Apartments, it was necessary for cable lines to cross three public streets. Pri- or to proceeding with installation of the lines, City Center negotiated easements with private building owners to attach the cable lines to their buildings. Thus, although the cable lines from the satellite dish to the Kirk Apartments crossed over city streets, the lines were not attached to city property and, in fact, did not touch any city property.

On October 27, 1997, the City cited City Center for operating a cable communication system without a franchise in violation of the Mason City Code of Ordinances section 3-17-4. The citation directed City Center to remove its cables from the public right-of-way.

City Center disputed the citation, and the matter was tried to a judicial magistrate on stipulated facts. The parties stipulated that under the city ordinance a “cable system” may only be operated pursuant to a city franchise. The term, “cable system,” as defined in the ordinance, excluded any system “that serves only subscribers in one or more multiple unit dwellings ... no part of which system uses City right of way.” The magistrate concluded that City Center did not fall within the exclusion because its cables crossed city streets, and, therefore, its system used city right-of-way. Accordingly, the magistrate held that City Center had violated the ordinance by operating a cable communication system without a franchise. A civil fine was imposed and City Center was ordered to remove its lines from city right-of-way.

On appeal to the district court, the district court concluded that City Center was not “using” the public right-of-way by merely passing cables over city streets, where “[t]he cable is attached solely to private property and does not rely on any public easements.” The district court dismissed the citation.

The City sought and was granted discretionary review by this court. See Iowa Code § 631.16 (1997); Iowa Rs.App. P. 201, 203.

II. Scope of Review.

This case was brought before the court as a law action. Therefore, on discretionary review, the decision of the district court is reviewable for correction of errors at law. See Hunke v. Veach, 572 N.W.2d 548, 549 (Iowa 1997); City of Albia v. Stephens, 461 N.W.2d 326, 328 (Iowa 1990); Iowa R.App. P. 4.

III. Discussion.

Although this action is based on a municipal ordinance violation, federal law governs. Before we discuss the controlling statute — the Cable Communications Policy Act of 1984 — and its preemptive authority, it is helpful to briefly review the concerns underlying the enactment of this law. See Cable Communications Policy Act of 1984, Pub.L. No. 98-549, 98 Stat. 2780 (currently codified as amended at 47 U.S.C. §§ 521-573 (1994 & Supp. V 1999)) (the Cable Act). Prior to the Cable Act, the Federal Communications Commission (FCC) pursued “open entry policies in the satellite field for the purpose of creating a more diverse and competitive telecommunications environment.” In re Earth Satellite Communications, Inc., 95 F.C.C.2d 1223, 1231 (1983). As the FCC noted in its Earth Satellite opinion, “local prior approval requirements are inconsistent with national policies in these areas.” Id. at 1232. In balancing the competing interests with respect to the communications industry, the FCC stated:

The ultimate dividing line, as we see it, rests on the distinction between reasonable regulations regarding use of the streets and rights-of-way and the regulation of the operational aspects of cable communications. The former is clearly within the jurisdiction of the states and their political subdivisions. The latter, to the degree exercised, is within the jurisdiction of this Commission.

Id. at 1235.

The Cable Act reflects this dual regulatory framework by setting up “a comprehensive scheme for the regulation of cable services at the federal, state, and local levels.” Channel One Sys., Inc. v. Conn. Dep’t of Pub. Util. Control, 639 F.Supp. 188, 195 (D.Conn.1986). The Act “establish[es] a national framework for regulating cable television,” while at the same time “providing] for the franchising of cable systems by local governmental authorities.” FCC v. Beach Communications, Inc., 508 U.S. 307, 309, 113 S.Ct. 2096, 2099, 124 L.Ed.2d 211, 219 (1993). The breadth of local authorities’ power to franchise “cable systems” is controlled by the federal definition of “the operative term ‘cable system.’ ” Id. at 310, 113 S.Ct. at 2099, 124 L.Ed.2d at 219. That is because the franchise power of local government extends only to those entities meeting the federal definition of that term. See generally 47 U.S.C. §§ 541-547.

The Mason City ordinance at issue here acknowledges the dual framework envisioned by the Cable Act. Section 3-17-4 states:

All cable communication activity within the City shall be undertaken pursuant to a franchise granted by the City, and shall be in accordance with the provisions of this Chapter. A grantee shall at all times comply with the rules and regulations of the FCC as well as with all other applicable Federal and State statutes. FCC rules and regulations shall in all cases be controlling if any part of this Chapter or any cable television franchise is in conflict with any FCC rules and regulations.

Mason City Code of Ordinances § 3-17-4. The parties agree that the City cannot require a franchise if the service provided does not meet the federal definition of “cable system.” See Guidry Cablevision/Simul Vision Cable Sys. v. City of Ballwin, 117 F.3d 383, 383 (8th Cir.1997) (stating that the FCC “has invoked federal preemption to preclude local governments from requiring that an exempt private cable operator obtain a local franchise”). That definition is as follows:

[T]he term “cable system” means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include ... (B) a facility that serves subscribers without using any public right-of-way

47 U.S.C. § 522(7) (emphasis added).

It is undisputed that City Center provides a service that falls within the general definition of “cable system.” The bone of contention is whether City Center’s cable system “uses” public right-of-way within the meaning of the private cable exemption contained in § 522(7)(B).

Congress did not define the word “uses” or the phrase “uses any public right-of-way.” City of Chicago v. FCC, 199 F.3d 424, 431 (7th Cir.2000); Guidry Cablevision, 117 F.3d at 385. Therefore, we initially must determine whether the agency charged with administration of the Cable AcU — the FCC — has formulated an interpretation. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694, 703 (1984). See generally United States v. Southwestern Cable Co., 392 U.S. 157, 178, 88 S.Ct. 1994, 2005, 20 L.Ed.2d 1001, 1016 (1968) (holding that the FCC’s authority extends to cable television systems).

As the United States Supreme Court stated in Chevron, U.S.A., it has long been “recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer.” 467 U.S. at 844, 104 S.Ct. at 2782, 81 L.Ed.2d at 704. If the construction adopted by the agency “ ‘represents a reasonable accommodation of conflicting policies that were committed to the agency’s care by statute, [the agency interpretation] should not [be] disturbed] ... unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.’ ” Id. at 845, 104 S.Ct. at 2783, 81 L.Ed.2d at 704 (quoting United States v. Shimer, 367 U.S. 374, 383, 81 S.Ct. 1554, 1560, 6 L.Ed.2d 908, 915 (1961)).

Upon our examination of relevant authorities, we find insight into the FCC’s interpretation of the word “uses” in a report and order issued by the agency in 1990. See In re Definition of a Cable Television System, 5 F.C.C.R. 7638 (1990). The proceeding giving rise to this report was commenced “to clarify [the agency’s] interpretation of the statutory term, ‘cable system’ as defined in the Cable ... Act of 1984.” Id. at 7638. The FCC had sought comment on two issues: (1) the “implications of treating facilities connected only by radio (or infrared) transmission and making use of no other interconnecting wires or cables as cable systems”; and (2) “whether facilities serving multiple unit dwellings that do not use public rights-of-way might in some instances be cable systems within the Act’s definition.” Id.

In discussing these issues, the FCC noted “the dual federal-local jurisdictional ap-proaeh to regulating cable television service is largely premised on the fact that cable systems necessarily involve extensive physical facilities and substantial construction upon and use of public rights-of-way in the communities they serve.” Id. at 7639. Thus, even prior to the Cable Act of 1984, there was a “fundamental understanding” that systems consisting solely of an internally wired building “were not deemed to be cable systems for jurisdictional purposes” because such systems made no use “ ‘of local rights-of-way before commencing operation.’ ” Id. at 7640 (quoting In re Amendment of Part 76 of the Commission’s Rules and Regulations With Respect to the Definition of a Cable Television System and the Creation of Classes of Cable Systems, 54 F.C.C.2d 824, 835 (1975)). Consistent with this history, the FCC concluded “the term cable system as used in the Act encompasses only video delivery systems that employ cable, wire, or other physically closed or shielded transmission paths to provide service to subscribers.” Id. at 7638. Thus, “systems serving more than one multiple unit dwelling interconnected only by radio or infrared facilities ... are not cable systems.” Id.

In its discussion of the private cable exclusion, the FCC observed that it had sought comment “with respect to the question of what constitutes a crossing of a public right-of-way.” Id. at 7641 (emphasis added). The FCC stated that its “use of the term ‘crossing’ was not meant to imply anything different” from “the specific statutory language refer[ing] to ‘uses’ of a public right-of-way.” Id. at 7641-42. Nonetheless, the FCC concluded “Congress did not intend to include within the meaning of the term ‘use’ of a public right-of-way the mere passing over of such a right-of-way by electromagnetic radiation.” Id. at 7642 (emphasis added). It noted that “radio waves may cross a public right-of-way but do not use it.” Id. In contrast, the FCC made the following statements with respect to closed transmission systems, such as the system at issue here:

Whether a facility uses a right-of-way, of course, remains relevant to whether a multi-building system interconnected by closed transmission paths falls within the private cable exemption.... If the facility does cross a public right-of-way, it will be considered a cable system for purposes of the Cable Act and our rules.

Id. (emphasis added). The United States Supreme Court has interpreted the FCC’s discussion of the exemption in this report as equating “uses” with “crosses”: “Consistent with the plain terms of the statutory exemption, the Commission concluded that such an SMATV system is subject to the franchise requirement if its transmission lines ... use or cross any public right-of-way.” Beach Communications, 508 U.S. at 311, 113 S.Ct. at 2100, 124 L.Ed.2d at 220 (emphasis added).

That the FCC interprets the word “uses” as synonymous with “crosses” is indicated in other reports it has issued as well. As early as 1985, the FCC, in a report and order regarding the implementation of the equal employment opportunity provisions of the Cable Act, stated:

“The House Report on the Cable Act indicates that SMATV operators are subject to the EEO provisions regardless of whether the systems only serve commonly-owned apartments without crossing public rights of way.” In re Amendment of Part 76 of the Commission’s Rules to Implement the Equal Employment Opportunity Provisions of the Cable Communications Policy Act of 1984, 102 F.C.C.2d 562, 566 (1985) (emphasis added). More recently, the FCC used similar language in a notice of proposed rulemaking and in an annual report to Congress. In its notice of proposed rulemaking, the FCC stated that private cable operators “do not use hardwired crossing of public rights-of-way, and, therefore are not considered ‘cable systems.’ ” In re: Petition for Rulemaking to Amend Eligibility Requirements in Part 78 Regarding 12 GHZ Cable Television Relay Service, 14 F.C.C.R. 11,967, 11,967 (1999) (emphasis added). In a recent annual report, the FCC similarly stated: “Under the 1996 Act, SMATV operators may use wires to connect separately owned buildings, so long as the wires do not traverse public rights-of-way.” In re Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, 22 Communications Reg. (P & F) 1414, 1442 (2001) (emphasis added). See generally Webster’s Third New International Dictionary 2433 (un-abr. ed.1990) (defining “traverse” in part as “to go or travel across or over”). We conclude the FCC interprets the term “uses” to include the crossing of public right-of-way by physically closed pathways (cables), such as occurred in this case.

The FCC’s interpretation is controlling here if it “ ‘represents a reasonable accommodation of conflicting policies that were committed to the [FCC’s] care by statute, ... unless it appears from the [Cable Act] or its legislative history that the accommodation is not one that Congress would have sanctioned.’ ” Chevron, U.S.A., 467 U.S. at 845, 104 S.Ct. at 2783, 81 L.Ed.2d at 704 (quoting Shimer, 367 U.S. at 383, 81 S.Ct. at 1560, 6 L.Ed.2d at 915). As we have already discussed, the primary justification for local control “was cable television’s use of public rights-of-way.” See City of Chicago, 199 F.3d at 429. “The existence of physical and economic limitations on the number of cable systems that can be constructed and operated in a single community has also been cited as a justification for local regulation.” Qwest Broadband Servs., Inc. v. City of Boulder, 151 F.Supp.2d 1236, 1241 (D.Colo.2001). These rationales are logically related to the fact that local governments have an interest in the maintenance and operation of their public rights-of-way to ensure public safety and convenience. See In re: Entertainment Connections, Inc., 13 F.C.C.R. 14277, 14307 (1998) (“The public safety, convenience and management of public rights-of-way provide a key premise for the cable franchise requirement.”). We think the FCC could reasonably determine that when a cable provider crosses a public right-of-way with a closed transmission pathway, the passing of the cable over the right-of-way has an effect on local government’s ability to efficiently and safely control, operate and maintain the right-of-way. Therefore, the FCC’s interpretation of the statutory exemption to allow local franchising control in such situations is understandable.

That brings us to the ultimate issue: does this interpretation represent a reasonable accommodation of the varying policies implicated in this situation? City Center argues that it will not be able to compete in the provision of cable television services if it is required to comply with the requirements for a franchise. The interest of the public in robust competition is not, however, necessarily affected to a great extent by the FCC’s interpretation of the “cable system” definition. The ability of local governments to impose requirements on franchised cable systems extends only as far as the preemption doctrine permits. See 47 U.S.C. § 556(c) (1994) (providing that any franchising provision “which is inconsistent with this chapter shall be deemed to be preempted and superseded”); MediaOne Group, Inc. v. County of Henrico, 97 F.Supp.2d 712, 714 (E.D.Va.2000) (holding city ordinance imposing requirement on franchised cable operator was preempted and therefore was an unlawful condition); Cablevision Sys. Corp. v. Town of E. Hampton, 862 F.Supp. 875, 888 (E.D.N.Y.1994) (modifying franchise agreement to bring it into conformity with federal law). In other words, a municipality’s power to regulate the use of its right-of-way through its franchising authority cannot be used as a subterfuge to regulate competition among cable systems. Qwest Broadband Servs., Inc., 151 F.Supp.2d at 1244 (holding that city’s franchise requirements were preempted because they conflicted with the clear congressional purpose of “promoting vigorous competition”). Therefore, we do not think congressional intent to promote competition in this industry is compromised by the FCC’s interpretation of the Cable Act in such a way as to subject cable systems, like the one at issue here, to local franchising control.

We conclude that the FCC’s interpretation of the word “uses” in the definition of “cable system” is a reasonable accommodation of the competing policies — maintenance of local control over government rights-of-way versus promotion of a competitive environment in the cable television industry. Because the FCC’s interpretation is reasonable, it is controlling here. See City of Chicago, 199 F.3d at 428 (holding that court “may not substitute [its] own construction of a statute when an agency has interpreted it in a reasonable fashion”). Applying this interpretation, we hold that City Center cannot claim sanctuary in the private cable exclusion. Because its cable passes over city right-of-way, City Center “uses” city right-of-way. Therefore, the exemption does not apply.

The district court erred in interpreting the ordinance to allow City Center to use city right-of-way without having first obtained a franchise. We reverse the decision of the district court and remand for entry of an order affirming the ruling of the judicial magistrate.

REVERSED AND REMANDED.

      . At the time of the citation at issue here, the Mason City Code of Ordinances contained a definition of "cable system” that tracked with a prior version of the federal definition of this term. Compare Mason City Code of Ordinances § 3-17-2, with 47 U.S.C. § 522(6) (1988). A 1996 amendment to the federal definition eliminated a requirement that the system “serve[ ] only subscribers in 1 or more multiple unit dwellings under common ownership, control, or management.” Cable Reform Act of 1996, Pub.L. No. 104-104, § 301(a), 110 Stat. 114 (codified at 47 U.S.C. § 522(7) (Supp. V 1999)). To the extent the City's ordinance retained the requirement of commonality after the 1996 amendment, the ordinance is contrary to federal law and, therefore, the municipal definition of "cable system” is preempted.

      . It is perhaps appropriate at this point to explain why we have chosen to apply the Chevron, U.S.A. test in lieu of following the Eighth Circuit's reasoning in Guidry, as we have been urged by City Center to do. In Guidry, the court held that a cable system that passed under a public street was not "using” the public right-of-way. 117 F.3d at 386. In determining the meaning of "use,” the court turned to criminal cases interpreting "uses” in the context of criminal statutes. Id. at 385. We find this analysis unpersuasive and at odds with the principles set forth by the United States Supreme Court in Chevron, U.S.A. The fact that the FCC has interpreted the statutory language at issue here makes resort to analogous areas of the criminal law unnecessary and inappropriate. See id. at 386-88 (Bright, J., dissenting).

      . "SMATV” is an acronym for a satellite master antenna television system. In such a system a television signal is transmitted from a satellite to satellite-receiving stations atop buildings, such as the satellite dish used by City Center. The signal is then "converted to a usable frequency and distributed to subscribing tenants through [an] MATV system.” N.Y. State Comm’n on Cable Television v. FCC, 749 F.2d 804, 806 (D.C.Cir.1984). An MATV (master antenna television) system delivers the signal to tenants through coaxial cables that run through the building. See id.

      . It may be that certain franchise requirements set forth in the Mason City Code of Ordinances go beyond the power allocated to local authorities, but that issue has not been raised here. Even if it had been raised, it is not ripe for review, as the record does not show that City Center has even applied for a franchise. See State v. Iowa Dist. Ct., 616 N.W.2d 575, 578 (Iowa 2000) (holding that courts should not be involved in " 'abstract disagreements over administrative policies ... until an administrative decision has been formalized' ” (quoting Abbott Lab. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681, 691 (1967))). The issue here is solely whether City Center falls within the definition of "cable system," so as to be subject to the city's franchising authority in general. Consequently, we do not consider the validity of the conditions that potentially could be imposed on a franchisee under the ordinance.


author: LARSON, Justice.

text:
    CITY OF CORALVILLE, Iowa, Barry W. Bedford, and Kelly Hayworth, Plaintiffs, v. IOWA DISTRICT COURT FOR JOHNSON COUNTY, Defendant.
    No. 99-1185.
    Supreme Court of Iowa.
    Oct. 10, 2001.

      Jim D. DeKoster and Kevin R. Rogers of Swisher & Cohrt, P.L.C., Waterloo, for plaintiffs.
    Tom Riley and Anne Updegraff of Tom Riley Law Firm, P.C., Cedar Rapids, for defendant.

       Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2001).

   LARSON, Justice.

The issue before us is whether the district court properly ordered the production of evidence to be used in an underlying suit by a former police officer against the City of Coralville and various other defendants. The city and two of its employees (collectively city) challenge the order to compel discovery by filing this certiorari action. We sustain the writ in part and annul it in part.

I. Facts and Prior Proceedings.

Brittain B. Johnson, the plaintiff in the underlying tort case, was a police officer for the City of Coralville who arrested a man named Michael Constantino. On February 13, 1998, Constantino sued the city and Johnson under 42 U.S.C. § 1983 and common law for damages allegedly arising out of the arrest. On February 20, 1998, the Coralville assistant city attorney, Kirstene Diehl, met with Johnson and told him the city and its insurance carrier, EMC, had the statutory right and duty to provide an attorney for Johnson and the city. Diehl told Johnson that EMC ordinarily hired Cedar Rapids attorney Terry Abernathy to defend the city and its employees. She also gave Johnson the address and telephone number of EMC’s claims supervisor. Diehl suggested that Johnson talk to the claims supervisor regarding legal representation. Johnson apparently did not call the claims manager but rather wrote Abernathy on February 22 to inform him that EMC should not pay the Constantino claim because it had no merit. On February. 25, 1998, Abernathy replied by letter to Johnson and said he had not been hired to represent the defendants and that EMC was apparently handling the claim internally.

On February 27, 1998, a meeting was held at the Coralville City Hall to discuss the Constantino suit and an internal investigation involving Johnson. Brian Gruhn, a Cedar Rapids attorney who frequently represented the city in employment matters, was there. At that meeting, or soon thereafter, the assistant city attorney, Kir-stene Diehl, authorized attorney Gruhn to file an appearance for the city and Johnson. Gruhn filed an appearance on March 2, 1998, and moved for additional time on behalf of the city and Johnson. He filed a similar motion asking for the same relief on March 5,1998.

On March 12 a second meeting was called at city hall to discuss the Constanti-no suit and the internal affairs investigation of Johnson. At this meeting, both attorneys Gruhn and Abernathy were present. On March 19, the court granted Gruhn’s motion for additional time. Apparently no answer was ever filed, and on April 3, 1998, Constantino filed a dismissal with prejudice; the case had been settled. Johnson was upset about the insurance company’s payment of $55,000 to Constan-tino, claiming this was an admission of Johnson’s wrongdoing. He filed suit against EMC and the city, claiming if the case had been allowed to proceed to trial, a jury would have rejected Constantino’s claim and Johnson would have been exonerated. Johnson complains that the city, through EMC, failed even to file an answer denying Constantino’s allegations.

As part of Johnson’s preparation for his suit against Coralville and EMC, he deposed the individuals present at the Coral-ville meetings on February 27 and March 12, questioning these individuals as to the statements made at those meetings. The city objected to these questions on the ground of attorney-client privilege, and it instructed the witnesses not to answer. Johnson sought and obtained an order compelling discovery, and the city filed this certiorari action. See Hadjis v. Iowa Dist. Ct., 275 N.W.2d 763, 765-66 (Iowa 1979) (certiorari proper action to challenge ruling on discovery issue).

II. The Issue.

The sole issue to be resolved is whether the discussions at the city hall meetings of February 27 and March 12 are subject to discovery. The city argues these discussions are privileged as communications between attorney and client. Johnson contends, and the district court ruled, that the communications may be discovered because attorney Gruhn represented both the city and Johnson, thus the discussions fall within an exception to the attorney-client privilege, known as the joint-client exception. The principle of this exception is explained:

When two or more persons, each having an interest in some problem, or situation, jointly consult an attorney, their confidential communications with the attorney, though known to each other, will of course be privileged in a controversy of either or both of the clients with the outside world, that is, with parties claiming adversely to both or either of those within the original charmed circle. But it will often happen that the two original clients will fall out between themselves and become engaged in a controversy in which the communications at their joint consultation with the lawyer may be vitally material. In such a controversy it is clear that the privilege is inapplicable. In the first place the policy of encouraging disclosure by holding out the promise of protection seems inapposite, since as between themselves neither would know whether he would be more helped or handicapped, if in any dispute between them, both could invoke the shield of secrecy. And secondly, it is said that they had obviously no intention of keeping these secrets from each other, and hence as between themselves it was not intended to be confidential.

1 John W. Strong, McCormick on Evidence § 91, at 365-66 (5th ed.1999) (footnote omitted) [hereinafter McCormick].

While this statement of the principle has been couched in terms of clients who “jointly consult” an attorney, it is clear that actual consultation by both clients is not a prerequisite to the application of the joint-client exception. McCormick § 91, at 366-67. Further,

[wjhere the statement is made directly to the attorney hired by the insurer, there is no question that the privilege applies in an action brought by a third person, nor does it seem disputed that there is no privilege where the controversy is between the insured, or someone claiming under him, and the company itself or the company’s liability under the policy.

Id. at 367.

We have provided this rationale for the joint-client exception:

It is simply that if it appears the secret or imparted communication is such that the attorney is under a duty to divulge it for the protection of the others he has undertaken to represent in the involved transaction, then the communication is not privileged.

Henke v. Iowa Home Mut Cas. Co., 249 Iowa 614, 619, 87 N.W.2d 920, 924 (1958).

In Henke, as in the present case, an insurance company hired an attorney to represent itself and its insured. 249 Iowa at 616, 87 N.W.2d at 922. The insurance company involved in Henke, which was later sued by its insured, denied that, by mere reason of the attorney’s representation of the insured, an attorney-client relationship was established. We said:

The contention is without merit. The fact that another selects and pays an attorney does not control the relationship of attorney-client. It may be a factor to be considered in proving that such relationship exists, but there are many other more important factors, such as the undertaking by the attorney, and the acceptance of his services by the other. When with due knowledge one assents to the appearance in court of an attorney in his behalf, an attorney-client relationship must be presumed.

Id. at 617, 87 N.W.2d at 923.

In a discovery dispute, the burden to establish an applicable privilege is on the party resisting discovery. If the privilege is established and the question becomes whether an exception to it applies, the burden of persuasion shifts to the proponent of the exception. FDIC v. Ogden Corp., 202 F.3d 454, 460 (1st Cir. 2000).

The evidence is undisputed that the assistant city attorney told Johnson on February 20, 1998, that the city and EMC would provide an attorney for Johnson, and Johnson did not protest. The assistant city attorney suggested that Johnson call EMC’s claims manager about an attorney. Johnson then contacted Abernathy on the assumption Abernathy would be representing Johnson. Abernathy responded that he had not been hired to represent the defendants and that EMC was apparently going to handle it internally. Johnson apparently had no objection to who represented him; his only objection was voiced later as to the quality of the representation. EMC, he claimed, should not have tacitly admitted Johnson’s wrongdoing by failing to file an answer to the Constantino petition and by settling the case by payment of $55,000.

To support his reliance on the joints client exception, Johnson attempts to show attorney Gruhn was Johnson’s lawyer as well as the city’s lawyer on February 27, 1998, and March 12, 1998, the dates on which the city met with attorney Gruhn to discuss the Constantino suit. The city responds that clearly Gruhn was not Johnson’s attorney on the earlier date because Gruhn did not file an appearance for Johnson until March 2. As to the March 12 meeting, the city responds:

Johnson admits that he never had any contact with Gruhn and was not aware that Gruhn had entered an appearance on his behalf until after the Constantino case was settled.... Because Johnson cannot show that he sought advise or assistance from Gruhn, and because Gruhn was engaged for the limited purpose of obtaining an extension of time to avoid default, there was never an attorney-client relationship between Johnson and Gruhn that could have resulted in a waiver of the City of Coralville’s privilege at the March 12 meeting or after.

A. The February 27 meeting. We reject Johnson’s claim that an attorney-client relationship existed as of the February 27 meeting. His argument is the relationship began before Gruhn filed his appearance on March 2, 1998, because the

[solicitation of Gruhn [by the city] and the decision for Gruhn to file an appearance on behalf of Britt [Johnson] most likely occurred at the February [2]7 meeting [where] it is clear that Britt [Johnson] and the Constantino lawsuit were discussed.

If Johnson and Gruhn had entered into a contract of employment as of February 27, Johnson’s argument that the attorney-client relationship began on that date would have merit, but they did not have a contract between them then, or at any time. Gruhn undertook the defense of Johnson at the request of the assistant city attorney, a third party. This is sufficient, under Henke, to establish an attorney-client relationship, but it does not happen automatically. As we said in Henke,

[t]he fact that another selects and pays an attorney does not control the relationship of attorney-client [but it] may be a factor to be considered in proving that such relationship exists....

249 Iowa at 617, 87 N.W.2d at 923. We then said:

[B]ut there are many other important factors, such as the undertaking [of the representation] by the attorney, and the acceptance of his services by the other.

Id.

Applying this test, it is clear that, as of February 27, the date of the first meeting, there was not an attorney-client relationship between Gruhn and Johnson. There was no contract of employment, no “undertaking” by the lawyer, and no acceptance of the attorney-client relationship by Johnson, who did not even know of it. Because there was not an attorney-client relationship on February 27, 1998, the communications between the City of Coralville and its lawyer on that date are privileged because the joint-client exception is inapplicable. The district court erred in compelling discovery of the February 27 communications. As to that part of the order to compel, the writ of certiorari is sustained.

B. The March 12 meeting. By the time of the second meeting on March 12, there was an attorney-client relationship between Gruhn and Johnson that qualified for the joint-client exception. By that time, Johnson was aware that someone would represent him, having been informed by the assistant city attorney that the city had a legal obligation to provide a defense. More importantly, Gruhn was in fact representing Johnson because he had filed two appearances and motions prior to the March 12 meeting. Gruhn testified that, as of that date, he had not withdrawn his appearance. In fact, no other attorney entered the case for Johnson; as of the dismissal of Constantino’s suit on April 3, Gruhn was still shown as the attorney of record. (The suit was apparently settled internally by EMC.) Gruhn had performed a valuable service for Johnson, as well as the city, by preventing a default judgment against them.

While in some situations joint clients’ interests may be so intrinsically adverse as to make a finding of a joint-client relationship untenable, the critical time for determining whether an attorney-client relationship exists is when the relationship is formed. In Ogden Corp., 202 F.3d at 457-58, Ogden and a group of creditors sought to collect amounts claimed by each against a common defendant. A dispute later arose about the allocation of the proceeds, and two of the banks filed suit against Ogden. A discovery issue arose as to whether the joint-client exception applied to the relationship between Ogden, the banks, and the attorney who was leading the collection effort. Ogden argued there was an “intrinsic” adversity that destroyed the parties’ identity of interests and that this destroyed any joint-client relationship. Id. at 463. The court rejected this argument, stating:

This argument is spun from whole cloth. At that crucial time — the time when [the attorney] and the banks tied the attorney-client knot — no one had expressed the view that the allocation provision in the restated assignment agreement was inscrutable, and there was no reason to believe that the beneficiaries of the insurance would part company when it came time to divide the proceeds. For aught that appeared, Ogden’s interest was entirely congruent with [the banks’]. No more was exigi-ble: the mere possibility of a future dispute did not prevent the formation of a valid joint client relationship.

Ogden Corp., 202 F.3d at 463 (emphasis added).

In the present case, as in the Ogden Corp. case, as of the time the appearance was filed on behalf of Johnson, there was no reason to believe that the city and Johnson, both benefited by Gruhn’s appearance and motion for additional time, would part company when it came time to settle the suit. For all these parties understood, their joint interest was in avoiding a judgment against them. Johnson’s complaint about the implications of EMC’s settlement of the case did not create intrinsic adversity in the attorney-client relationship from the outset. Johnson’s problems with EMC and the city, and his dissatisfaction with Gruhn’s representation, did not arise until well after the March 12 meeting, when Johnson realized that EMC had allegedly impugned his reputation by settling the case. Thus, as of March 12, the joint-client exception to the attorney-client privilege applied.

We conclude that, as of the February 27 meeting, Johnson did not have an attorney-client relationship with Gruhn, but as of the March 12 meeting, he did. Accordingly, we sustain the writ as to the district court’s order regarding evidence from the February 27 meeting but annul it as to the order for production of evidence from the March 12 meeting.

WRIT SUSTAINED IN PART AND ANNULLED IN PART.

SNELL, S.J., participates in lieu of STREIT, J., who takes no part.


text:
    Teri HARVEY, Appellant, v. CARE INITIATIVES, INC. d/b/a Fonda Care Center a/k/a Fonda Nursing and Rehab Center, Appellee.
    No. 99-1074.
    Supreme Court of Iowa.
    Oct. 10, 2001.

      Willis J. Hamilton of Hamilton Law Firm, P.C., Storm Lake, for appellant.
    David L. Charles and Margaret C. Callahan of Belin Lamson McCormick Zum-bach Flynn, P.C., Des Moines, for appel-lee.

       Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2001).

   CADY, Justice.

In this appeal we must decide if a tort action for retaliatory termination of employment is applicable to independent contractors. We conclude an independent contractor has no tort action for retaliatory termination of a contract under the allegations of the petition and affirm the summary judgment granted by the district court.

I. Background Facts and Proceedings.

Teri Harvey worked for Care Initiatives, Inc. under a written contract, which included a provision for termination of the agreement upon thirty days notice by either party. Care Initiatives operated a nursing home and rehabilitation center in Fonda, Iowa. Harvey performed various social worker services at the nursing home as a consultant. The contract required Harvey to work twelve hours each week for the home. She had similar contracts with other nursing homes. Harvey acknowledged she was an independent contractor.

Care Initiatives gave Harvey written notice of the termination of the contract a few months after Harvey started her employment under the contract. Harvey responded by filing an action for wrongful termination. She claimed the termination violated public policy.

Care Initiatives moved for summary judgment. It claimed a cause of action for wrongful discharge in violation of public policy did not exist for independent contractors. In response to the motion for summary judgment, Harvey produced documents suggesting she was terminated for allegedly filing a complaint about the nursing home with the state’s Department of Inspection and Appeals. The complaint centered on a number of changes implemented by the nursing home administrator, including a ban on smoking by residents and staff. Harvey disagreed with the ban, and voiced her opposition to the administrator. Harvey believed the ban violated the rights of the residents.

Shortly after the smoking ban went into effect, the Department of Inspection and Appeals made a surprise inspection of the nursing home to look into a complaint that rights of the residents were being violated. Harvey received the written termination notice the same day. She continued to be paid for thirty days.

The district court granted the motion for summary judgment. It determined Harvey had no claim for retaliatory discharge.

Harvey appeals. She argues the same public policy protection against retaliatory discharge for employees at-will should extend to independent contractors.

II. Standard of Review.

Our review of a ruling granting summary judgment is for correction of errors at law. Am. Family Mut. Ins. Co. v. Allied Mut. Ins. Co., 562 N.W.2d 159, 163 (Iowa 1997).

III. Wrongful Discharge.

An at-will employee has a cause of action in tort for wrongful termination of employment when discharged by an employer in violation of public policy. Fitzgerald v. Salsbury Chem., Inc., 613 N.W.2d 275, 281 (Iowa 2000). This cause of action is a recognized exception to the at-will employment doctrine, which would otherwise serve to deprive a wrongfully discharged employee of a remedy. Id. In first adopting this public policy exception in 1988, we determined the cause of action was necessary to prevent the conduct of an employer to fly in the face of clear public policy. Springer v. Weeks & Leo Co., 429 N.W.2d 558, 560-61 (Iowa 1988). We also recognized that our employment laws should accommodate the clear expectations of a worker, and protect against the improper interference with those expectations. Id. No employee should face the dilemma of giving in to improper threats by employers or be subject to discharge without a remedy. See Fitzgerald, 613 N.W.2d at 284; Jones v. Lake Park Care Ctr., Inc., 569 N.W.2d 369, 377 (Iowa 1997) (“Terminating an employee for refusing to do an illegal act is a violation of public policy.”).

We have never squarely considered whether the wrongful discharge tort encompasses those who hire independent contractors, as well as the employer-employee relationship. Generally, most courts have refused to extend a wrongful termination action to independent contractors and other non-employees. See Driveaway & Truckaway Serv., Inc. v. Aaron Driveaway & Truckaway Co., 781 F.Supp. 548, 551-52 (N.D.Ill.1991); Sistare-Meyer v. YMCA, 58 Cal.App.4th 10, 67 Cal.Rptr.2d 840, 842, 844 (1997); Ostrander v. Farm Bureau Mut. Ins. Co., 123 Idaho 650, 851 P.2d 946, 947 (1993); New Horizons Elees. Mktg., Inc. v. Clarion Corp., 203 Ill.App.3d 332, 149 Ill.Dec. 5, 561 N.E.2d 283, 285 (1990); Wilmington v. Harvest Ins. Cos., 521 N.E.2d 953, 956 (Ind.Ct.App.1988) (dicta); MacDougall v. Weichert, 144 N.J. 380, 677 A.2d 162, 166 (1996); see also Birchem v. Knights of Columbus, 116 F.3d 310, 315 (8th Cir.1997) (N.Dlaw); McNeill v. Sec. Benefit Life Ins. Co., 28 F.3d 891, 893 (8th Cir.1994) (Ark.law). But see Banco, Inc. v. Wal-Mart Stores, Inc., 178 F.3d 8, 13-14 (1st Cir.1999) (statute sufficiently broad to include independent contractors); Marquis v. City of Spokane, 130 Wash.2d 97, 922 P.2d 43, 51 (1996) (same). These courts recognize a long-standing distinction in the law between employees and independent contractors. We think this distinction is fundamental to our analysis in considering whether to extend the tort to independent contractors.

In Springer, we adopted the tort of wrongful discharge primarily out of need, without defining the source of that need. We reasoned that an employer could otherwise trample on clear public policy mandates and expectations in terminating employees. See Springer, 429 N.W.2d at 560-61. Yet, other courts have found the source of this need to be derived from the inequity of the bargaining position in a typical at-will employer-employee relationship, and the inability of employees to otherwise obtain protection. See Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353, 357 (1978); New Horizons Elees. Mktg., Inc., 149 Ill.Dec. 5, 561 N.E.2d at 285; MacDougall, 677 A.2d at 166.

On the other hand, independent contractors do not require the same type of protection. Sistare-Meyer, 67 Cal.Rptr.2d at 844. They have greater control and flexibility in their work and in the hiring process, and the hiring party assumes fewer responsibilities towards independent contractors than at-will employees. Id. The distinct differences in the nature of the relationship between independent contractors and at-will employees not only suggest a greater need to protect at-will employees, but existing principles of contract law provide independent contractors with remedies not available to employees. See New Horizons Elecs. Mktg., Inc., 561 N.E.2d at 286-87; MacDougall, 677 A.2d at 166. Thus, an independent contractor can not only negotiate the circumstances governing the termination of a contract, but has contract remedies to enforce all expressed or implied terms of a contract. This diminishes the need for court-based remedies. Moreover, judicial extension of tort remedies into contracts without clear legislative authority can essentially nullify terms agreed to by the parties to the contract. See McNeill, 28 F.3d at 893. We find no compelling need, as we did for at-will employees, to support a wrongful termination tort for independent contractors.

This conclusion, however, does not end our analysis. We must also consider whether our legislature intended to establish a wrongful discharge action for independent contractors by declaring public policy that would embrace non-employees.

We have' stressed that the tort of wrongful termination must be based upon a clear, well-recognized public policy. Fitzgerald, 613 N.W.2d at 282; Springer, 429 N.W.2d at 560. Additionally, we primarily look to our statutes to find a declaration of public policy. Fitzgerald, 613 N.W.2d at 283.

Iowa Code section 135C.46 declares a clear public policy against retaliatory discharge for initiating or participating in a complaint against a health care facility. Iowa Code § 135C.46(1) (1997). It provides, in relevant part:

A facility shall not ... retaliate in any way against a resident or an employee of the facility who has initiated or participated in any proceeding authorized by this chapter.

Id. Yet, the language of the statute restricts its protection to “a resident or an employee of the facility.” Id.

The statute does not define the term “employee.” Thus, we first look to the ordinary and common meaning of the term. Iowa Code § 4.1(38); T & K Roofing Co. v. Iowa Dep’t of Educ., 593 N.W.2d 159, 162 (Iowa 1999). Furthermore, we construe statutory language consistent with our case law and the common law. See State v. Pace, 602 N.W.2d 764, 771 (Iowa 1999) (common law); Sourbier v. State, 498 N.W.2d 720, 723 (Iowa 1993) (case law). Words that have a well-defined meaning in the common law have the same meaning in statutes dealing with similar subject matter. See 2B Norman J. Singer, Sutherland Statutory Construction § 50.03, at 150 (Clark Boardman Callaghan 6th ed.2000).

The term “employee” has traditionally been understood to relate to a master-servant relationship, and our laws have always drawn a distinction between an employee and an independent contractor in deciding whether an employment relationship exists. See Kragel v. Wal-Mart Stores, Inc., 537 N.W.2d 699, 702 (Iowa 1995) (negligence); Mermigis v. Servicemaster Indus., Inc., 437 N.W.2d 242, 245 (Iowa 1989) (worker’s compensation). In an employment setting, an employee has a far different meaning than an independent contractor. See Iowa Mut. Ins. Co., 572 N.W.2d at 542 (in cases categorizing the employment relationship, the difference between an employee and an independent contractor primarily focuses on the extent of control). Similarly, the United States Supreme Court has consistently taken the position that when Congress uses the term “employee” without providing a specific definition, it intends to use the conventional master-servant relationship based upon common law doctrines. Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23, 112 S.Ct. 1344, 1348, 117 L.Ed.2d 581, 589 (1992).

Clearly, our legislature could have extended broad coverage of the prohibition against retaliation under section 135C.46 in the same manner as it provided that any “person” could file a complaint against a health care facility alleging violation of a requirement or rule under section 135C.37. This section provides, in relevant part:

A person may request an inspection of a health care facility by filing with the department ... a complaint of an alleged violation of applicable requirements of this chapter or the rules adopted pursuant to this chapter.... The name of the person who files a complaint with the department ... shall be kept confidential....

Iowa Code § 135C.37. Moreover, our legislature specifically defined a “person” very broadly to include “any individual, firm, partnership, corporation, company, association or joint stock association.” Id. § 1350.1(14). Thus, our legislature clearly wanted all persons to report violations. Yet, when the legislature came to framing its protection from discrimination and retaliation for those who do file complaints, it limited its scope to an “employee” or a “resident.” It narrowed its approach from any “person” to any “resident” or “employee.” We must presume this limitation was intended, and that our legislature intended to exclude independent contractors. See Pace, 602 N.W.2d at 771. Thus, the public policy against retaliatory discharge expressed by our legislature in section 135C.46 does not apply to independent contractors.

We recognize an argument exists that an independent contractor should not have its contract terminated by exposing alleged wrongdoing any more than an employee should not be terminated for exposing the same alleged wrongdoing. See Mouton, 31 Idaho L.Rev. at 360-62. However, we must refrain from extending protection to workers from unfair treatment after our legislature has weighed in on the issue and established the parameters of the governing public policy. Additionally, we must avoid declaring public policy with generalized concepts of fairness and justice. Fitzgerald, 613 N.W.2d at 283.

Notwithstanding, Harvey argues that a specific public policy to support a tort for independent contractors can be derived from section 135C.37. She points out that not only does the statute permit all “persons” to file complaints, but it also protects complainants by requiring their names to be kept confidential. Iowa Code § 135C.37. She argues this reveals our legislature wanted to encourage persons to file complaints, and any retaliation for doing so would undermine this policy.

We do not limit our search for public policy to statutes like section 135C.46 which specifically mandate protection. See Fitzgerald, 613 N.W.2d at 283. Statutes can imply a prohibition against termination as well as express it. Id. However, section 135C.37 cannot be viewed in isolation. See State v. DeCamp, 622 N.W.2d 290, 294 (Iowa 2001). Our legislature has made it clear through section 135C.46 that the prohibition against retaliatory discharge only applies to residents and employees of the health care facility. If our legislature wished to extend the prohibition to all persons, it would have used the term “persons.”

IV. Conclusion.

We fail to discern any clear public policy that prohibits a person or business from discharging an independent contractor in retaliation for reporting a health care facility violation. We conclude there is no cause of action in Iowa for retaliatory discharge of an independent contractor for filing a complaint against a care facility. The district court properly granted summary judgment.

AFFIRMED.

SNELL, S.J., participates in lieu of STREIT, J., who takes no part.

      . The petition also included a claim for slander. This claim was dismissed by the district court, and does not form the basis of any issue on appeal.

      . For purposes of this appeal, Harvey concedes her status as an independent contractor. Normally, this would require a factual determination based on the nature of the working relationship and many other circumstances, not necessarily on any label used to identify the parties in the contract. Rouse v. State, 369 N.W.2d 811, 813 (Iowa 1985) (ordinarily, the relationship of employer and employee is a question of fact); see Iowa Mut. Ins. Co. v. McCarthy, 572 N.W.2d 537, 542-43 (Iowa 1997) (listing factors to consider in characterizing, nature of relationship).

      . Employees have many benefits that independent contractors do not have, such as worker’s compensation coverage, unemployment benefits, and employer contributions to social security. See Donald R. Mouton, Comment, Ostrander v. Farm Bureau Mutual Insurance Company: Why is the Idaho Supreme Court Providing No Recourse to Independent Contractors Discharged in Bad Faith?, 31 Idaho L.Rev. 353, 362 (1994). However, employees are subject to much greater control and supervision by their employers. Id.; see Sistare-Meyer, 67 Cal.Rptr.2d at 844.

      .The availability of contract remedies is all that is required, not a particular remedy that will actually provide relief. See Driveaway & Truckaway Serv., Inc., 781 F.Supp. at 552. It is generally recognized that there is an implied covenant of good faith and fair dealing in a contract. See Restatement (Second) of Contracts § 205, at 99 (1981); 17A Am.Jur.2d Contracts § 380, at 401 (1991). We also recognize that a contract in violation of public policy is void. However, we need not examine these general rules because Harvey's claim does not rest on contract theories, nor does she assert that tort theories are necessary because no contract claims exist.


author: MAHAN, P.J. .

text:
    STATE of Iowa, Plaintiff-Appellee, v. Andrew Dean SKOLA, Defendant-Appellant.
    No. 00-1183.
    Court of Appeals of Iowa.
    May 23, 2001.
    Linda Del Gallo, State Appellate Defender, and James G. Tomka, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Denise A. Timmins, Assistant Attorney General, J. Patrick White, County Attorney, and Linda M. Paulson, Assistant County Attorney, for appellee.
    Heard by MAHAN, P.J., and MILLER and VAITHESWARAN, JJ.
   MAHAN, P.J. .

Andrew Skola appeals from his conviction and sentence for second-degree theft in violation of Iowa Code sections 714.1(4) and 714.2(2) (1999) and possession with intent to deliver marijuana in violation of sections 124.401(l)(d) and 124.204(4)(m). He contends (1) the trial court erred in overruling his motion to suppress, because the search warrant was not supported by probable cause, and (2) he was denied his constitutional right to effective assistance of counsel if error was not properly preserved on the first issue. We affirm.

Background Facts and Proceedings. In April 1999, Iowa City police Officer Douglas Hart conducted a drug investigation of Lisa and Larry Sanders, which ultimately led to their arrest. In exchange for sentencing considerations, the Sanders provided Hart with information about Andrew Skola, the defendant. Sanders told Hart that Skola “typically had about one pound of marijuana in his trailer at any time” and they had purchased marijuana from Skola in the past. The Sanders refused to participate in a controlled buy, citing safety reasons.

In July 1999, Sandy Cole, the trailer court manager, called Hart and related several problems at the trailer court related to drug activity and drug sales. A few days later, she called Hart again and told him Skola and his friends had been smoking marijuana “in between the trailers” the night before. Hart asked Cole about the day and time of garbage collection at the trailer court. Cole informed Hart garbage pickup occurred Wednesday mornings.

On Tuesday, July 13, 1999, at about 8:00 p.m., Hart drove by Skola’s trailer and observed a brown plastic garbage can next to the trailer. He drove by “to see if I had to get up the next morning to go through his [Skola’s] garbage.” Hart wanted to go through the garbage to corroborate the information received from Cole and the Sanders, in order to obtain a search warrant for Skola’s residence.

Hart returned to the trailer at 5:00 a.m. on Wednesday, July 14, 1999, and noticed the brown plastic garbage can had been moved toward the street. He pulled up to the garbage can, opened the lid, and observed three brown paper sacks. Hart took the sacks back to the police station to determine if they contained contraband or anything else to corroborate the information he had received. In one bag, Hart found two marijuana roaches, marijuana stems and seeds, and an envelope addressed to Skola. Based on this information and the information provided by the Sanders and Cole, Hart applied for and received a search warrant for Skola’s home.

Evidence seized upon execution of the search warrant led to the following charges: second-degree theft, in violation of Iowa Code sections 714.1(4) and 714.2(2) (count I); possession with intent to deliver marijuana, in violation of Iowa Code sections 124.401(l)(d) and 124.204(4)(m) (count II); and failure to pay excise tax on unlawful dealing in certain substances, in violation of Iowa Code sections 453B.12, 453B.l(3)(b), 453B.3 and 124.204(4)(m) (count III). Skola filed a motion to suppress, which the district court denied. After a trial on the minutes, the district court found Skola guilty as charged on counts I and II. The court sentenced Skola to an indeterminate five-year term on each count, to be served concurrently. The court imposed a $1000 fine and suspended Skola’s license for 180 days. Skola appeals.

Scope of Review. We review constitutional claims de novo in light of the totality of the circumstances. State v. Ortiz, 618 N.W.2d 556, 558-59 (Iowa 2000). “Fact-findings underlying the district court’s ruling on the motion to suppress are binding on us if supported by substantial evidence.” State v. Cline, 617 N.W.2d 277, 280 (Iowa 2000) (quoting State v. Cadotte, 542 N.W.2d 834, 836 (Iowa 1996)).

Motion to Suppress. Skola argues no probable cause existed to support the search warrant issued in this case. He points to the district court’s conclusion, “if the warrant relied on [Sanders and Cole] for probable cause, then the warrant would no doubt fail.” Therefore, the validity of the warrant depended on the garbage evidence, which Skola argues the State obtained illegally because it did not conduct a surveillance of his garbage prior to its seizure. We assume, without deciding, the district court’s conclusions regarding Sanders and Cole were correct, and the validity of the warrant depended upon whether Hart legally obtained the marijuana evidence from Skola’s garbage.

The Fourth Amendment requires a search warrant to be supported by probable cause. U.S. Const. amends. IY, XIV, § 1; State v. Gogg, 561 N.W.2d 360, 363 (Iowa 1997). Probable cause exists if “a reasonably prudent person would believe that a crime has been committed on the premises to be searched or evidence of a crime is being concealed there.” State v. Green, 540 N.W.2d 649, 655 (Iowa 1995). A probable cause finding must rest on “a nexus between criminal activity, the things to be seized and the place to be searched.” Id. (quoting State v. Weir, 414 N.W.2d 327, 330 (Iowa 1987)). In a close case, because of our preference for the use of warrants, we resolve doubts in favor of the warrant’s validity. State v. Gathercole, 553 N.W.2d 569, 574 (Iowa 1996).

We first must address the State’s contention Skola failed to preserve error by challenging the necessity of continuous surveillance of his garbage in the district court. Therefore, the State argues, he should be precluded from raising the issue on appeal. We agree.

When a party fails to alert the district court to its contentions, that party cannot thereafter rely on those contentions to seek a reversal on appeal. State v. Halliburton, 539 N.W.2d 339, 342 (Iowa 1995); State v. Rosenstiel, 473 N.W.2d 59, 61 (Iowa 1991). At the district court, Sko-la challenged the reliability of the information provided by Sanders and Cole. He challenged various aspects of the search of his garbage, but did not raise the surveillance argument he raises now. Thus, Sko-la is precluded from raising the issue of continuous surveillance of garbage on appeal.

We will address the merits of Sko-la’s argument, however, to dispense with his ineffective assistance of counsel claim. Even if Skola properly preserved error, established ease law does not require surveillance of garbage left for collection in order to render it unprotected under the Fourth Amendment. Skola’s arguments are without merit.

The cases upon which Skola relies do not require the State to conduct a surveillance of garbage set out for collection before seizing it. In California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988), an investigator received information indicating Greenwood might be engaged in narcotics trafficking. The investigator “sought to investigate this information by conducting a surveillance of Greenwood’s home.” California v. Greenwood, 486 U.S. 35, 37, 108 S.Ct. 1625, 1627, 100 L.Ed.2d 30, 35 (1988). The case does not indicate whether the investigator watched Greenwood place the garbage outside his home before asking the regular trash collector to pick up Greenwood’s garbage and turn it over to her. The Supreme Court concluded:

[Respondents exposed their garbage to the public sufficiently to defeat their claim to Fourth Amendment protection. It is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public.... [H]aving deposited their garbage “in an area particularly suited for public inspection and, in a manner of speaking, public consumption, for the express purpose of having strangers take it,” respondents could have had no reasonable expectation of privacy in the inculpatory items that they discarded.

Id. at 40-41, 108 S.Ct. at 1628-29, 100 L.Ed.2d at 36-37 (footnotes and citations omitted). The Supreme Court upheld the validity of the warrantless search and seizure of garbage left out for collection. Its decision did not rely upon the surveillance of garbage.

This court addressed the issue of war-rantless search and seizure of garbage in State v. Henderson, 435 N.W.2d 394 (Iowa Ct.App.1988). Law enforcement suspected Henderson of theft after sheepskins were stolen from a tannery. Id. at 395. The sheriffs department asked the garbage collection company to keep Henderson’s garbage separate, transport it to the landfill, and allow the sheriffs office to examine it. Id. The police searched Henderson’s garbage in this manner on approximately eight dates. Id. Based in part on the trash searches, officers obtained a search warrant for Henderson’s residence, where they located the stolen sheepskins. Id. The court, relying on Greenwood, upheld the search, concluding:

We find the Supreme Court’s rationale [in Greenwood ] persuasive. The defendant here also put opaque plastic bags in an area which they were customarily removed by trash collectors .... The Supreme Court has stated any Fourth Amendment analysis must turn on such factors as “ouh societal understanding that certain areas deserve the most scrupulous protection from government invasion.” We agree with the Supreme Court that “society as a whole possesses no such understanding with the regard to garbage left for collection at the side of a public street.” We determine the use of evidence obtained by searching defendant’s garbage did not intrude upon his legitimate expectation of privacy and therefore, was properly considered by the magistrate in issuing a search warrant of the defendant’s premises.

Id. at 396-97 (citations omitted). The decision, like that in Greenwood, did not rely upon the surveillance of garbage. Skola’s arguments to the contrary are without merit.

Skola urges this court to establish a “surveillance” requirement under the terms of the Iowa Constitution. To support his argument, he cites cases in which other states’ supreme courts have held as unconstitutional under the state constitution an officer’s warrantless search of a person’s garbage.

Article I, section 8 of the Iowa Constitution contains language nearly identical to the Fourth Amendment guarantee of the U.S. Constitution. Henderson, 435 N.W.2d at 396. Therefore, they are generally “deemed to be identical in scope, import and purpose.” Id. (quoting State v. Bishop, 387 N.W.2d 554, 557 (Iowa 1986)). Results reached by the U.S. Supreme Court in construing the federal constitution are persuasive but not binding upon this court in construing analogous provisions in our State constitution. Id.

Skola presents the court with no compelling reason to depart from the holdings in Greenwood and Henderson. The supreme courts of other states, in holding an officer’s warrantless search of a person’s garbage unconstitutional under the state constitution, either relied on the unique language in their constitutions to provide protection to garbage set out for collection, or decided to “respectfully part company” with the U.S. Supreme Court. We refuse to depart from the explicit holding in Henderson that warrantless garbage searches do not violate our state constitution. Based on our precedent and the prevailing opinion of the majority of states, we uphold the validity of warrant-less garbage searches under article I, section 8 of the Iowa Constitution. We affirm the district court’s denial of Skola’s motion to suppress.

Ineffective Assistance of Counsel. Because we conclude Skola’s “surveillance” argument is without merit, Skola’s ineffective assistance of counsel claim also must fail. We need not address this issue.

AFFIRMED.

      . The drug stamp tax charge was eventually dismissed at Skola’s cost.

      . See also State v. Mayes, 666 So.2d 165, 165—66 (Fla.Ct.App.1995) (Determination of probable cause to issue a search warrant does not require continuous monitoring of garbage set out for collection).

      . See State v. Morris, 165 Vt. 111, 680 A.2d 90 (1996); State v. Boland, 115 Wash.2d 571, 800 P.2d 1112 (1990).

      . See State v. Hempele, 120 N.J. 182, 576 A.2d 793, 799-800 (1990) ("Despite the similarity between the text of article I, paragraph 7 of the New Jersey Constitution, and the text of the Fourth Amendment, we have found on several occasions that the former 'affords our citizens greater protection against unreasonable searches and seizures than does the Fourth Amendment.' ")

        . See, e.g., People v. Hillman, 834 P.2d 1271 (Colo.1992); State v. DeFusco, 224 Conn. 627, 620 A.2d 746 (1993); State v. Oquist, 327 N.W.2d 587 (Minn.1982); State v. Trahan, 229 Neb. 683, 428 N.W.2d 619 (1988); State v. Corriere, 545 N.W.2d 773 (N.D.1996).


author: PAUL H. ANDERSON, Associate Justice.

text:
    In re Petition for Transfer to Disability Status of Michael B. LeBARON, an Attorney at Law of the State of Minnesota.
    No. C7-01-1712.
    Supreme Court of Minnesota.
    Oct. 23, 2001.
   ORDER

PAUL H. ANDERSON, Associate Justice.

The Director of the Office of Lawyers Professional Responsibility has filed a petition for stay of proceedings and transfer to disability inactive status with this court. The petition states that respondent Michael B. LeBaron is currently the subject of charges of unprofessional conduct issued by the Director. The Director further states that respondent is currently disabled and is not able to assist in the defense of the disciplinary proceedings or competently represent clients. Pursuant to a stipulation entered into by the parties, the Director requests that the pending disciplinary proceedings be stayed and respondent be transferred to disability inactive status under Rule 28(c), Rules on Lawyers Professional Responsibility (RLPR).

This court has independently reviewed the file and concludes that staying the disciplinary proceedings and transferring respondent to disability inactive status is appropriate.

IT IS HEREBY ORDERED that respondent Michael B. LeBaron is transferred to disability inactive status effective immediately and that the pending disciplinary proceedings be stayed until such time as respondent may file a petition for reinstatement to active status. Upon the filing of a petition for reinstatement to active status, the stay of the disciplinary proceedings will automatically be lifted and a hearing and decision on the pending charges of unprofessional conduct will be required as a precondition to reinstatement in addition to the requirements of Rules 28(d) and 18, RLPR.