author: STREIT, Justice.

text:
    Debra L. PERKINS, Richard L. Wise, Linda R. Wise, Donald Haines, Paul R. Blythe, and Lori R. Blythe, Appellants, v. BOARD OF SUPERVISORS OF MADISON COUNTY, Iowa, Appellee, and Madison County Livestock & Fair Association, Intervenor-Appellee.
    No. 99-0583.
    Supreme Court of Iowa.
    Nov. 15, 2001.
    See also Perkins v. Madison County Livestock & Fair Ass’n, 613 N.W.2d 264.

      G. Stephen Walters of Jordan, Oliver & Walters, P.C., Winterset, for appellants.
    Martin S. Ramsey, County Attorney, for appellee Board.
    James L. Sayre of James L. Sayre, P.C., Clive, for intervenor.
   STREIT, Justice.

Neighbors to the Madison County fairgrounds fear the wished-for figure-eight auto racing will amount to “insanity at its finest.” This case presents a challenge to the county government’s allowing such races during the county fair by the Board of Supervisors exempting the fair from zoning. The appellants are all residents of Madison County, Iowa, and five near the racetrack in issue. The Madison County Board of Supervisors enacted Amendment No. 22 to the Madison County Zoning Ordinance (the “Ordinance”) to exempt the Madison County fairgrounds run by the Madison County Livestock and Fair Association from the Ordinance for the five days of the fair. The appellants contend Amendment No. 22 should be struck down on several related constitutional grounds, as a violation of the Ordinance, and as an illegal delegation of power to the Association. We find the Madison County Board of Supervisors had authority to enact Amendment No. 22 and did not illegally delegate power to the Association. We also find Amendment No. 22 is valid spot zoning. It does not violate the Privileges and Immunities Clause and does not constitute a taking of private property. We affirm the district court’s denial of the petition for writ of certiorari.

I. Factual and Procedural History

A. Prior Litigation

In 1996 the Madison County Livestock and Fair Association constructed a racetrack to hold figure-eight races. The Association is an agricultural society under chapter 174 of the Iowa Code. Debra Perkins, Richard Wise, Linda Wise, Donald Haines, Paul Blythe, and Lori Blythe (all the foregoing, the “property owners”) each resides near the Madison County Fairgrounds.

The property owners brought suit seeking to have the racetrack removed or to permanently enjoin figure-eight racing at the fairgrounds. The district court held the races were not a nuisance, but found the Association violated the zoning ordinances by not obtaining the necessary permit and variance for construction of the track. The court denied an award of damages to the property owners but enjoined the Association from holding figure-eight races until it obtained a special use permit and variance from the local zoning board. The Association appealed the injunction and the property owners cross-appealed arguing the court erred in finding the races were not a nuisance. The Iowa Supreme Court held: the owners and operators of the fairgrounds violated the zoning laws by constructing the racetrack; owners of property located farthest from the racetrack failed to establish the races unreasonably interfered with the use and enjoyment of their property as to constitute a nuisance; and the owner of the property nearest the racetrack established the races were a nuisance. Perkins v. Madison County Livestock & Fair Ass’n, 613 N.W.2d 264 (Iowa 2000) (Perkins I).

B. Current Litigation

In an attempt to comply with the district court’s ruling, the Association applied for a zoning certificate, but was denied. The Association also filed an application for a special use permit and variance. The Board of Adjustment granted the application for both the special use permit and variance to permit figure-eight racing. In response, the property owners filed a petition for writ of certiorari challenging the Board of Adjustment’s issuance of the special use permit and variance. The parties entered a stipulated decree invalidating the issuance of the permit and variance because the Board of Adjustment failed to follow proper administrative procedure and make proper findings of fact.

The Board of Supervisors responded by passing Amendment No. 22 (the “amendment”) to the Ordinance. The amendment exempts fairground property from the Ordinance during the five days of the fair. After written findings of fact were prepared, the Board of Adjustment issued a special use permit and variance to the Association. The property owners filed separate petitions for writ of certiorari challenging the legality of the amendment and the issuance of the special use permit and variance. The Association intervened in both actions. The district court sustained the writ with respect to the issuance of the special use permit, but denied the writ challenging the enactment of the amendment. It is from this action that the property owners currently appeal.

On appeal the Association and the Board of Supervisors filed a motion to dismiss claiming the appeal has been mooted by recently enacted legislation amending Iowa Code section 174.3 (1999). The property owners resisted and this court ruled the motion to dismiss would be submitted with the appeal.

II. Standard of Review

“A writ of certiorari is proper under Iowa Rule of Civil Procedure 306 when one ‘exercising judicial functions ... is alleged to have ... acted illegally.’ ” Dressler v. Iowa Dep’t of Transp., 542 N.W.2d 563, 564 (Iowa 1996) (quoting Iowa R. Civ. P. 306). Our review of a district court certiorari ruling is at law. Iowa R.App. P. 4; see City of Grimes v. Polk County Bd. of Supervisors, 495 N.W.2d 751, 752 (Iowa 1993). “An illegality is established if the board has not acted in accordance with a statute; if its decision was not supported by substantial evidence; or if its actions were unreasonable, arbitrary, or capricious.” Norland v. Worth County Compensation Bd., 323 N.W.2d 251, 253 (Iowa 1982). We are bound by findings of the trial court if they are supported by substantial evidence in the record. Iowa R.App. P. 14(f)(1); Helmke v. Bd. of Adjustment, 418 N.W.2d 346, 347 (Iowa 1988). Evidence is substantial when “a reasonable mind would accept it as adequate to reach a conclusion.” Hasselman v. Hasselman, 596 N.W.2d 541, 545 (Iowa 1999) (quoting Johnson v. Dodgen, 451 N.W.2d 168, 171 (Iowa 1990)). Although our standard of review concerning certio-rari actions is generally limited to errors at law, our review in this case is de novo as to the constitutional challenges raised. Dressier, 542 N.W.2d at 564-65.

III. Ruling on Motion to Dismiss

The Board of Supervisors and the Association filed a motion to dismiss, arguing the issues on appeal are moot because of recently enacted legislation. Since this court directed the Association and Board of Supervisors to submit their joint motion to dismiss with the rest of the appeal, the motion to dismiss will be addressed at this time.

The Iowa General Assembly passed legislation amending Iowa Code section 174.3. Prior to the enactment of the amendment, section 174.3 provided as follows:

During the time a fair is being held, no ordinance or resolution of any city shall in any way impair the authority of the society, but it shall have sole and exclusive control over and management of the fair.

(Emphasis added.)

Section 29 of House File 772 amended section 174.3 as follows:

An ordinance or resolution of a county or city shall not in any way impair the authority of the society, but it shall have the sole and exclusive control over and management of such fair.

1999 Iowa Acts ch. 204, § 29 (emphasis added).

Questions can become moot by a change in the facts after the commencement of an action or by changes in the law after the suit is filed. A case is moot if it no longer presents a justiciable controversy because the issues involved are academic or nonexistent. Iowa Bankers Ass’n v. Iowa Credit Union Dep’t, 335 N.W.2d 439, 442 (Iowa 1983). The key in assessing whether an appeal is moot is determining whether the opinion would be of force or effect in the underlying controversy. See id.

The Association and the Board of Supervisors filed a joint motion to dismiss on June 23,1999. The motion dealt exclusively with the effect, if any, of the amendment to Iowa Code section 174.3. The amendment to Iowa Code section 174.3 became effective on July 1, 1999, after the motion was filed. Unlike Amendment No. 22, this amendment does not make specific reference to zoning ordinances. Furthermore, the July 1, 1999 amendment to Iowa Code section 174.3 does not go so far as to declare laws like Amendment No. 22 have no force or effect. In the event the Iowa legislature rescinded the amendment to section 174.3, Amendment 22⅛ validity would resurface. As such, the amendment to section 174.3 does not render the challenged Amendment void. Since Amendment No. 22 has not been repealed by the Board of Supervisors, the issues before us are not moot and the motion to dismiss is denied.

IV. The Merits

On appeal, the property owners challenge the constitutionality of Amendment No. 22 on seven different grounds. As several of the issues are related, we will discuss some of them in combination. The property owners argue the amendment constitutes a taking of private property without just compensation and violates the Privileges and Immunities Clause of the Iowa Constitution. The property owners also assert the following related issues: (1) the amendment violates the requirements of uniformity and adherence to a comprehensive plan of Iowa Code sections 335.4 and 335.5, respectively; and (2) the amendment is effectively illegal spot zoning. Finally, the property owners challenge actions of the Board of Supervisors as otherwise illegal and as an unreasonable, arbitrary, or capricious exercise of the zoning power. As a corollary, they assert the Board of Supervisors illegally delegated legislative power to the Association. Taking this issue into consideration first, we now turn to the actions of the Board of Supervisors.

A. Authority of the Board of Supervisors

Our legislature has given county boards of supervisors the authority over county zoning matters. Iowa Code §§ 335.3, 335.6. This authority includes the power to designate areas of the county into districts and to regulate the use of property within those districts. See id. §§ 335.3, 335.4. Iowa Code section 335.6 provides in part “[t]he board of supervisors shall provide for the manner in which the regulations and restrictions and the boundaries of the districts shall be determined, established, and enforced, and from time to time amended, supplemented, or changed.” “In addition to the express powers granted by statute to the board of supervisors, many implied powers are authorized in order to properly perform its multiplicity of duties.” Bd. of Supervisors v. Standard Appliance Co., 249 Iowa 438, 441, 87 N.W.2d 459, 461 (1958).

The authority of the Board of Supervisors is not unlimited, but rather, there are procedural and substantive limitations on the actions the board may take. Under Iowa Code section 335.6, a county board of supervisors may not exercise powers granted to it by the legislature over zoning matters until the specified statutory procedural requirements are satisfied. Specifically, the board must publish notice of such action at least once, not less than four, and not more than twenty days before the date of the hearing, in one or more newspapers. Iowa Code §§ 618.14, 331.305. The public notice and hearing requirements apply equally to all zoning changes or amendments. See id. § 335.7. Substantively, the board of supervisors may not enact ordinances or amendments which are unreasonable, capricious, or inconsistent with the spirit or design of the zoning statutes. Keller v. City of Council Bluffs, 246 Iowa 202, 207-08, 66 N.W.2d 113, 116 (1954).

With these principles in mind, we now turn to the precise action taken by the Board of Supervisors. The Board of Supervisors voted to pass Amendment No. 22 to the Ordinance. In relevant part, Amendment No. 22 provides as follows:

H. Madison County Fair Exempt.
No regulation or ordinance adopted under the provisions of this Ordinance shall be construed to apply to that property owned by or under the control of the Madison County Fair and Livestock Association (MCLFA) designated as the “Fairgrounds,” during the course of the five (5) consecutive days of what has traditionally been known as the “Madison County Fair.” No Permit, Variance, or Exception shall be required from the Madison County Zoning Administrator, under any provision of this Ordinance, for any use, temporary building, structure, obstruction, parking lot, street, sign, or similar structure during the course of the “Madison County Fair” as set forth herein. However, any use taking place outside of the Five (5) consecutive days of what has traditionally been known as the “Madison County Fair” or any newly constructed permanent budding, structure, obstruction, excavation, parking lot, street, sign or similar structure shall be subject to the provisions of the Madison County Zoning Ordinance.
As stated in Keller,
[t]he governing body of a municipality may amend its zoning ordinances any time it deems circumstances and conditions warrant such action, and such an amendment is valid if the procedural requirements of the statutes are followed and it is not unreasonable or capricious nor inconsistent with the spirit and design of the zoning statute.

Id. The Board of Supervisors was authorized to enact the Amendment under Iowa Code section 335.6. As discussed below, in enacting the Amendment, the Board of Supervisors acted within their scope of authority and in accordance with the applicable procedural and substantive requirements.

B. Delegation of Power to the Association

The property owners also assert the Board of Supervisors illegally delegated legislative authority to the Association. The Board of Supervisors serves a legislative function in that it “promulgates policies, standards, regulations, or rules of general application and prospective operation.” Bd. of Supervisors v. Dep’t of Revenue, 263 N.W.2d 227, 239 (Iowa 1978). “As the complexity of our society — and the government’s role in it — have increased, the trend has been towards ‘greater liberality in approving delegations of legislative authority.’ ” Larsson v. Iowa Bd. of Parole, 465 N.W.2d 272, 275 (Iowa 1991) (quoting Dep’t of Revenue, 263 N.W.2d at 238).

The property owners seem not to contest the delegation of authority to the Association itself, but that such delegation is not accompanied by adequate procedural safeguards. In support of their argument, they gave numerous, extreme examples of the types of activities the amendment would allow. Before we examine the scope of the delegation, we must first look to the purpose of the delegation itself.

The goal of the Board of Supervisors in enacting the amendment was to grant the Association control and management over the five days of the fair. The amendment is not lacking in procedural safeguards, but it sets out general language to govern the Association. The amendment is designed to allow the Association to make findings and determinations appropriate to the peculiar circumstances of the fair. The general character of the amendment is necessary since it would be difficult, if not impossible, to foresee and delineate all circumstances in which the Association would have authority to act. See, e.g., Cyclone Sand & Gravel Co. v. Zoning Bd. of Adjustment, 351 N.W.2d 778, 782 (Iowa 1984). Any greater specificity would defeat the Board of Supervisors’ purpose of providing a flexible means to accomplish management of the fair. See id. The Board of Supervisors did not abdicate to the Association the right to legislate and the Association is not left with unbridled discretion, as the property owners contend. We will address the issue of the scope of the Association’s authority below.

C. The Effect of Amendment No. 22

The property owners assert several arguments with regard to the effect of the amendment. They challenge the amendment as a violation of the comprehensive plan and uniformity requirements of the Iowa Code and constitute illegal spot zoning. Finally, they argue the amendment is otherwise illegal and an unreasonable, capricious, and arbitrary exercise of the zoning power. We must first examine the function of the amendment.

We start this discussion with the strong presumption of the validity of the ordinance and amendments thereto. Kane v. City Council of Cedar Rapids, 537 N.W.2d 718, 724 (Iowa 1995) (citing Neuzil v. City of Iowa City, 451 N.W.2d 159, 163 (Iowa 1990)). If the reasonableness of the amendment is fairly debatable, we will not substitute our judgment for that of the Board of Supervisors. See id. We will uphold the action of the Board of Supervisors if it is supported by competent and substantial evidence. See id. The court should not interfere with the zoning decisions of the Board of Supervisors unless there is a clear abuse of discretion. See City of Grimes, 495 N.W.2d at 753. The property owners, as challengers of the amendment, have the burden to show the amendment is arbitrary, capricious, and discriminatory. Quality Refrigerated Servs., Inc. v. City of Spencer, 586 N.W.2d 202, 207 (Iowa 1998) (quoting Shriver v. City of Okoboji, 567 N.W.2d 397, 401 (Iowa 1997)).

All of the property owners’ arguments are based on the assumption the amendment is in fact a form of zoning. Zoning is the division of land into distinct districts and the regulation of certain uses and developments within those districts. The property owners further contend the amendment constitutes illegal spot zoning. Spot zoning is the creation of a small island of property with restrictions on its use different from those imposed on surrounding property. Fox v. Polk County Bd. of Supervisors, 569 N.W.2d 503, 508 (Iowa 1997) (quoting Kane, 537 N.W.2d at 723).

The Board of Supervisors, by enacting the amendment, did create a district in the fairgrounds that is regulated in use of the property. The restrictions imposed on the fairgrounds are different from those restrictions imposed on the surrounding property. The amendment clearly exempts the Association from the Ordinance during the five days of the fair. During this limited time, the Association is not subject to any of the requirements of the Ordinance, including the requirements of uniformity and adherence to a comprehensive plan. The surrounding properties are not exempted from the Ordinance at any time. Therefore, the amendment constitutes spot zoning.

However, not all spot zoning is illegal. See Fox, 569 N.W.2d at 508 (citing Montgomery v. Bremer County Bd. of Supervisors, 299 N.W.2d 687, 696 (Iowa 1980)). We have held “there must be substantial and reasonable grounds or basis for the discrimination when one lot or tract is singled out in an amendatory ordinance removing therefrom restrictions imposed upon the remaining portions of the same zoning district.” Fox, 569 N.W.2d at 509 (quoting Keppy v. Ehlers, 253 Iowa 1021, 1023, 115 N.W.2d 198, 200 (1962)). We determine if spot zoning is valid under a three prong test in which we consider: (1) whether the new zoning is germane to an object within the police power; (2) whether there is a reasonable basis for making a distinction between the spot zoned land and the surrounding property; and (3) whether the rezoning is consistent with the comprehensive plan. Little v. Winborn, 518 N.W.2d 384, 388 (Iowa 1994). Even though the district court determined the amendment was valid spot zoning considering all of the above factors, we find one specific factor determinative of this issue. Under the facts of this case, the applicable factor is whether there is a reasonable basis for making a distinction between the fairgrounds and the surrounding property.

“In determining whether there is a reasonable basis for spot zoning, we consider the size of the spot zoned, the uses of the surrounding property, the changing conditions of the area, the use to which the subject property has been put, and its suitability for various uses.” Kane, 537 N.W.2d at 723 (quoting Little, 518 N.W.2d at 387). Of primary importance is whether the fairgrounds have a peculiar adaptability for the uses allowed by the amendment or is merely carved out of a similar tract equally suited to the restrictions of the amendment. See Keppy, 253 Iowa at 1023, 115 N.W.2d at 200.

We must decide each case based on its own peculiar facts. Jaffe v. City of Davenport, 179 N.W.2d 554, 556 (Iowa 1970). We now turn to the specific circumstances of the fairgrounds to determine whether there is a reasonable basis for treating the fairgrounds differently from the surrounding property. The Association took title to the fairgrounds property in 1948 and has been in continual possession of the property since this time. Madison County passed the first zoning ordinance in 1964. Since that time the Board of Supervisors passed other ordinances prior to enacting the current zoning ordinance. The Ordinance went into effect in 1969 and continues to be the applicable zoning ordinance, including amendments thereto, for Madison County. The fairgrounds were in existence and operating as a fair for over six years before the first ordinance and for over ten years before the current Ordinance was enacted. Fair activities and events existed before the time the Madison County ordinance went into effect and have continued to exist without legal abandonment since that time.

The fairground property has been dedicated to the purposes of the Madison County fair for almost half a century. Since the early 1950⅛ there has been an arena at the fairgrounds. The twenty acres of fairground property also includes grandstands, parking, and various buildings constituting a typical county fairground. Various activities have taken place over the years at the fair, including rodeos, tractor pulls, demolition derbies, and three and four-wheeler races. More recently, figure-eight track racing events have taken place. People come to the fairgrounds not only during the traditional fair week, but year round to enjoy the activities held at the fairgrounds. There is a unique dedication of the fairground property because of the various uses and activities that have taken place there for nearly fifty years.

The fairgrounds have been and continue to be well-suited to serve the purposes of holding the Madison County fair and related events. See Jaffe, 179 N.W.2d at 558. The majority of the fairgrounds is zoned agricultural, while a small area is zoned residential. The portion of the fairgrounds where the racetrack is located has always been zoned agricultural. In contrast, none of the property owners’ real estate has ever been used for the purposes of a fair or any other similar event. No rodeos, tractor pulls, demolition derbies, or three and four-wheeler races have ever taken place on the property owners’ land. Rather, their property is zoned exclusively for residential purposes. Therefore, the surrounding property is not similar in all respects of use, character, and adaptability to the fairgrounds area. See id. Given the character and use of the fairgrounds property, it was reasonable for the Board of Supervisors to enact an amendment to the Ordinance enabling the Association to control and manage other suitable fair-time activities and events.

The property owners also argue the amendment is invalid because it is not consistent with the Madison County comprehensive zoning plan. However, the “spirit of a zoning ordinance is not violated, nor inconsistent with a comprehensive zoning ordinance by granting a just and reasonable exception to the amendment based upon the character and use of property not similar to other property in the district....” Keller, 246 Iowa at 210, 66 N.W.2d at 118. The use of the fairgrounds and the character of the property is now and was distinguishable before the adoption of the first zoning ordinance in 1964. See id. The figure-eight race track events are an extension of prior nonconforming arena events at the Madison County fair. There is a reasonable basis for treating the fairgrounds differently from the surrounding property based on the character of the fairgrounds and its suitability to fair-time events. Consequently, the amendment does not violate the comprehensive zoning plan.

In conclusion, the amendment does constitute spot zoning. However, the property owners have failed to show the Board of Supervisors acted unreasonably, arbitrarily, or capriciously in enacting the amendment. We conclude the Board of Supervisors decision to enact the amendment was supported by substantial evidence and is not unreasonable, arbitrary, or capricious or characterized by an abuse of discretion. The board’s action was consistent with the character, use, and adaptability of the fairgrounds property to fair-time events. Because the reasonableness of the amendment is fairly debatable, we will not substitute our judgment for that of the Board of Supervisors. We also conclude the district court correctly applied the law in reaching its conclusion. There was substantial evidence for the trial court to conclude a reasonable basis existed to treat the fairgrounds differently from the surrounding property. Because the Board of Supervisors’ action was supported by substantial evidence and not arbitrary or capricious, the district court correctly denied the property owners’ petition for writ of certiorari. We affirm.

D. Taking

The property owners also allege the amendment constitutes a taking of private property by the government without just compensation in violation of both the Iowa and federal constitutions. The Fifth Amendment of the United States Constitution guarantees private property shall not “be taken for public use, without just compensation.” Cf. Iowa Const, art. I, § 18. Citizens of the United States are further guaranteed no State shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend XIV; Iowa Const, art. I, § 9. The guarantees are “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.... ” Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554, 1561 (1960). We have treated the issue of whether governmental action amounts to an unconstitutional taking on a case-by-case basis. Iowa Coal Mining Co., Inc. v. Monroe County, 494 N.W.2d 664, 670 (Iowa 1993). The test “is essentially one of reasonableness.” Id. (quoting Stone v. City of Wilton, 331 N.W.2d 398, 404 (Iowa 1983)).

As a general matter, the Constitution guards only against inappropriate state action. See, e.g., U.S. Const, art. I, § 10. Specifically, our takings jurisprudence demands consideration of whether government action substantially interferes with an owner’s use and enjoyment of his or her property. The issue then becomes whether the action of the Association in conducting figure-eight racing constitutes governmental action.

The Association is an agricultural society pursuant to chapter 174 of the Iowa Code. As such, it is a separate corporate entity neither owned, nor operated by the municipality of Madison County. Iowa Code § 174.1 (1997). The Association is incorporated under the laws of the State of Iowa for the purpose of holding the Madison County fair. See id. It has been the owner of the real property of the fairgrounds since 1948. Given these facts, the Association is not a governmental body.

The real action the property owners complain of is at the direction of the Association, not Madison County. In fact, Madison County in enacting the amendment has essentially taken no action in the matter of determining the activities to take place during the fair. Given these facts, it is possible to conclude that such exemption of the fairgrounds from the Ordinance cannot constitute state action. However, this ignores the reality of the actions of the local zoning board. Though on its face the amendment is not a racing law, the Board of Supervisors in enacting the amendment has effectively permitted the Association to conduct figure-eight racing. In doing so, the action of the Board of Supervisors constituted government action. The issue then becomes whether this activity rises to the level of a compensable taking.

The original concept of governmental taking contemplated only physical appropriations of property. Today, however, the term also encompasses some governmental action that significantly damages property or impairs its use. See, e.g., United States v. Causby, 328 U.S. 256, 261-62, 66 S.Ct. 1062, 1066, 90 L.Ed. 1206, 1210-11 (1946) (frequent flyovers by airplanes near airport constituted a taking of private property). Government action that neither prevents the best use of an owner’s land, nor extinguishes a fundamental attribute of ownership does not constitute a taking. Causby, 328 U.S. at 262, 66 S.Ct. at 1066, 90 L.Ed. at 1210; Kaiser Aetna v. United States, 444 U.S. 164, 179-180, 100 S.Ct. 383, 393, 62 L.Ed.2d 332, 346 (1979). The government may be required to compensate a property owner if its action: (1) involves a permanent physical invasion of the property; or (2) denies the owner all economically beneficial or productive use of the land. Shriver, 567 N.W.2d at 404 (quoting Hunziker v. State, 519 N.W.2d 367, 370 (Iowa 1994)). We must consider the degree of harm to the surrounding property posed by the activities permitted under the amendment. See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1030, 112 S.Ct. 2886, 2901, 120 L.Ed.2d 798, 822 (1992) (citing Restatement (Second) of Torts §§ 826, 827 (1977)).

The character of the intrusion determines whether a taking has occurred. Schaller v. State, 537 N.W.2d 738, 743 (Iowa 1995) (citing Phelps v. Bd. of Supervisors, 211 N.W.2d 274, 277 (Iowa 1973)). The United States Supreme Court has found government action constitutes a taking of private property when the nature of the intrusion was severe. This is not a case where the government’s action resulted in the complete destruction of the owner’s property. See, e.g., Armstrong, 364 U.S. at 40, 80 S.Ct. at 1563, 4 L.Ed.2d at 1554. Nor is this a case where the government action makes an owner’s property “wholly useless.” Hudson County Water Co. v. McCarter, 209 U.S. 349, 355, 28 S.Ct. 529, 531, 52 L.Ed. 828, 832 (1908). Similarly, we do not have before us a case where the government went beyond mere destruction of the property, but appropriated the property for its own use. Caus-by, 328 U.S. at 262, 66 S.Ct. at 1066, 90 L.Ed. at 1210-11. The severity in this case does not rise to the level of United States military installations’ repeated flooding of a property owner’s land. United States v. Cress, 243 U.S. 316, 327, 37 S.Ct. 380, 385, 61 L.Ed. 746, 753 (1917).

In contending the Association has “taken” their property, the property owners essentially urge us to find government action having any effect, even nominal, on citizens’ private property must be accompanied by just compensation for it to be found constitutional. In Perkins I, we found the figure-eight track racing constituted a nuisance as to Debra Perkins, but not to the other property owners. However, a finding of nuisance does not demand a determination the government action constitutes a taking.

In this case, as to all of the property owners, we conclude the Association’s actions pursuant to the amendment do not rise to the level of a compensable taking of private property. None of the property owners have been denied all use of their property. See Kempf v. City of Iowa City, 402 N.W.2d 393, 401 (Iowa 1987) (quoting Keller, 246 Iowa at 210, 66 N.W.2d at 118) (“if the only reasonable use of the property is seriously affected by the zoning ordinance, the owner should be entitled to relief ... ”). The fundamental attributes of property ownership have not been compromised. See Causby, 328 U.S. at 262, 66 S.Ct. at 1066, 90 L.Ed. at 1210. The record does not demonstrate the property owners will be deprived of productive use of their land; they can continue to use their - property as a residence despite the two days of the fair when the Association conducts figure-eight track racing. Finally, the two days of races the property owners challenge can hardly constitute a permanent invasion of their respective properties. See Shriver, 567 N.W.2d at 404 (quoting Hunziker, 519 N.W.2d at 370). We conclude no compensable taking has occurred as a matter of law.

E. Privileges and Immunities

The property owners also argue the amendment constitutes a violation of the Privileges and Immunities Clause of article I, section 6 of the Iowa Constitution. This article provides that:

[a]ll laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.

Under this provision, the legislature must not act arbitrarily when it classifies citizens. John R. Grubb, Inc. v. Iowa Hous. Fin. Auth., 255 N.W.2d 89, 95 (Iowa 1977). “One who challenges [a] statute on this constitutional ground must negate every conceivable basis which may support the classification, and the classification must be sustained unless it is patently arbitrary and bears no relationship to a legitimate governmental interest.” Id.; accord Utili-Corp United Inc. v. Iowa Utils. Bd., 570 N.W.2d 451, 455 (Iowa 1997) (citing Lunday v. Vogelmann, 213 N.W.2d 904, 907 (Iowa 1973), overruled on other grounds in Miller v. Boone County Hosp., 394 N.W.2d 776 (Iowa 1986)). The burden is not upon the Association and the Board of Supervisors to prove the amendment is constitutional. The property owners have the burden to demonstrate beyond a reasonable doubt the amendment violates the Privileges and Immunities Clause and to point out with particularity the details of the alleged invalidity. Every reasonable doubt is resolved in favor of constitutionality. Avery v. Peterson, 243 N.W.2d 630, 633 (Iowa 1976).

The purpose of the Privileges and Immunities Clause is to prevent the state from denying its citizens the privileges and immunities of national citizenship. Article I, section 6 of the Iowa Constitution specifically provides:

the general assembly shall not grant to any citizen, or class of citizens, privileges and immunities, which, upon the same terms shall not equally belong to all citizens.

(Emphasis added.)

The clause makes clear people are afforded protection from arbitrary governmental action. See, e.g., State v. Mann, 602 N.W.2d 785 (Iowa 1999) (treatment of older juveniles in adult court versus treatment of older juveniles in juvenile court); Sanford v. Manternach, 601 N.W.2d (Iowa 1999) (treatment of inmates); Bierkamp v. Rogers, 293 N.W.2d 577 (Iowa 1980) (treatment of paying versus non-paying guests in automobiles); City of Waterloo v. Selden, 251 N.W.2d 506 (Iowa 1977) (treatment of cities with more than 750 population); Collins v. State Bd. of Social Welfare, 248 Iowa 369, 81 N.W.2d 4 (1957) (treatment of children living in home versus children living with designated relatives other than mother and father).

We must determine whether the amendment creates a classification of people who have been singled out for different treatment. If we find the amendment creates such a class, then we must determine whether the classification is arbitrary and bears no rational relationship to a legitimate governmental interest. See John R. Grubb, 255 N.W.2d at 95; accord Utilicorp United Inc., 570 N.W.2d at 455 (citing Lunday, 213 N.W.2d at 907).

In the determination of whether the amendment classifies people, we must look to the content of the amendment itself as it is controlling. In relevant part, the amendment provides:

No regulation or ordinance adopted under the provisions of this Ordinance shall be construed to apply to that property owned by or under the control of the Madison County Livestock and Fair Association (MCLFA) designated as the “Fairgrounds”....

(Emphasis added.)

On its face, the amendment exempts the property, not the Association, from the Ordinance. However, in effect, the amendment classifies certain property owners differently than others. The amendment exempts the Association from the Ordinance during the five days of the fair. The Association is exempted from all of the requirements of the Ordinance during this time. The property owners are not similarly exempted from the Ordinance at any time. Since the amendment demonstrates the existence of a distinct class of persons singled out for different treatment, we must now determine whether the classification is arbitrary or bears no rational relationship to a legitimate governmental interest. See John R. Grubb, 255 N.W.2d at 95. The property owners have the burden to negate every reasonable basis that may support the classification. See Bruns v. State, 503 N.W.2d 607, 610 (Iowa 1993); John R. Grubb, 255 N.W.2d at 95.

We test a challenge under the Privileges and Immunities Clause by the traditional equal protection analysis. Utilicorp United Inc., 570 N.W.2d at 455 (citing In re Chicago, Milwaukee, St. Paul & Pac. R.R., 334 N.W.2d 290, 294 (Iowa 1983)). Because this case does not involve a suspect class or a fundamental right, any classification made by the amendment need only have a rational basis. State v. Cronkhite, 613 N.W.2d 664, 668 (Iowa 2000) (citing In re C.P., 569 N.W.2d 810, 812-13 (Iowa 1997)). We have found the Privileges and Immunities Clause of the state constitution will not defeat a statutory scheme simply because it benefits certain individuals or classes more than others. Train Unlimited Corp. v. Iowa Ry. Fin. Auth., 362 N.W.2d 489, 495 (Iowa 1985) (it is sufficient if the statutory scheme operates equally upon those persons or classes of persons intended to be benefited as a result of a valid legislative finding of need); see John R. Grubb, 255 N.W.2d at 96 (fact that Act primarily benefits investors, builders, and tenants does not violate Privileges and Immunities Clause because it is sufficient if an enactment applies to all members of a class, providing the classification is not purely arbitrary but rests upon a reasonable basis).

This analysis is similar to our spot zoning analysis above. In concluding the amendment is valid spot zoning, we determined there was a reasonable basis for making a distinction between the spot-zoned land and the surrounding property. Similarly, here we find the classification of property owners is not arbitrary for purposes of the challenge under the Privileges and Immunities Clause.

The surrounding residential property is not suited for the purposes of a fair or similar event. In contrast, the fairgrounds property has been the location of the Madison County fair and related events for over fifty years. Grandstands, parking, and various fairground-related buildings are located on the property. Rodeos, tractor pulls, demolition derbies, and three and four-wheeler races have taken place at the fairgrounds during the last fifty years. People continue to come to the fairgrounds all year long to take part in activities held there. The fair activities and events existed six years before the first Madison County zoning ordinance even went into effect and have continued to take place since that time. In contrast, the surrounding property is used strictly for residential purposes. The nature of the zoning in the surrounding property has not changed from residential since 1964. Consequently, it cannot be said the fairgrounds property is merely carved out of surrounding property equally suited to the purposes of the fair. Because the surrounding property is not similar in all respects of use, character, and adaptability to the fairgrounds area, we find the classification is not arbitrary.

In conclusion, the property owners have failed to show their properties are similarly situated to the fairgrounds property. Accordingly, we need not address whether the amendment bears a rational relationship to a legitimate government interest. Therefore, we conclude the classification of property owners not similarly situated does not violate the Privileges and Immunities Clause. Accordingly, we affirm the district court’s denial of the property owners’ petition for writ of certiorari.

AFFIRMED.

      . Darin Nelson & Son, Figure 8 Races in Adel, Iowa; Dallas County Fairgrounds, available at http ://www. deziningwebz.com/figureeighl/ (last visited October 23, 2001).


source: Caselaw Access Project

author: NEUMAN, Justice.

license: Public Domain

text:
    Steven John THEISEN, Appellant, v. COVENANT MEDICAL CENTER, INC., Appellee.
    No. 99-0533.
    Supreme Court of Iowa.
    Nov. 15, 2001.

      Jeffrey L. Goodman and Robert K. Du-Puy of Pingel <& Templer, P.C., West Des Moines, for appellant.
    Iris E. Muchmore and Leonard T. Strand of Simmons, Perrine, Albright & Ellwood, P.L.C., Cedar Rapids, for appel-lee.

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

   NEUMAN, Justice.

Steven Theisen was fired from his job as security manager for Covenant Medical Center because, after he was suspected of making an obscene phone call to another employee, he refused to submit to voice print analysis to confirm or refute the accusation. Theisen sued Covenant for wrongful discharge. On Theisen’s appeal from the district court’s summary judgment for Covenant, the principal question is whether requiring an employee to submit to voice print analysis violates the letter or spirit of Iowa Code section 730.4 (1995). By its terms, section 730.4 prohibits an employer from requiring an employee to submit to a polygraph examination as a condition or pre-condition of employment.

We are convinced, as was the district court, that section 730.4 has no application to voice print analysis. Because Covenant’s conduct violated neither statute nor public policy, all of Theisen’s wrongful-discharge claims premised on that theory must fail. As will be explained further, Theisen’s related employment claims are equally unavailing, as are his claims for defamation by compelled self-publication and dramatic pantomime. We therefore affirm the judgment of the district court, which preserved for trial only Theisen’s claim for direct defamation.

I. Background Facts.

On the evening of May 22, 1995, someone left an obscene message on the voice mail of Bobbie Hartwig, a nurse at Covenant Medical Center in Waterloo. Hart-wig discovered the message when she arrived at work the next morning. She contacted her supervisor, Nancy Schuler, about the call. Schuler, who is also the head of the Quality Services department, advised Hartwig that nothing further needed to be done unless Hartwig received additional calls or messages. Hartwig also called Steve Theisen, Covenant’s security manager, to report the call. Theisen never returned her call.

Although Hartwig had not immediately mentioned it to Schuler or Theisen, upon hearing the first words of the obscene message she recognized the voice as Steve Theisen’s. In her words, she “just knew the minute [she] heard his voice that it was him.” She thought the whole thing must be a joke but was troubled by the idea that it might be more than that. Hartwig replayed the message for her husband, Gary. Based on his own interaction with Theisen in the small town where they lived, he also believed the voice was Theisen’s. Several days later, Bobbie Hartwig played the message for Schuler, who was also Theisen’s supervisor. Schuler also identified the voice as Theisen’s. Both Gary Hart-wig and Schuler identified the voice as Theisen’s before Bobbie Hartwig revealed her own belief.

Schuler and Ray Fusco, Covenant’s vice president for employee resources, began a sexual harassment investigation. The investigation included making a tape of the obscene call and submitting it for voice print analysis or spectrography along with comparison voice mail messages known to have been left by Theisen. Covenant’s voice analyst, Mindy Wilson, ultimately concluded that she could not arrive at a “solid” identification because the obscene message was too brief to provide a good comparison with the known samples of Theisen’s voice. But she concluded Theisen could not be eliminated as a suspect and recommended that he furnish an exemplar of the obscene message for analysis.

Approximately one month after the initial incident, Theisen met with Schuler and Fusco. Theisen was told about the phone call and that four persons had identified the voice as his. After listening to the message, Theisen denied he was the speaker. Schuler and Fusco then asked Theisen to submit to voice print analysis. Theisen said he would have to think about it. Schuler and Fusco then suspended Theisen for two weeks to allow him to consider his decision. After the meeting, Theisen returned to his office to retrieve personal items before security officer Roger Shook escorted him out of the building.

Theisen consulted with an attorney and thereafter refused to submit an exemplar of his voice for analysis. His counsel advised Covenant by letter that Theisen’s refusal rested on their belief that Iowa Code section 730.4 “strictly prohibited” such testing. Covenant responded by firing Theisen.

Theisen then initiated a review of his termination in accordance with the “Fair Treatment” provisions of Covenant’s employee handbook. Several meetings took place between Theisen, his employee representative, Schuler and Fusco. Repeated requests that Theisen submit to voice analysis were rejected. He ultimately submitted an exemplar to his own expert, however. The expert reported “no similarities” between the voice sample submitted by Covenant and the voice sample furnished by Theisen. Thereafter, Theisen submitted his report to a nine-member employee committee who, after interviewing all the pertinent players, unanimously recommended Theisen’s reinstatement.

Covenant’s president, Raymond Burf-eind, ultimately reviewed the actions of his staff, along with all the material collected during the Fair Treatment process. Based on his review, Burfeind upheld the termination. He advised Theisen by letter that his decision was based on Theisen’s refusal to comply “with reasonable requests which could have determined with more certainty the facts that were present.”

II. Legal Proceedings.

Theisen sued Covenant for damages stemming from wrongful termination and defamation. The wrongful termination count rested on the theory that Covenant’s request for voice print analysis violated Theisen’s rights as an employee under Iowa Code section 730.4. As later amended, the petition also alleged damages arising from retaliatory discharge, negligent investigation, breach of contract and/or promissory estoppel, and intentional infliction of emotional distress.

Covenant moved for summary judgment. On Theisen’s claim of wrongful discharge, the court acknowledged that voice print analysis “may be used as evidence to help prove a person lied,” but concluded that this did not make the procedure a prohibited polygraph examination governed by section 730.4. Because Covenant’s request for voice print analysis did not violate section 730.4, the court ruled Covenant’s decision to fire Theisen breached no public policy preventing termination of his at-will employment status.

The court likewise rejected Theisen’s negligent investigation claim, noting that such a cause of action has not been recognized in this context and likely would not be inasmuch as an at-will employee could be terminated with no investigation at all. Also rejected was Theisen’s claim that he was defamed through compelled self-publication to potential employers, family, friends and other community members. The court reasoned that, while Iowa does recognize defamation by compelled self-publication, Covenant’s statements were protected by a qualified immunity which was not lost by Theisen’s later repetition. Finally, the court found no factual or legal support in the summary judgment record for recovery under theories of breach of contract, promissory estoppel, or intentional infliction of emotional distress. This appeal by Theisen followed.

III. Scope of Review.

We review a district court’s ruling on summary judgment for the correction of errors at law. Teague v. Mosley, 552 N.W.2d 646, 648 (Iowa 1996). Summary judgment is appropriate only if the entire record, viewed as a whole, reveals no genuine issues of material fact and establishes that the district court correctly applied the law. Id. In making this determination, we rely on the pleadings, depositions, answers to interrogatories, admissions and any affidavits submitted as part of the summary judgment record. Iowa R. Civ. P. 237(c). We must view the record made in the light most favorable to the nonmoving party. Schoff v. Combined Ins. Co. of Am., 604 N.W.2d 43, 45 (Iowa 1999).

IV. Issues on Appeal.

A. Voice print analysis and Iowa Code section 730.4. Theisen argued in the district court, and urges on appeal, that Iowa Code section 730.4 prohibited Covenant from requesting that he submit to voice print analysis as a condition of keeping his job. Because Covenant’s conduct violated public policy, Theisen contends, the fact that he was an employee-at-will presents no obstacle to the prosecution of his claim. Thus, before turning to the statute, we review briefly the employment-at-will doctrine.

Employment-at-will. The doctrine of employment-at-will, well-established in Iowa law, permits an employer or employee who is not under contract to terminate employment at any time for any lawful reason. Phipps v. IASD Health Servs. Corp., 558 N.W.2d 198, 202 (Iowa 1997); Fogel v. Trustees of Iowa Coll., 446 N.W.2d 451, 455 (Iowa 1989). This court has recognized only two exceptions to the doctrine. First, an employee handbook that specifically limits termination of employment except under certain conditions or for cause may create a contract of employment. Phipps, 558 N.W.2d at 202; Fogel, 446 N.W.2d at 455. Second, we have held that an employer may not terminate an employee for a reason that violates public policy. Springer v. Weeks & Leo Co., 429 N.W.2d 558, 560 (Iowa 1988); accord Phipps, 558 N.W.2d at 202; Fogel, 446 N.W.2d at 455. To defeat the presumption of at-will employment, such policy must be well-recognized and defined, generally by state constitution or statute. Phipps, 558 N.W.2d at 203; Springer, 429 N.W.2d at 560.

Theisen contends, and for purposes of summary judgment we find, that Covenant fired him because he refused to submit to voice print analysis. Covenant’s request, Theisen argues, violated the public policy expressed in Iowa Code section 730.4. Thus, his argument continues, Covenant could not lawfully discharge him for failure to comply. To determine whether the district court correctly rejected these contentions, we turn to the statute at issue.

Iowa Code section 730.4. The statute upon which Theisen relies provides, in pertinent part, as follows:

An employer shall not as a condition of employment, promotion, or change in status of employment, or as an express or implied condition of a benefit or privilege of employment, knowingly do any of the following:
a. Request or require that an employee or applicant for employment take or submit to a polygraph examination.
b. Administer, cause to be administered, threaten to administer, or attempt to administer a polygraph examination to an employee or applicant for employment.

Iowa Code § 730.4(2). Of particular significance to this case, a polygraph examination is defined by statute as

any procedure which involves the use of instrumentation or a mechanical or electrical device to enable or assist the detection of deception, the verification of truthfulness, or the rendering of a diagnostic opinion regarding either of these, and includes a lie detector or similar test.

Iowa Code § 730.4(1).

The district court, focusing on the common meaning of polygraph as an instrument used to determine truthfulness by measuring physiological reactions to responses to questions, determined that voice print analysis does not “assist in the detection of deception” in the way a lie detector does. Theisen contends the court erred because it disregarded the definition of “polygraph examination” supplied by section 730.4(1). He argues that when the statute was amended in 1988 to define a polygraph examination as a procedure, rather than a specific device or machine, the legislature significantly broadened the types of activities prohibited. Compare Iowa Code § 730.4(1) (1985) (defining “polygraph” as “any mechanical or electrical instrument or device” used to determine truthfulness), with Iowa Code § 730.4(1) (1989) (defining “polygraph examination” to include “any procedure ” involving the use of instrumentation or mechanical device to “assist the detection of deception”, or verification of truthfulness, including “a lie detector or similar test” (emphasis added)). In other words, instead of merely prohibiting the use of a specific machine to detect truthfulness, Theisen claims the legislature intended by its 1988 amendment to outlaw all procedures used by employers to measure veracity. This would include, he argues, the voice print analysis requested by Covenant.

Even if Theisen is correct about the legislature’s intent to broaden the reach of section 730.4, we are not convinced that the statute prohibits what Covenant sought from Theisen here. Covenant asked Theisen to submit to voice print analysis, a procedure which compares a known voice sample with an unknown sample as a way of identifying the unknown voice. The procedure is a method of identification. It is perhaps not as exact as fingerprinting or DNA analysis, but it is a method of identification nonetheless. And while the procedure may remotely aid the detection of deception or verification of truthfulness, as Covenant concedes, that is not its function or purpose. Truthfulness comes into the picture only when the subject denies making the unknown statement. The truth or veracity of the denial cannot be measured by voice print analysis. It remains an identification tool, no matter what the subject’s response.

Contrary to Theisen’s assertions, the language of section 730.4 gives no indication that the legislature intended to prohibit the use of methods or devices designed to counter an employee’s denial of wrongdoing. The statute clearly places limits on the testing or analysis to which an employer can be subjected, but it does not prohibit an employer from using identification techniques such as comparison of photographs, fingerprints or voice prints. Legislative intent is revealed by what a statute says, not what it could or should have said. Berger v. Iowa Fin. Auth., 593 N.W.2d 136, 138 (Iowa 1999). An identification technique does not become a polygraph examination, prohibited by statute, simply because an employee adamantly denies certain behavior and the truthfulness of the denial becomes an issue.

To summarize, we think the plain language of section 730.4 pertains to devices, such as polygraphs, that purport to measure the truth or veracity of an employee’s statement. The statute does not, by its terms, prohibit lawful tests or procedures used by an employer in the identification of employees suspected of workplace crime. Nor has Theisen advanced a cogent argument explaining how an employer’s use of voice print analysis violates any other well-defined public policy.

Application of law to undisputed facts. Because the voice identification procedure requested by Covenant violated neither law nor public policy, Covenant’s decision to terminate Theisen for failing to cooperate in the investigation was not wrongful. Theisen was an at-will employee. The district court correctly ruled that his claims for wrongful and retaliatory discharge fail as a matter of law.

B. Negligent investigation. Theisen next claims that Covenant owed him a duty of care to conduct a reasonable, non-negligent investigation prior to firing him. Although it is not entirely clear on what grounds his claim rests, Theisen appears to first analogize his claim to a cause of action for negligent hiring, retention and supervision. In the alternative he claims that when Covenant undertook its sexual harassment investigation, it assumed a duty to Theisen to conduct that investigation in a reasonable manner. •

Covenant counters that Theisen’s claim of negligent investigation poses “a full, frontal attack” on the Iowa law of employment at-will. It analogizes Theisen’s claim to the claim of negligent discharge rejected by this court in Huegerich v. IBP, Inc., 547 N.W.2d 216 (Iowa 1996). If an employer cannot be found liable to an at-will employee for negligent discharge, Covenant argues, that same employer should not be liable for any steps taken prior to the discharge. Covenant also argues that if the court recognizes a cause of action for negligent investigation in favor of at-will employees, it will turn every employer’s termination decision into a jury question of reasonableness, thus completely swallowing the employment-at-will doctrine.

As with Theisen’s first claim, our analysis is grounded in the basic nature of at-will employment: an employer can terminate an employee for any reason or no reason at all, so long as the reason does not violate public policy. Schoff, 604 N.W.2d at 47; Fogel, 446 N.W.2d at 455. We have already discussed the public-policy exception first recognized in Springer, 429 N.W.2d at 560. The other exception arises when an employee handbook or policy manual creates a unilateral employment contract. Huegerich, 547 N.W.2d at 220. In Huegerich, an at-will employee fired for violating IBP’s look-alike drug policy asked this court to create a new exception to at-will employment — negligent discharge.

The plaintiff in Huegerich alleged, and the district court found, that IBP negligently administered its drug policy by failing to provide an orientation program or advising that an employee could be terminated if caught in possession of look-alike drugs. Id. at 219. This court, noting the myriad of other states that had rejected such a negligent discharge claim, likewise rejected Huegerich’s argument. Id. at 220. Our decision rested on the belief that imposing “a duty of care upon an employer when discharging an employee ... would radically alter” the doctrine of employment-at-will. Id.

Theisen resists Covenant’s analogy to Huegerich, insisting that a claim of negligent investigation is more akin to the claims of negligent hiring and supervision recognized by this court in Godar v. Edwards, 588 N.W.2d 701 (Iowa 1999). The plaintiff in Godar, who had been abused throughout his youth by a school district employee, sued the school district, alleging negligence in hiring, supervision, and retention. Although we concluded that Go-dar raised insufficient facts to generate a jury question of negligence, we recognized the viability of such a cause of action based on the “principle that a person conducting an activity through employees is subject to liability for harm resulting from conduct in the employment of improper persons involving risk of harm to others.” Godar, 588 N.W.2d at 708 (quoting 27 Am.Jur.2d Employment Relationship § 473, at 913 (1996)).

Theisen theorizes that claims of negligent hiring, supervision and retention provide the basis for a negligent investigation claim because hiring, supervision and retention are all based on an employer’s investigation of an employee and his or her conduct or the lack of any such investigation. He specifically challenges the actions leading up to his own termination, including the fact that the investigation was initiated by Nancy Schuler, a supervisor with whom Theisen had a contentious relationship.

The weakness in Theisen’s theory is that it still rests on a decision to terminate him, which Covenant could do for any lawful reason, or for no reason at all. Employment at-will, by definition, does not require an employer’s decision to be logical or rational. Theisen’s claim of negligent investigation goes to the heart of the employer’s decision-making process. To allow such a claim would not only contravene this court’s denial of a negligent discharge claim in Huegerich, but it would also create an exception swallowing the rule of at-will employment. See Johnson v. Delchamps, Inc., 897 F.2d 808, 811 (5th Cir. 1990) (holding that because an employer could fire an employee for any reason or no reason “it was equally at liberty to discharge [the employee] for a reason based on incorrect information, even if that information was carelessly gathered” (footnote omitted)); see also Moms v. Hartford Courant Co., 200 Conn. 676, 513 A.2d 66, 68 (1986) (rejecting wrongful discharge claim based on negligent investigation of criminal matter as public policy exception to doctrine of at-will employment).

In the alternative, Theisen asserts that even if Covenant was not compelled to undertake an investigation prior to firing him, once it did so it had a duty to conduct the investigation with reasonable care. Covenant counters that its duty to investigate the obscene voice mail message was a duty running in Hartwig’s favor as the victim of possible sexual harassment. Following through on that obligation, Covenant urges, does not mean it assumed a duty to Theisen, an at-will employee who was the suspected perpetrator.

Theisen rests his claim of duty on the Restatement (Second) of Torts section 323. Under that restatement section,

[o]ne who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise .reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.

Restatement (Second) of Torts § 323 (1965).

Theisen’s reliance on section 323 is misplaced. Covenant undertook its investigation to pursue allegations of sexual harassment, a duty which it owed to Bobbie Hartwig, not Theisen. See Lynch v. City of Des Moines, 454 N.W.2d 827, 833-34 (Iowa 1990). And although an assumed duty recognized by section 323 may also run in favor of a third person, see Restatement (Second) of Torts § 324A, under that section a party who undertakes to perform a service to another which is essential for the protection of a third person is only liable to the third person for physical harm. Restatement (Second) of Torts § 324A. Even if Covenant should have recognized the need to protect Theisen, Theisen did not suffer any physical harm. Thus none of the Restatement sections on which Theisen relies establish a duty on Covenant’s part to conduct a reasonable investigation in Ms favor.

Finally, we reject Theisen’s contention, raised in his reply brief, that our decision in Schoff v. Combined Insurance Co. recognized an employee’s cause of action against an employer for negligent supervision and retention of another employee. He asserts that, by analogy, an employee should be permitted to maintain an action against an employer for negligent investigation. But, as already discussed, an employer has no duty to conduct a reasonable investigation in favor of an at-will employee. In the absence of a duty of care, Schoff does not support Theisen.

In summary, the district court correctly dismissed Theisen’s negligent investigation claim.

C. Defamation. Theisen claims that Covenant defamed him, both through Theisen’s compelled self-publication of Covenant’s accusation of sexual harassment and through security officer Roger Shook’s action in escorting Theisen out of the building following his suspension. The district court rejected these claims, ruling that an employer is entitled to qualified immunity for statements made to an employee to protect the employer’s interest, and that the privilege extends to situations in which the employee feels compelled to repeat such statements. For the reasons that follow, we are convinced that the district court correctly applied the law to the undisputed record before us.

Compelled self-publication. The law of defamation embraces the “twin torts” of libel and slander, that is, the publication of statements that “tend to injure a person’s reputation and good name.” Lara v. Thomas, 512 N.W.2d 777, 785 (Iowa 1994) (citing W. Page Keeton, Prosser and Keeton on the Law of Torts § 111, at 771 (5th ed.1984)); accord Thompto v. Cobom’s, Inc., 871 F.Supp. 1097, 1124 (N.D.Iowa 1994). Here, Theisen alleges oral publication of Covenant’s defamatory statement accusing him of making an obscene phone call to another employee, making the applicable tort slander. Lara, 512 N.W.2d at 785.

A key element of any defamation claim is proof of publication by the defendant to someone other than the subject of the allegedly defamatory statement. Belcher v. Little, 315 N.W.2d 734, 737 (Iowa 1982). Put another way, “the defamed party has not suffered injury until someone other than himself learns of the defamation.” Id. at 738. And although it is the general rule that an injured party cannot create a defamation action by repeating the statement originally made only to him or her, this court recognized in Belcher an exception to the rule where the subject is under “strong compulsion” to repeat the allegedly defamatory statement. Id. The exception rests on the concept of foreseeability — if the person making the statement can reasonably foresee that the person defamed will be compelled to repeat the defamatory statement to a third party, “there is a strong causal link between the originator’s actions and the harm caused to the defamed person, and ... this causal connection makes the imposition of liability reasonable.” 50 Am. Jur.2d Libel and Slander § 242, at 501 (1995). Such forseeability is especially apparent in employment situations because an employee will ordinarily seek new employment after being terminated for alleged wrongdoing. Id.

An employer is not without protection, however. A limited privilege applies to

communications made in good faith on any subject matter in which the [person communicating] has an interest, or with reference to which he has a duty ... if made to another person having a corresponding interest or duty, on a privileged occasion and in a manner and under circumstances fairly warranted by the occasion and duty, right or interest.

50 Am.Jur.2d Libel and Slander § 276, at 547. In order for the privilege to apply, a defendant must prove four things: (1) the statement was made in good faith, (2) the defendant had an interest to uphold, (3) the scope of the statement was limited to the identified interest, and (4) the statement was published on a proper occasion, in a proper manner, and to proper parties only. Thompto, 871 F.Supp. at 1126. Applying these factors, it has been held that a qualified privilege attaches to an employer’s statements made to an employee concerning reasons for the employee’s discharge. Id.; Lewis v. Equitable Life Assurance Soc’y of the United States, 389 N.W.2d 876, 889-90 (Minn.1986). The privilege may be lost, however, if the speaker acts with actual malice, or exceeds or abuses the privilege through, for example, excessive publication or through publication to persons other than those who have a legitimate interest in the subject of the statements. 50 Am.Jur.2d Libel and Slander §§ 279, 280, 284, at 554-55, 559-60, 565-66.

Here, the theories of compelled self-publication and qualified immunity intersect so that the question becomes whether the privilege that attaches to an employer’s statements concerning the reasons for termination applies when the terminated employee repeats those statements to others. Theisen contends he was compelled to publish Covenant’s accusations to family, friends, and future employers in order to secure their support for his “Fair Treatment” hearing and seek other employment. He also argues that even if Covenant can claim qualified privilege, he generated a jury question as to whether Covenant waived its privilege by acting with malice. Taking a different tack, Covenant urges this court to overrule Belcher and hold that the subject of defamatory statements cannot create his own defamation action under the doctrine of self-publication.

As we analyze these competing arguments, we note that Theisen’s defamation claim (unlike his wrongful discharge claim) rests on the alleged falsity of Covenant’s accusation that he sent an obscene voice mail message to another employee. Regardless of the truth or falsity of Covenant’s statement, it was plainly offered as an explanation for Theisen’s termination, a matter clearly encompassed within their employer-employee relationship. The statement was made in good faith, based on the identification of Theisen’s voice by four persons. Covenant had an undisputed interest in the subject of the statement, which was made as part of a sexual harassment investigation. And the statement was made during a closed-door meeting with Theisen’s supervisor and the director of employee services, a proper time and place to discuss such an accusation with limited parties. Thus Covenant’s statement easily falls within the criteria necessary to establish a qualified privilege as a matter of law. See, e.g., Thompto, 871 F.Supp. at 1126; Higgins v. Gordon Jewelry Corp., 433 N.W.2d 306, 308, 309 (Iowa Ct.App.1988); Lewis, 389 N.W.2d at 889.

As already noted, Theisen has dismissed his claim for direct defamation. So the only question remaining is whether qualified immunity applies when the person publishing the statement is the party injured by the statement rather than the party who originally made the statement. We are convinced that it must. As wisely noted by the Minnesota Supreme Court, it makes little sense to deny the privilege when the same communication is being conveyed by a different mode of publication. Lewis, 389 N.W.2d at 890. Moreover, in the employment context, the qualified privilege is the only effective means of preventing every termination decision from automatically becoming a case of defamation. Id. As the Minnesota court observed,

[i]t is in the public interest that information regarding an employee’s discharge be readily available to the discharged employee and to prospective employers, and we are concerned that, unless a significant privilege is recognized by the courts, employers will decline to inform employees of reasons for discharges.

Id; accord Thompto, 871 F.Supp. at 1128 (holding that limiting the privilege to statements made only by employers and not by employees would “create an insupportable conundrum of holding defendants liable for statements qualified in one context but not in a context that has nothing to do with the defendants’ conduct”). We think this reasoning is sound and, therefore, recognize and adopt a qualified privilege for statements made by employers to employees concerning the reasons for an employee’s discharge regardless of whether the employer or employee publishes the statement. Without such a privilege, employers would be stymied in their ability to effectively deal with personnel matters and left with the choice of giving no reason for terminating employment or hoping an employee will not reveal the reason for discharge to a prospective employer. The district court was correct in so ruling.

As for the question of whether Covenant exceeded its privilege and thereby waived its immunity, the record is devoid of any proof of actual malice on Covenant’s part. Theisen’s assertion that Covenant demanded submission to an “unlawful” examination to disprove the allegation is unfounded as a matter' of law. Accordingly, the district court correctly granted judgment for Covenant on Theisen’s compelled self-publication claim.

Dramatic pantomime. Theisen’s petition also urged recovery based on actions taken by a Covenant security officer, Roger Shook, which Theisen refers to as dramatic pantomime. Specifically, Theisen claims he was defamed when Shook, dressed in plain clothes, accompanied Thiesen to his office to retrieve personal belongings and then escorted Theisen out of the building.

At the outset we question whether Theisen has properly preserved the issue for our review, because the district court did not specifically address the claim in its summary judgment ruling and Theisen sought no expansion of the court’s ruling to address it. We are convinced, however, that the court impliedly rejected the claim on its merits, and rightly so. Assuming such conduct by a security officer might rise to the level of defamation under some circumstances, see, e.g., Bonkowski v. Arlan’s Dep’t Store, 12 Mich.App. 88, 162 N.W.2d 347, 349, 362 (1968) rev’d on other grounds, 383 Mich. 90, 174 N.W.2d 765 (1970) (uniformed security guard stopped woman and asked her to empty her purse after another patron accused her of shoplifting), the record here does not support such a claim, legally or factually.

Proof that a terminated employee was simply escorted from the place of employment, without words or other conduct, has been held insufficient as a matter of law to. establish a claim of defamation by dramatic pantomime. Bolton v. Dep’t of Human Servs., 540 N.W.2d 523, 525 (Minn.1995). The reason is that, in an employment context, such incidents are part of the everyday work environment. Id. at 526. More importantly, the record before us contains no evidence that anyone actually saw Theisen being escorted out of Covenant’s building. Because there was no “publication” of the challenged conduct, there can be no defamation. The assignment of error is without merit.

D. Remaining issues. Theisen also advanced, and the district court summarily but thoughtfully rejected, theories of recovery based on promissory estoppel, breach of contract, and intentional infliction of emotional distress. We have carefully reviewed these claims and, like the district court, find them to be entirely unsupported under the law or the record made on summary judgment. It would unduly lengthen this opinion, while adding nothing to our jurisprudence, to address those issues here. We therefore affirm the court’s summary judgment for Covenant in its entirety.

AFFIRMED.

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

      . Theisen subsequently dismissed without prejudice his direct defamation claim, thereby establishing that this is not an interlocutory appeal but an appeal from a final order adjudicating all the rights of the parties.

      . In addition to Bobbie and Gary Hartwig and Schuler, Roger Shook — a member of Covenant's security force — also identified the voice as Theisen's. However, Shook’s identification came after Bobbie Hartwig and Schu-ler told him they thought the voice was Theisen’s.


author: CADY, Justice. NEUMAN, Justice

text:
    Iowa SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Stephen William RUTH, Respondent.
    No. 01-0928.
    Supreme Court of Iowa.
    Nov. 15, 2001.

      Norman G. Bastemeyer and Charles L. Harrington, Des Moines, for complainant.
    Gary M. Lane, Davenport, for respondent.
   CADY, Justice.

This disciplinary action is before us on a report by a division of the Iowa Supreme Court Grievance Commission. The Commission found Stephen Ruth violated the Iowa Code of Professional Responsibility based on his criminal convictions for operating while intoxicated, third offense, and domestic abuse assault causing injury. The Commission recommended a six-month suspension. On our review, we find Ruth violated the Code of Professional Responsibility and suspend his license to practice law indefinitely with no possibility of reinstatement for six months.

I. Background Facts and Proceedings.

Stephen Ruth was admitted to practice law in Iowa in 1976. He has practiced in Davenport and currently offices out of his home in Bettendorf, Iowa. In recent years, he has primarily worked in the areas of real estate, probate, and tax. He has been a sole practitioner since 1987. He is married and has a child in elementary school.

Ruth is an alcoholic. He has a long history of alcohol abuse. He was convicted of operating while intoxicated (OWI) in 1996 and 1997. By 1998, he was excessively consuming alcoholic beverages on a daily basis. He had become noticeably unhealthy in his appearance and was incoherent on occasions. In 1999, he was convicted of domestic abuse assault causing injury after he struck his wife in the eye with his fist. The incident occurred in their home and Ruth was intoxicated at the time. In April 2000, he was again arrested for OWI. This arrest resulted in a felony conviction in July 2000 for third-offense OWI.

Although Ruth had unsuccessfully sought treatment for his alcohol abuse on numerous occasions in the past, he stopped drinking alcohol following his last OWI arrest. He successfully completed inpatient treatment, attends Alcoholics Anonymous meetings several times each week, and has been involved in a group aftercare program. He has regained a normal physical appearance and appears committed to maintaining his sobriety. He continues to reside with his wife and child.

Ruth began to limit his legal practice a couple years ago, and is currently representing only a few clients. He also maintains full-time employment at a grocery store in Bettendorf.

Despite the seriousness and longevity of Ruth’s problems, there was no evidence produced at the hearing that his criminal convictions visited any adverse consequences on his clients. Ruth generally has maintained a good reputation as a lawyer, and is known to be knowledgeable in the law and ethical in his practice.

Following a hearing on April 7, 2001, the Commission found the conviction for domestic abuse assault causing injury in violation of Iowa Code section 708.2A(2)(b) (1999) violated DR 1-102(A)(3) (“illegal conduct involving moral turpitude”) and DR 1-102(A)(6) (conduct which reflects adversely on fitness to practice law). It further found the conviction for OWI third offense in violation of Iowa Code section 321J.2(2)(c) also violated DR 1-102(A)(6). It recommended Ruth be suspended from the practice of law for six months. In mitigation, the Commission found Ruth acknowledged his problems, voluntarily reduced his law practice, has been committed to maintaining his sobriety, and is continuing to rebuild his marriage and professional life. Ruth has also been cooperative with the Commission throughout these proceedings. He has not been previously disciplined.

II. Scope of Review.

Our review is de novo. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Mulford, 625 N.W.2d 672, 679 (Iowa 2001). While “we are not bound by the Commission’s findings, we give them weight, particularly when considering the credibility of witnesses.” Id. We also consider the discipline recommended by the Commission, but are not bound by the recommendation. Id. The burden is on the Board of Professional Ethics and Conduct to prove the violations by a “convincing preponderance of the evidence.” Id. (citation omitted).

III. Ethical Violations.

Domestic abuse assault is a “morally reprehensible crime” which violates DR 1-102(A)(3). Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Poison, 569 N.W.2d 612, 613 (Iowa 1997). A criminal conviction for assault also adversely reflects on the fitness of a lawyer to practice law in violation of DR 1-102(A)(6). Iowa Supreme Ct. Bd. of Profl Ethics & Conduct v. Thompson, 595 N.W.2d 132, 133-34 (Iowa 1999). Similarly, a felony OWI conviction also reflects adversely on a lawyer’s fitness to practice law. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Marcucci, 543 N.W.2d 879, 882 (Iowa 1996). We agree with the Commission that Ruth violated ethical provisions DR 1-102(A)(3) and DR 1-102(A)(6).

IV. Discipline.

In determining the appropriate discipline, we consider “the nature of the alleged violations, the need for deterrence, protection of the public, maintenance of the reputation of the [bar] as a whole, and the respondent’s fitness to continue in the practice of law.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Freeman, 603 N.W.2d 600, 603 (Iowa 1999) (quoting Comm, on Profl Ethics & Conduct v. Havercamp, 442 N.W.2d 67, 69 (Iowa 1989)). We also consider any aggravating or mitigating circumstances. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Mears, 569 N.W.2d 132, 134 (Iowa 1997).

We are presented in this case with two separate ethical violations. Both warrant suspension. In Marcucci, we emphasized that a felony conviction for OWI provided grounds for either revocation or suspension. Marcucci, 543 N.W.2d at 882 (imposing a six-month suspension). Similarly, we have imposed a suspension as a sanction for domestic abuse. See Polson, 569 N.W.2d at 613-14 (domestic abuse assault causing injury and contempt convictions warranted two-year suspension); Comm. on Prof'l Ethics & Conduct v. Nadler, 445 N.W.2d 358, 359-62 (Iowa 1989) (imposed one-year suspension for conviction for assault causing injury to mother-in-law’s housekeeper, delinquent probate matters, lack of cooperation with Commission, and breach of client’s trust); Comm. on Profl Ethics & Conduct v. Patterson, 369 N.W.2d 798, 801 (Iowa 1985) (three-month suspension imposed for two-hour assault on dissolution client with whom romantically involved); see also ABA/BNA Lawyers’ Manual on Professional Conduct 01:827-828 (1992) (Standard 5.12 of the Standards for Imposing Lawyer Sanctions provides suspension appropriate when lawyer engages in criminal conduct less serious than that warranting disbarment under Standard 5.11); Attorney Grievance Comm’n v. Painter, 356 Md. 293, 304-05, 739 A.2d 24, 30-31 (1999) (suspension is the typical sanction imposed by courts in most disciplinary actions involving domestic violence).

In mitigation of sanctions in this ease, we consider that Ruth has made great strides in his battle with alcoholism. He has also completed a batterer’s program and his wife is supportive of him in his recovery. Ruth has further voluntarily reduced the number of clients he represents and is primarily working outside the legal profession. However, this voluntary reduction in his legal practice to a handful of clients has little impact on the imposition of the discipline or the length of any suspension. The voluntary cessation of the practice of law is not considered a credit against any suspension subsequently imposed. See Comm. on Prof'l Ethics & Conduct v. McDermott, 405 N.W.2d 824, 825 (Iowa 1987).

Considering all of the circumstances in this case, we suspend Ruth’s license to practice law indefinitely with no possibility of reinstatement for six months. This suspension applies to all facets of the practice of law. Ct. R. 118.12. Upon any application for reinstatement, Ruth shall be required to establish that he has not practiced law during the period of suspension and that he has in all other ways complied with the requirements of Court Rule 118.18. The costs of this action shall be taxed to Ruth pursuant to Court Rule 118.22.

LICENSE SUSPENDED.

All justices concur except NEUMAN, J., who dissents.

NEUMAN, Justice

(dissenting).

For the reasons stated in my dissent in Marcucci, 543 N.W.2d at 884,1 cannot join the court’s decision. Although I applaud Mr. Ruth’s return to sobriety, I remain convinced that a lawyer who commits a felony has forfeited the right to practice law.


author: TERNUS, Justice.

text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Timothy J. RYLAARSDAM, Respondent.
    No. 01-0914.
    Supreme Court of Iowa.
    Nov. 15, 2001.
    Norman Bastemeyer and Charles Harrington, Des Moines, for complainant.
    Timothy Rylaarsdam, Sioux Center, pro se.
   TERNUS, Justice.

The Iowa Supreme Court Grievance Commission has filed a report with this court, finding that the respondent, Timothy J. Rylaarsdam, has violated the Iowa Code of Professional Responsibility for Lawyers. The Commission recommends that Rylaarsdam’s license to practice law be suspended for six months. Upon our de novo review, we agree that Rylaarsdam has committed ethical violations. We therefore suspend his license to practice law indefinitely with no possibility of reinstatement for six months.

I. Background Facts and Proceedings.

Rylaarsdam practiced law in Sioux Center, Iowa from June 1991 until August 1999. Initially, he practiced part-time with a Sioux Center law firm and also acted as a part-time assistant county attorney for Sioux County. In January 1999, his position in the county attorney’s office became full-time and he remained in that position until August of that year. Since that time he has worked as a computer technician for a computer company.

In 1992 Rylaarsdam undertook the representation of Madonna and Richard Harrington. Mrs. Harrington’s brother, Donald Lehrman, had died and Rylaarsdam opened an estate for him, having Mr. and Mrs. Harrington appointed as administrators. The only assets in the estate were a shed owned by Donald and a house he had owned jointly with his brother, Robert.

On or about July 5, 1993, Rylaarsdam prepared a petition to sell the shed and he forged the administrators’ signatures to this document. At about the same time, he forged Mrs. Harrington’s signature to two forms admitting claims filed in the Donald Lehrman estate. Other than the forged nature of the signatures on these documents, the contents and propriety of the petition and the admissions of claims were not in dispute. Rylaarsdam failed to close the Donald Lehrman estate, although he represented to the Harringtons that he had done so.

In 1996, Madonna Harrington again requested Rylaarsdam’s assistance. Her brother, Robert, had died and she wanted help in opening an estate to probate his assets. This time Rylaarsdam did not even open the estate. Instead, he took a blank letter-of-appointment form from the clerk of court’s office. Then, without the knowledge or consent of the clerk, he completed the form and embossed the clerk’s seal on it. Presenting this document to Mrs. Harrington, Rylaarsdam represented to her that the estate had been opened.

The primary asset owned by Robert was the house he had originally held jointly with his brother, Donald. Although Ryla-arsdam prepared some preliminary paperwork to effect a sale of this property, he did not complete the transaction. Rather, the respondent misrepresented the status of the sale to Mrs. Harrington and then, in August 1998, used his personal funds to make payments to Robert’s heirs, representing that these funds were proceeds of the sale.

Rylaarsdam did not benefit financially from his wrongdoing. Nor did he receive any fees for his work on the Donald Lehr-man estate.

After Rylaarsdam became a full-time assistant county attorney in 1999, one of the attorneys in his former firm reviewed the Harrington files. This review eventually led to discovery of the delinquent nature of the Donald Lehrman estate and the forged letters of appointment in the Robert Lehr-man estate.

Rylaarsdam’s conduct was reported to the Ethics Board. Initially, he failed to respond to the Board’s inquiries. He did, however, cooperate after formal charges were filed.

Rylaarsdam did not contest the charges brought by the Board. He admitted his ethical misconduct and acknowledged the necessity of a sanction. He was also sincerely remorseful for what he had done. At the hearing he offered no excuses, but he did try to explain what had led to his unprofessional conduct with a tale that is all too familiar.

Rylaarsdam’s problems began when he agreed to handle the Harringtons’ estate matters, an area he knew little about and in which he had no experience. Compounding the difficulties inherent in such a situation was Rylaarsdam’s reluctance to ask for help from the other attorneys in his firm. Although he initially tried to compensate by reading the applicable statutes and treatises in the area, he found it harder and harder to motivate himself to work on the file. Complicating the matter even further were difficulties Rylaarsdam had in meeting with his clients. Mrs. Harrington was having medical problems during this time and, when she was available, Rylaarsdam would usually have to travel to Sioux City, where the Harringtons were employed, in order to meet with them.

In 1994 Rylaarsdam and his wife began to experience marital problems. One of the problems in their relationship from his wife’s point of view was the amount of time Rylaarsdam spent at the office. Consequently, Rylaarsdam, now suffering from mild depression, attempted to spend more time with his family. Although he would take files home to work on after the children went to bed, he found he did not have the energy to tackle these matters and the files would just sit there, untouched.

Rylaarsdam’s marital situation deteriorated in 1997 and he and his wife eventually divorced in October 2000. Rylaarsdam’s mental state followed suit. By April 1999, he was diagnosed with severe depression. He began seeing a psychiatrist and a counselor and was put on medication for his condition. To his credit he recognized that he could not function as a lawyer, and he quit his position with the county attorney and has not practiced since August 1999. Shortly after his resignation, he was hospitalized for a week for treatment of his depression. Since that time he has continued counseling and a medication regimen prescribed by his psychiatrist.

The Commission decided that Rylaars-dam had violated DR 6-101(A)(3), which states that “[a] lawyer shall not ... [n]e-glect a client’s legal matter.” It also concluded that Rylaarsdam’s deceit and misrepresentations constituted a violation of DR 1-102(A)(4), (5), and (6). See Iowa Code of Profl Responsibility for Lawyers DR 1-102(A)(4) (prohibiting “conduct involving dishonesty, fraud, deceit, or misrepresentation”), (5) (prohibiting “conduct that is prejudicial to the administration of justice”), (6) (prohibiting “any other conduct that adversely reflects on the fitness to practice law”). Finally, the Commission stated that the respondent’s failure to respond to the Board’s inquiries was a violation of DR 1-102(A)(5) and (6).

In recommending a six-month suspension, the Commission offered the following evaluation of Rylaarsdam’s conduct:

The Grievance Commission is seriously concerned about the Respondent’s acts of deceit, particularly those involving falsification of court documents and forgery of an official’s signature. The Commission is likewise concerned about the Respondent’s failure to seek help in an area of the law in which he had no expertise. However, the Commission understands the pressures the Respondent was under and recognizes the role which Respondent’s marital problems and, more importantly, his mental health condition played with respect to his behavior.

The Commission also stated that it “was impressed with Respondent’s sincerity, his remorse, [and] his acceptance of responsibility for all his actions with no attempt to blame others.”

The Commission’s report is now before this court for review pursuant to Court Rule 118.10. Our review is de novo. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Mulford, 625 N.W.2d 672, 679 (Iowa 2001). “Although we are not bound by the Commission’s, findings, we give them weight, particularly when consider-mg the credibility of witnesses.” Id. Similarly, although we are not bound by the Commission’s recommended discipline, we give its recommendation our respectful consideration. Id.

II. Ethical Violations.

As we have already noted, Rylaars-dam did not contest the nature of his conduct nor the fact that it violated our code of professional responsibility. We agree with the conclusions of the Commission that the respondent’s neglect of his clients’ legal matters, his deceit, his misrepresentations, and his failure to respond to the Board constituted violations of the Code provisions listed above. We turn now to consideration of the appropriate discipline.

III. Discipline.

In determining suitable discipline, we consider “‘the nature of the alleged violations, the need for deterrence, protection of the public, maintenance of the reputation of the [bar] as a whole, and the respondent’s fitness to continue in the practice of law.’ ” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Freeman, 603 N.W.2d 600, 603 (Iowa 1999) (quoting Comm. on Prof'l Ethics & Conduct v. Havercamp, 442 N.W.2d 67, 69 (Iowa 1989)). We also take into account “both aggravating and mitigating circumstances.” Iowa Supreme Ct. Bd. of Profl Ethics & Conduct v. Mears, 569 N.W.2d 132, 134 (Iowa 1997).

We have recently considered a disciplinary case that bears some resemblance to the case before us. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Hohenadel, 634 N.W.2d 652 (Iowa 2001). In the Hohenadel case, we reviewed a matter involving an attorney, Randy Hohenadel, who had neglected his clients’ legal matters and then lied to his clients and the court to cover up his misconduct. 634 N.W.2d at 653-54. This conduct was aggravated by the fact that Hohenadel had been previously reprimanded for a similar ethical violation and by the fact that his current misconduct resulted in harm to his clients. Id. at 656. On the other hand, Hohenadel’s wrongdoing appeared to be a consequence of his alcoholism, a condition that he ultimately acknowledged and for which he sought treatment. Id. at 656-57. We suspended Hohenadel’s license indefinitely with no possibility of reinstatement for three months. Id. at 657.

Although the present case bears striking similarities to the Hohenadel matter, the ethical violations committed by Rylaarsdam are even more serious. Ryla-arsdam’s misconduct went beyond lying to his clients; he actually forged his clients’ signatures and, in an even more calculated and unscrupulous attempt to hide his neglect, falsified a court document. See generally Comm. on Prof'l Ethics & Conduct v. Bauerle, 460 N.W.2d 452, 453 (Iowa 1990) (“Fundamental honesty is the base line and mandatory requirement to serve in the legal profession.”). We think this conduct warrants a more severe sanction than that imposed in the Hohenadel case, despite the fact Rylaarsdam has no prior disciplinary record.

In view of the pertinent factors and the aggravating and mitigating circumstances, we concur in the recommendation of the Commission that a six-month suspension is appropriate. Therefore, we suspend Ryla-arsdam’s license to practice law indefinitely with no possibility of reinstatement for six months. This suspension applies to all facets of the practice of law. Ct. R. 118.12.

Upon any application for reinstatement, Rylaarsdam must establish that he has not practiced law during the suspension period and that he has in all other ways complied with the requirements of Court Rule 118.18. In addition, Rylaarsdam’s application for reinstatement must be accompanied by an affidavit from a licensed mental health professional stating that Rylaars-dam is mentally and emotionally competent to practice law. Costs of this action shall be taxed to the respondent pursuant to Court Rule 118.22.

LICENSE SUSPENDED.