author: CADY, Justice.

text:
    Robert James GRANT, Appellant, v. IOWA DEPARTMENT OF HUMAN SERVICES, Appellee.
    No. 04-1114.
    Supreme Court of Iowa.
    July 14, 2006.
    Rehearing Denied Oct. 12, 2006.

      Natalie Hope Cronk of Johnston & Na-thanson, P.L.C., Cedar Rapids, for appellant.
    Thomas J. Miller, Attorney General, and Tabitha Gardner, Assistant Attorney General, for appellee.
   CADY, Justice.

This appeal is from a district court’s ruling on a petition for judicial review of an administrative agency decision. The Iowa Department of Human Services dismissed an application to correct a child abuse report on grounds of issue preclusion. The district court affirmed. Upon our review, we reverse the district court judgment and remand for further proceedings.

I. Background Facts and Proceedings

Robert Grant and Linda Jensen had a tumultuous, rollercoaster relationship. They were married in 1991, followed by periodic episodes of discontent and reconciliation. In November 2000, Robert filed for divorce for the second time, and a custody battle ensued over their two sons, Robert Jr. and Samuel. Robert Jr., known as Bo, was born in 1995. Samuel, known as Sam, was born in 1997. He has Down syndrome. The dissolution trial was eventually scheduled for July 2002.

In August 2001, during the pendency of the dissolution, Linda filed a petition for relief from domestic abuse in district court. Linda and Robert entered into a consent agreement resulting in a protective order entered by the district court that granted Linda temporary custody of Bo and Sam, with visitation on alternating weekends to Robert. The visitation exchange was set up to take place at a police station, and Robert exercised his visitation at a local motel.

Following a weekend visit in October 2001, Bo reported that Robert became angry after Bo and Sam started to argue. Robert responded by grabbing Bo by the shoulder and throwing a toy truck that struck Sam on the head. Bo also reported that Robert kicked him in the groin after he objected to his father’s behavior. The incident was subsequently reported to the state Department of Human Services (DHS). The DHS promptly conducted a comprehensive investigation and assessment.

The DHS filed a founded assessment report on November 8, 2001. The child protection worker who conducted the investigation prepared the report that determined the incident met the definition of child abuse based on Robert’s failure to provide proper supervision of children under his care. The report indicated Robert denied the incident occurred, and further stated that Robert believed Bo fabricated the event due to improper influences from Linda and a male friend. ' The child protection worker found Bo to be credible based on a variety of factors, and concluded Robert failed to properly supervise the two boys by- “a preponderance of evidence.” The report also concluded the incident was not minor, and that Robert was the alleged perpetrator in a ’prior founded child abuse report in November 2000. The prior report involved an assault incident between Robert and a stepchild. Consequently, the current report was placed in the state child abuse central registry.

Based on the event that occasioned the child abuse report, Linda filed an application in the domestic abuse proceeding to modify the terms of the visitation so as to limit Robert to supervised visits with Bo and Sam. The application for modification was set for hearing before the district court, and both Linda and Robert were represented by counsel.

The district court modified the visitation provided under the protective order by written order on December 7, 2001. It found the incident reported by Bo “took place” and that Robert “demonstrated inappropriate anger” that endangered the children. The court found Bo’s report was consistent, detailed, and credible. To the contrary, the court found Robert’s denial was “implausibl[e]” and “hollow.”

On March 5, 2002, Robert filed a written statement with the DHS claiming the report and assessment were erroneous. He requested that it be corrected. Robert claimed the report should be changed from “founded” to “not confirmed” and be removed from the central registry for four reasons: (1) Bo fabricated the incident due to manipulative influences by Linda; (2) there was insufficient evidence of a physical injury to Bo or Sam; (3) Robert does not fit the profile of a child abuser; and (4) employees at the motel where the visitation took place reported Robert was an attentive father to the boys. Additionally, Robert asserted that he submitted to a polygraph examination that revealed he truthfully answered questions about the alleged incident.

The DHS denied the correction request, and Robert sought review through the state inspection and appeals procedure. The DHS asserted Robert was precluded from seeking to change the conclusion in the report from “founded” to “not confirmed” because the district court decision previously determined the incident occurred as reported by Bo. The DHS sought to dismiss the request.

An administrative law judge issued a proposed ruling dismissing the request. The director of the Department of Human Services subsequently adopted the ruling as a final decision.

Robert then sought judicial review of the DHS decision from the district court. The district court affirmed the agency action based on issue preclusion.

Robert appealed, and raised three grounds of error. First, he claimed the doctrine of issue preclusion did not apply because there was no identity of issues between the modifieation-of-visitation proceeding in district court and the request to correct the abuse report before the admin: istrative agency. Second, he claimed issue preclusion did not apply because a statute gave him the right to an evidentiary hearing on his request to correct the abuse report. Finally, he claimed issue preclusion did not apply under an exception to the rule, based on the legislature’s specific allocation of jurisdiction to the DHS to correct child abuse assessments.

II. Standard of Review

Chapter 17A governs our review. We may only interfere with the agency’s “decision if it is erroneous under one of the grounds enumerated in the statute, and a party’s substantial rights have been prejudiced.” Meyer v. IBP, Inc., 710 N.W.2d 213, 218 (Iowa 2006) (citing Iowa Code § 17A.19(10)). We are bound by the agency’s findings of fact “if supported by substantial evidence in the record as a whole.” Id. (citing Excel Corp. v. Smithart, 654 N.W.2d 891, 896 (Iowa 2002); Iowa Code § 17A.19(10)(f)). “[T]he question on appeal is not whether the evidence supports a different finding than the finding made by the commissioner, but whether the evidence ‘supports the findings actually made.’ ” Id. (quoting St. Luke’s Hosp. v. Gray, 604 N.W.2d 646, 649 (Iowa 2000)). In contrast, we are not bound by the agency’s interpretation of the law and “may substitute our interpretation for the agency’s.” Id. (citing Clark v. Vicorp Rests., Inc., 696 N.W.2d 596, 604 (Iowa 2005)). Finally, while “[w]e allocate some degree of discretion” to the agency in its application of the law to the facts, we may reverse if the agency’s application of the law to the facts was affected by “irrational reasoning; failure to consider relevant facts; or irrational, illogical, or wholly unjustifiable application of law to the facts.” Id. (citing Iowa Code § 17A.19(10)(c), (i), (j), (to )).

Whether the elements of issue preclusion are satisfied is a question of law. See Comes v. Microsoft Corp., 709 N.W.2d 114, 117 (Iowa 2006) (reviewing decision as to applicability of doctrine of issue preclusion for correction of errors at law); Mrozek v. Intra Fin. Corp., 281 Wis.2d 448, 699 N.W.2d 54, 61 (2005) (“Whether issue preclusion is a potential limit on litigation in an individual case is a question of law ....”); accord Bartlett v. Dep’t of Revenue ex rel. Bartlett, 125 P.3d 328, 330 (Alaska 2005); Smith v. U.S-R-V. Props., LC, 141 Idaho 795, 118 P.3d 127, 130 (2005); Simpson v. Chi. Pneumatic Tool Co., 693 N.W.2d 612, 616 (N.D.2005). Therefore, we are not bound by the agency’s decision on this issue, and may substitute our own interpretation of the law for the agency’s. See Iowa Code § 17A.19(10)(c) (stating a reviewing court may reverse agency action if it is “[biased upon an erroneous interpretation of a provision of law whose interpretation has not clearly been vested by a provision of law in the discretion of the agency”).

III. Issue Preclusion

Issue preclusion, or collateral es-toppel, “prevents parties from relitigating issues previously resolved in prior litigation if certain prerequisites are established.” Comes, 709 N.W.2d at 117 (citing Hunter v. City of Des Moines, 300 N.W.2d 121, 123 (Iowa 1981)). We have identified four elements that must be satisfied in order for the prior determination to have preclusive effect in a subsequent proceeding. They are:

“(1) the issue concluded must be identical; (2) the issue must have been raised and litigated in the prior action; (3) the issue must have been material and relevant to the disposition of the prior action; and (4) the determination made of the issue in the prior action must have been necessary and essential to the resulting judgment.”

Id., 709 N.W.2d at 118 (quoting Hunter, 300 N.W.2d at 123); see also Restatement (Second) of Judgments § 27, at 250 (1982) (“When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.”); id. § 29, at 291 (“A party precluded from relitigating an issue with an opposing party, in accordance with §§27 and 28, is also precluded from doing so with another person unless the fact that he lacked full and fair opportunity to litigate the issue in the first action or other circumstances justify affording him an opportunity to relitigate the issue.”).

In considering the application of the doctrine, it is important to observe that it applies to both legal and factual issues. We have said “where a particular issue or fact is litigated and decided, the judgment estops both parties from later litigating the same issue. The entire premise of issue preclusion is that once an issue has been resolved, there is no further fact-finding function to be performed.” Colvin v. Story County Bd. of Review, 653 N.W.2d 345, 348-49 (Iowa 2002) (citations omitted); see Restatement (Second) of Judgments § 27 cmt. c (“An issue on which relitigation is foreclosed may be one of evidentiary fact, of ‘ultimate fact’ (i.e., the application of law to fact), or of law.”).

While a request to correct data and findings in an abuse report can present a variety of legal and factual issues that may prevent a party from satisfying the first element of issue preclusion, in this case, Robert only sought to challenge the finding by the DHS that the incident occurred as described by Bo. Thus, the issue raised by Robert in the proceeding to correct the assessment was factual in nature, and dealt with credibility — did the incident occur as described by Bo? Although the modification of the visitation proceeding presented different legal issues, the same predicate factual issue raised by the request to correct the child abuse assessment was presented — did the incident occur as described by Bo? Accordingly, the identity of the factual issues supports application of the doctrine of issue preclusion under the circumstances of this case, as long as the other elements are met.

Notwithstanding, as with most principles of law, the doctrine of issue preclusion is not without exceptions. See Restatement (Second) of Judgments § 28, at 273-74 (“Exceptions to the General Rule of Issue Preclusion”). Even when all elements of the doctrine are satisfied, there are circumstances when it will not be applied to prevent relitigation of an issue.

We have recognized an exception to the doctrine when the allocation of jurisdiction between two courts or adjudicative bodies justifies a new determination of the issue by the body given jurisdiction over an action. Heidemann v. Sweitzer, 375 N.W.2d 665, 667-68 (Iowa 1985). This exception has been fully stated in Restatement (Second) of Judgments section 28(3):

Although an issue is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is not precluded in the following circumstances:
(3) A new determination of the issue is warranted by differences in the quality or extensiveness of the procedures followed in the two courts or by factors relating to the allocation of jurisdiction between them.... ”

Restatement (Second) of Judgments § 28(3), at 273.

A comment to the Restatement rule explains that the exception applies to situations in which issue preclusion is “asserted in an action over which the court rendering the prior judgment would not have had subject matter jurisdiction.” Id. cmt. d, at 279. The comment further explains that the exception does not apply to every incident when a court in the first action does not have subject matter jurisdiction over the second action, but only when there are special reasons to exclude application of the issue preclusion doctrine. See id. (“In many such cases, there is no reason why preclusion should not apply; the procedures followed in the two courts are comparable in quality and extensiveness, and the first court was fully competent to render a determination of the issue on which preclusion is sought. In other cases, however, there may be compelling reasons why preclusion should not apply.”). One such reason is when “the legislative allocation of jurisdiction ... may have been designed to insure that when an action is brought to determine a particular issue directly, it may only be maintained in a court having special competence to deal with it.” Id. The comment states:

In such instances, after a court has incident[al]ly determined an issue that it lacks jurisdiction to determine directly, the determination should not be binding when a second action is brought in a court having such jurisdiction. The question in each case should be resolved in the light of the nature of litigation in the courts involved and the legislative purposes in allocating jurisdiction among the courts of the state.

Id.

The situation presented in this case is the subject of this exception. Although the district court lacked jurisdiction to hear and decide initial requests to correct child abuse reports, it decided an issue of fact in the course of exercising its jurisdiction in a parallel court proceeding that was subsequently presented to an administrative agency in the course of exercising its jurisdiction to hear and decide requests to correct child abuse reports.

We adopted and applied this exception in Heidemann v. Sweitzer, where a finding by a district court in a suppression hearing in a criminal case that an arresting officer failed to comply with the implied consent procedures was asserted to preclude reliti-gation of the same factual issue by a hearing officer in a Department of Transportation (DOT) hearing to revoke a driver’s license for refusal to submit to a chemical test under the implied consent- law. Heidemann, 375 N.W.2d at 666-67. We found that the legislature specifically vested the DOT with jurisdiction to revoke a driver’s license for refusal to submit to testing pursuant to the implied consent procedure by enacting chapter 321B, and that this grant of specific jurisdiction was a recognition “that the department has special competency to resolve the relatively narrow issues which arise in such license revocation proceedings.” Id. at 668. We found the decisionmaking authority given to the DOT by the legislature would be undercut by applying the doctrine of issue preclusion based on a parallel criminal proceeding that happened to rule on a factual issue concerning a law enforcement officer’s compliance with the statutory procedure for requesting a driver to submit to a chemical test. Id. Thus, we must decide if the legislature similarly designed the child abuse statute to enable the DHS to decide issues presented in an action to correct a child abuse assessment even though they may have previously been decided in a parallel court proceeding.

Our legislature enacted the child abuse statute after it recognized “[cjhildren in this state are in urgent need of protection from abuse.” Iowa Code § 232.67. In order “to provide the greatest possible protection to victims or potential victims of abuse,” the legislature established a comprehensive system of child abuse reporting, assessment, and rehabilitation. Id. The legislature also placed the DHS at the forefront of this protective net, and assigned it myriad critical responsibilities and duties to perform. See generally id. chs. 232, 235A. One such duty involves the receipt and assessment of child abuse reports, as well as the maintenance of a central registry of founded child abuse assessments. See id. § 232.71B(l)(a) (“If the department determines a report constitutes a child abuse allegation, the department shall promptly commence an appropriate assessment within twenty-four hours of receiving the report.”); id. § 235A.14(1) (“There is created within the state department of human services a central registry for child abuse information.”); id. § 232.71D(3) (stating founded child abuse reports shall be placed on the central registry). The primary purpose of the assessment by the DHS is to protect the child named in the report, and a secondary purpose is to provide services. Id. § 232.71B(1)(6). The purpose of a central registry of founded child abuse reports is to help increase the ability of the State to confront the problem of child abuse and help identify victims or potential victims of abuse through a “single, statewide source of child abuse data.” Id. § 235A.12.

Under this statutory scheme, the DHS promptly conducts an assessment of every report alleging child abuse. Id. § 232.71B(l)(a). The assessment involves a comprehensive investigation and evaluation by a child protection worker, followed by a written assessment report. Id. § 232.71B(4) (assessment process); id. § 232.71B(11) (assessment report). The assessment process has numerous statutory requirements and components, and can involve the input of a multidisciplinary team, as well as others. Id. § 232.71B(4)-(10). An assessment of founded child abuse means the name of the child, the alleged perpetrator, and the pertinent assessment data, are placed on the central registry. Id. § 232.71D(3).

The comprehensive nature of the assessment process reveals the importance of accurate assessments. The existence of a central depository of the assessments to be used by various persons and agencies to combat child abuse also gives rise to separate legislative concerns for the safeguarding of the rights of others and the need for a fair and efficient assessment and registry system. See id. § 235A.12 (“[Vigorous protection of rights of individual privacy is an indispensable element of a fair and effective system of collecting, maintaining and disseminating child abuse information.”). To this end, the legislature provided for a means for those who are the subject of a child abuse report to examine and request the correction of data or findings of an assessment claimed to be erroneous. Id. § 235A.19. If a timely request is filed,

[t]he department shall provide the subject with an opportunity for an eviden-tiary hearing pursuant to chapter 17A to correct the data or the findings, unless the department corrects the data or findings as requested. The department may defer the hearing until the conclusion of a pending juvenile or district court case relating to the data or findings.

Id. § 235A.19(2)(&).

Considering the statutory scheme and important goals sought to be addressed, we think our legislature would not have given the DHS the responsibility to assess child abuse reports and maintain a central registry of the assessments without recognizing that the DHS possesses a special competency to carry out these duties consistent with the legislative goals. See Restatement (Second) of Judgments § 28 cmt. ⅞ at 279 (stating that issue preclusion should not prevent relitigating an issue within the special competency of the deci-sionmaker in the second action). Likewise, the legislature would not have given the DHS the important duty to determine and correct errors in assessments without recognizing the existence of a special competency to perform this responsibility. Thus, it is evident that our legislature designed the correction process so that issues relating to the correction of erroneous matters in assessment reports would be decided by the DHS. Cf. Heidemann, 375 N.W.2d at 668 (“The legislature by enacting chapter 321B has specifically vested the department with jurisdiction to revoke a driver’s license for refusal to submit to chemical testing under Iowa’s implied consent statute, thereby recognizing that the department has special competency to resolve the relatively narrow issues which arise in such license revocation proceedings. The department’s administrative decision-making authority should not be undercut by the fortuitous circumstance that a parallel criminal proceeding may result in an evidentiary ruling concerning compliance with implied consent requirements.”).

Moreover, the nature of the statutory proceeding to correct an erroneous assessment reveals that the DHS should not be deprived of the ability to decide issues presented in the course of a correction hearing that it might otherwise be precluded from deciding under a judicial doctrine because the issue happens to have been decided in a previous proceeding before another adjudicative body. The purpose of the legislative grant of jurisdiction to the DHS under section 235A.19(2)(f>) to hear claims to correct data in an assessment is to correct error. Yet, the judicial doctrine of issue preclusion was not created and is not used to preclude relitigation of an issue because the decision was correct. Instead, it has an entirely different focus. It precludes relitigation of an issue not because it was correctly decided, but rather to protect litigants from the vexation of relitigating issues and to promote judicial economy by preventing unnecessary litigation of issues previously decided. State ex rel Casas v. Fellmer, 521 N.W.2d 738, 74(M1 (Iowa 1994); see Robert C. Casad & Kevin M. Clermont, Res Judicata: A Handbook on Its Theory, Doctrine, and Practice 113 (2001) (“The doctrine of issue preclusion rests on the premise that one court should be as capable as any other to resolve issues in dispute. Once a judgment resolves the issues after the adversary system of adjudication has run its full and fair course, the issues should not again be open

to dispute by the same parties in any court. Issue preclusion not only accords with the dictates of fairness but also serves the interests of economy of judicial effort, fosters the certainty and stability of repose, and tends to prevent the anomalous situation, so damaging to public faith in the judicial system, of two authoritative but conflicting answers being given to the very same question.”); Allan D. Vestal, Res Judicata/Preclusion 8-12 (1969) (listing as purposes of issue preclusion, finality, prevention of harassment, efficient use of the courts, and prestige of the courts/consistency). The doctrine of issue preclusion applies even if the prior decision was wrong. See Gail v. W. Convenience Stores, 434 N.W.2d 862, 863 (Iowa 1989) (“The res judicata consequences of a final, unappealed judgment on the merits are not altered by the fact the judgment may have been wrong or rested on a legal principle subsequently overruled in another case.” (citing Federated Dep’t Stores v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 2428, 69 L.Ed.2d 103, 108-09 (1981))). Thus, the statutory correction procedure established by the legislature serves the goal of ensuring that the assessment data is correct, and this statutory goal is inconsistent with the doctrine of issue preclusion. The important public interest in maintaining correct records demands that the application of the doctrine of issue preclusion not be used to prevent the DHS from correcting assessment reports.

This conclusion is further supported by the language of the statute that permits the DHS to “defer the hearing” to correct an assessment “until the conclusion of the pending juvenile or district court case relating to the data or findings.” Iowa Code § 235A.19(2)(a). Clearly, the legislature understood that courts could be litigating issues of child abuse covered in a DHS assessment during the same time the DHS may be asked to correct an error in the assessment, and it permitted the DHS to “defer the hearing” on the correction request until a decision in the court action. Yet, this discretion to defer the correction hearing does not mean the agency must defer the correction decision to the courts. We have previously recognized in Heidemann that an agency with special competency and jurisdiction to decide particular matters should give weight to prior court decisions on the same issues presented before the agency, but the agency must ultimately decide the issue based on the power granted by the legislature. See Heidemann, 375 N.W.2d at 668 (“ ‘Perhaps some weight should be given to the decision handed down by the court, but certainly the agency has the right to exercise the power given to it by the legislature.’ ” (quoting Allan D. Vestal, Preelusion/Res Judicata Variables: Adjudicating Bodies, 54 Geo. L.J. 857, 886-87 (1966))). The court decision can be an aid to assist the agency in its goal to maintain accurate records, and we think our legislature had this concept in mind when it authorized the DHS to delay a hearing on a correction request until the conclusion of a parallel court proceeding.

In the end, the legislative policies and goals are best served by allowing the DHS to correct its own assessment of a child abuse report free from the doctrine of issue preclusion. The DHS should consider all timely claims of error by those who are the subject of a child abuse report and decide all issues presented by a correction request. Consequently, we reverse the decision of the district court and remand the case to the DHS for a hearing on the request to correct the assessment.

REVERSED AND REMANDED.

      . Iowa Code section 232.68(2)(d) defines "child abuse,” in part, to include
      [t]he failure on the part of a person responsible for the care of a child to provide for the adequate food, shelter, clothing or other care necessary for the child's health and welfare when financially able to do so or when offered financial or other reasonable means to do so.
      Iowa Code § 232.68(2)(d) (2001); see also Iowa Admin. Code r. 441' — 175.21 (" 'Denial of critical care’ is the failure on the part of a person responsible for the care of a child to provide for the adequate food, shelter, clothing or other care necessary for the children's health and welfare when financially able to do so, or when offered financial or other reasonable means to do so and shall mean any of the following: (1) Failure to provide adequate food and nutrition to the extent that there is danger of the child suffering injury or death. (2) Failure to provide adequate shelter to the extent that there is danger of the child suffering injury or death. (3) Failure to provide adequate clothing to the extent that there is danger of the child suffering injury or death. (4) Failure to provide adequate health care to the extent that there is danger of the child suffering injury or death. A parent or guardian legitimately practicing religious beliefs who does not provide specified medical treatment for a child for that reason alone shall not be considered abusing the child and shall not be placed on the child abuse registry. However, a court may order that medical service be provided where the child's health requires it. (5) Failure to provide the mental health care necessary to adequately treat an observable and substantial impairment in the child’s ability to function. (6) Gross failure to meet the emotional needs of the child necessary for normal development. (7) Failure to provide for the proper supervision of the child to the extent that there is danger of the child suffering injury or death, and which a reasonable and prudent person would exercise under similar facts and circumstances. (8) Failure to respond to the infant's life-threatening conditions (also known as withholding medically indicated treatment) by providing treatment (including appropriate nutrition, hydration and medication) which in the treating physician's reasonable medical judgment will be most likely to be effective in ameliorating or correcting all conditions, except that the term does not include the failure to provide treatment (other than appropriate nutrition, hydration, or medication) to an infant when, in the treating physician's reasonable medical judgment any of the following circumstances apply: the infant is chronically and irreversibly comatose; the provision of the treatment would merely prolong dying, not be effective in ameliorating or correcting all of the infant's life-threatening conditions, or otherwise be futile in terms of the survival of the infant; the provision of the treatment would be virtually futile in terms of the survival of the infant and the treatment itself under the circumstances would be inhumane.”); id. (" ‘Proper supervision' means that supervision which a reasonable and prudent person would exercise under similar facts and circumstances, but in no event shall the person place a child in a situation that may endanger the child’s life or health, or cruelly or unduly confine the child. Dangerous operation of a motor vehicle is a failure to provide proper supervision when the person responsible for the care of a child is driving recklessly, or driving while intoxicated with the child in the motor vehicle. The failure to restrain a child in a motor vehicle does not, by itself, constitute a cause to assess a child abuse report.”).

      . The other three elements' — that the issue was raised and litigated, material and relevant, and necessary and essential — are not challenged by Robert on appeal. Therefore, we do not address them and assume without deciding they are met. See ALCOA v. Musal, 622 N.W.2d 476, 479-80 (Iowa 2001) ("It is a well-established rule of appellate procedure that ‘[t]he scope of appellate review is defined by the issues raised by the parties’ briefs.’ Issues not raised in the appellate briefs cannot be considered by the reviewing court.” (Citations omitted.)).


source: Caselaw Access Project

author: WIGGINS, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellant, v. Lisa Renae MAJERES, Appellee.
    No. 05-0290.
    Supreme Court of Iowa.
    Sept. 15, 2006.

      Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, Darin J. Raymond, County Attorney, and Amy K. Oetken, Assistant County Attorney, for appellant.
    Timothy J. Kramer of Waagmeester Law Office, P.L.C., Rock Rapids, for ap-pellee.
   WIGGINS, Justice.

The district court held the State could not use an uncounseled guilty plea to a prior misdemeanor to enhance a subsequent offense to operating while intoxicated (OWI), third offense where the court imposed incarceration as part of its sentence on the prior offense without an in-court colloquy. Our court of appeals reversed the district court’s ruling. Because the defendant’s written guilty plea in the prior proceeding met the requirements of the Sixth Amendment to the United States Constitution and article I, section 10 of the Iowa constitution, we affirm the decision of the court of appeals, reverse the judgment of the district court, and remand the case for further proceedings consistent with this opinion.

I.Background Facts and Proceedings.

A Le Mars police officer stopped a vehicle Lisa Renae Majeres was driving after observing her commit multiple traffic infractions. After failing several field sobriety tests, she was arrested and taken to jail. There Majeres provided a breath sample revealing a breath alcohol concentration of .236. The State charged Ma-jeres with OWI, third offense, a class “D” felony.

Majeres had previously been convicted of OWI, first offense, in March 2000 in Woodbury County and OWI, second offense, in November 2001 in Sioux County. She had an attorney in connection with her guilty plea to the Woodbury County offense. The Sioux County offense was an aggravated misdemeanor. Instead of retaining an attorney for the Sioux County offense, she signed a plea agreement and written plea of guilty at the county attorney’s office.

The written plea of guilty stated Ma-jeres acknowledged the charge against her as OWI, second offense; her right to counsel; her right to plead not guilty; the attendant rights of trial; the maximum and minimum sentences; and that her plea was being made intelligently and voluntarily. The county attorney presented the plea to the district 'court without Majeres’ presence. Consequently, she never engaged in an in-court colloquy with a judge concerning her plea. The court accepted her guilty plea, entered a judgment of conviction, and as part of her sentence required her to be incarcerated for seven days.

In this case, Majeres claims the State cannot use the uncounseled Sioux County offense for which she was incarcerated to enhance the present charge to OWI, third offense. The district court agreed with Majeres’ claim.

The State filed a notice of appeal. We treated the notice as an application for discretionary review and granted the application. We transferred the case to our court of appeals. Our court of appeals reversed the district court’s ruling. We granted Májeres’ application for further review.

II. Issue.

It has previously been determined under the federal constitution that a court may use prior uncounseled misdemeanor convictions where no prison terms are imposed to enhance a subsequent conviction. Nichols v. United States, 511 U.S. 738, 748-49, 114-S.Ct. 1921, 1928, 128 L.Ed.2d 745, 755 (1994). We have found the Iowa constitution to be in line with the federal constitution in this respect. State v. Allen, 690 N.W.2d 684, 690 (Iowa 2005).- We have not decided if a court, in order to enhance a subsequent conviction, may use prior uncounseled misdemeanor convictions where the court imposed incarceration as part of its sentence without an in-court colloquy. The State raises this issue in its appeal.

III. Scope of Review.

This appeal implicates.constitutional claims under the state and federal constitutions. Allen, 690 N.W.2d at 687; State v. Moe, 379 N.W.2d 347, 350 (Iowa 1985). We usually review constitutional claims de novo. Allen, 690 N.W.2d at 687. However, where there is no factual dispute and the only issue is whether a court may constitutionally use a prior uncounseled misdemeanor conviction to enhance a subsequent crime, our review is for the correction of errors at law. Id.

IV. Analysis.

The Sixth Amendment to the United States Constitution provides “[i]n all criminal prosecutions, the accused shall enjoy the right to ... have the Assistance of Counsel for his defense.” U.S. Const, amend. VI. Article I, section 10 of the Iowa constitution also provides an accused with the right to the assistance of counsel. Iowa Const, art. I, § 10. Iowa’s right-to-counsel guarantee affords no greater protection than the federal constitution regarding the use of prior uncounseled misdemeanor convictions; therefore, we will limit our discussion to Majeres’ federal constitutional claim. Allen, 690 N.W.2d at 690-92.

At all critical stages of the criminal process, the Sixth Amendment affords an accused facing incarceration the right to counsel. Iowa v. Tovar, 541 U.S. 77, 80-81, 124 S.Ct. 1379, 1383, 158 L.Ed.2d 209, 215 (2004). Entry of a guilty plea, regardless of whether the plea is to a misdemeanor or a felony charge, “ranks as a ‘critical stage’ at which the right to counsel adheres.” Id. at 81, 124 S.Ct. at 1383, 158 L.Ed.2d at 215. Although a defendant has such a right to counsel, a defendant can choose to waive the right to counsel. Id. at 87, 124 S.Ct. at 1387, 158 L.Ed.2d at 219-20. A waiver of the right to counsel requires that a defendant do so knowingly and intelligently with sufficient awareness of the relevant circumstances. Id. at 81, 124 S.Ct. at 1383, 158 L.Ed.2d at 215. A defendant requires less rigorous warnings as to the waiver of plea counsel than for the waiver of trial counsel. Id. at 90, 124 S.Ct. at 1388, 158 L.Ed.2d at 221.

Accordingly, a prior uncounseled guilty plea to a misdemeanor charge where the court imposed incarceration as part of its sentence can be used to enhance a subsequent offense if the defendant knowingly and intelligently with sufficient awareness of the relevant circumstances waived the right to counsel in the prior proceeding. Thus, the determinative factor in this appeal is whether Majeres knowingly and intelligently with sufficient awareness of the relevant circumstances waived the right to counsel in the Sioux County proceeding. It is the defendant’s burden to prove he or she did not competently and intelligently waive the right to counsel when collaterally attacking a prior uncounseled conviction. Id. at 92, 124 S.Ct. at 1390, 158 L.Ed.2d at 223; see also Parke v. Raley, 506 U.S. 20, 31, 113 S.Ct. 517, 524, 121 L.Ed.2d 391, 405 (1992) (stating the proof burden is on the defendant in view of “the presumption of regularity that attaches to final judgments”).

When a defendant waives the right to counsel and enters a plea of guilty, the Sixth Amendment is satisfied by the trial court informing the defendant “of the nature of the charges against [the defendant], of [the defendant’s] right to be counseled regarding his [or her] plea, and of the range of allowable punishments attendant upon the entry of a guilty plea.” Tovar, 541 U.S. at 81, 124 S.Ct. at 1383, 158 L.Ed.2d at 216. The information a defendant needs to waive counsel intelligently depends on the particular facts and circumstances surrounding each case. Id. at 88, 124 S.Ct. at 1387, 158 L.Ed.2d at 220.

At the time Majeres entered her guilty plea, our rule allowed a defendant, when pleading guilty to a serious or aggravated misdemeanor, to waive the defendant’s appearance in open court to engage in an in-court colloquy. Iowa R.Crim. P. 8(2)(5) (2001) (amended Nov. 9, 2001, eff. Feb. 15, 2002; amended Dec. 22, 2003, eff. Nov. 1, 2004). In the Sioux County case, Majeres signed a written plea of guilty without counsel. In that written plea, she acknowledged the charge against her as OWI, second offense; her right to counsel; and the maximum and minimum sentences. Thus, her written plea met the informational requirements under Tovar to waive the right to counsel and plead guilty. An in-court colloquy is not necessary to ensure the waiver was voluntary, knowing, and intelligent. See Tovar, 541 U.S. at 87-88, 124 S.Ct. at 1387, 158 L.Ed.2d at 220 (stating the Court has not “prescribed any formula or script to be read to a defendant” in regards to the intelligence of waiving the right to counsel). A written guilty plea containing such a waiver is prima facie evidence the defendant gave the waiver voluntarily, knowingly, and intelligently. See State v. Liddell, 672 N.W.2d 805, 811 (Iowa 2003) (holding a written waiver of the right to a jury trial is prima facie evidence the waiver was voluntary, knowing, and intelligent).

Majeres failed to meet her burden of proving she did not voluntarily, knowingly, and intelligently waive her right to counsel in the Sioux County proceeding. In the present case, Majeres testified she did not have the money for an attorney and decided not to apply for court-appointed counsel in the Sioux County proceeding. When questioned why she did not apply for court-appointed counsel, she responded, “I didn’t feel I wanted one or needed one.” Prior to entering her plea of guilty in that case, Majeres obtained a copy of the police report and reviewed it. She acknowledged there was nothing in the police report that led her to believe she wanted to speak to an attorney prior to entering her guilty plea. She further testified she was comfortable in proceeding on her own without an attorney.

Consequently, the district court may use Majeres’ uncounseled guilty plea to the OWI, second offense, in Sioux County to enhance the offense in this case, even though the court imposed incarceration as part of its sentence without an in-court colloquy.

V. Conclusion and Disposition.

The defendant’s written guilty plea in the prior proceeding met the requirements of the Sixth Amendment to the United States Constitution and article I, section 10 of the Iowa constitution. Accordingly, the prior uncounseled plea to a misdemeanor that resulted in incarceration may be used to enhance the offense in the present criminal proceeding. Therefore, we affirm the decision of the court of appeals, reverse the judgment of the district court, and remand the case for further proceedings consistent with this opinion.

DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.

      . This rule is now renumbered as Iowa Rule of Criminal Procedure 2.8(2)(b).


text:
    CITY OF DES MOINES, Appellee, v. EMPLOYMENT APPEAL BOARD and Labor Commissioner Byron K. Orton, Appellants.
    No. 04-1763.
    Supreme Court of Iowa.
    Sept. 29, 2006.

      Rick Autry, Des Moines, and Gail Sheridan-Lucht, Des Moines, for appellants.
    Mark Godwin, Deputy City Attorney, Des Moines, for appellee.
   WIGGINS, Justice.

The Iowa labor commissioner filed a complaint against the City of Des Moines (City) for two serious violations of the general industry Iowa occupational safety and health (IOSH) standards for permit-required confined spaces in connection with two deaths and five injuries occurring to the employees of a contractor while working on a sewer-relining project for the City. The employment appeal board found the City committed the two serious violations and assessed a total penalty of $9000. The City sought judicial review of the appeal board’s decision. The district court reversed the decision of the appeal board. The appeal board and the labor commissioner appealed the district court’s decision. We transferred the case to our court of appeals. The court of appeals affirmed the district court’s decision. The appeal board and labor commissioner then sought further review, which we granted.

On further review, we find (1) the commissioner did not violate Iowa Code section 17A.8 (2001) when he used federal interpretations, of the United States occupational safety and health administration (OSHA) standards as a guide in interpreting those standards; (2) the City’s due process rights were not violated when the commissioner and the appeal board relied on the federal interpretations of the OSHA standards; (3) the appeal board was correct in its interpretation of the general industry permit-required confined spaces standards (29 C.F.R. section 1910.146); (4) substantial evidence supports the appeal board’s conclusion that the general industry permit-required confined spaces standards were applicable to this sewer project; (5) the appeal board properly determined that the City was a “host employer” under 29 C.F.R. section 1910.146(c)(8)®, (iii); and (6) substantial evidence supports the appeal board’s decision that the City committed two serious violations.

In view of these conclusions, we vacate the decision of the court of appeals, reverse the district court’s decision, and remand the case to the district court for an entry of judgment upholding the employment appeal board’s decision.

I. Background Facts and Proceedings.

Upon receiving a notice from the Iowa department of natural resources (DNR) of the presence of raw sewage in Dean’s Lake, the City contracted with Insituform Technologies USA, Inc. to reline a portion of its sewer. Before receiving this notice, the City did not have any plans to work on the sewer. In July 2002, fumes from unidentified sewer gases overcame Insitu-form workers inside the City-owned sewer line. Two workers collapsed inside the sewer and drowned in pooling water. Five other workers were seriously injured in the incident.

The City’s plan for the sewer project called for a sanitary sewer renovation using a cured-in-place pipe liner, sewer cleaning, reconnecting sewer services, bypass pumping, and other related items. The plan required Insituform to insert a liner within an existing sewer pipe, expand the liner within the pipe, and cure it in place with heat. Insituform was also required to install fillets to reduce the sharp angles in the sewer and increase the liner’s strength.

Prior to the start of this project, the City developed procedures relating to sewer entry consistent with the IOSH general industry standards for permit-required confined spaces. Insituform had a similar confined spaces entry plan for its employees.

A pre-construction meeting was held between City officials and Insituform representatives before work began in the sewer. At that meeting, the City did not discuss its permit-required confined spaces procedures with Insituform. From the start date of the actual work in the sewer to the date of the fatal accident, the City had an inspector at the work site virtually every day.

After the accident, the Iowa division of labor services occupational safety and health bureau investigated the circumstances surrounding the accident. After completing its investigation, the bureau cited the City for two serious violations. The first violation was based on 29 C.F.R. section 1910.146(c)(8)®, as incorporated in Iowa’s administrative rules, for the City’s failure to inform Insituform that the sewer contained permit spaces and that permit space entry is allowed only through compliance with a permit space program. See Iowa Admin. Code r. 875 — 10.20(88). The City was also cited for a violation of the provisions in 29 C.F.R. section 1910.146(c)(8)(iii), as incorporated in Iowa’s administrative rules, for its alleged failure to apprise Insituform of what precautions and procedures the City implemented to protect employees in or near permit spaces where Insituform personnel would be working. See id. The citation proposed a penalty of $4500 for each violation, or $9000 in total.

The City contested the citation. The commissioner filed a complaint with the employment appeal board. An administrative law judge presided over the hearing on the complaint. In addition to offering testimony and exhibits at the hearing, the parties stipulated that the City did not perform the actions required in 29 C.F.R. section 1910.146(c)(8)®, (iii).

The administrative law judge entered a decision and proposed order affirming the violations concluding (1) the commissioner’s reliance on federal interpretations of its OSHA standards in deciding what violations may have occurred did not amount to rulemaking in violation of Iowa Code section 17A.3; (2) the safety and health regulations for general industry promulgated under 29 C.F.R. part 1910 apply to the work in the sewer, rather than the safety and health regulations for construction employment promulgated under 29 C.F.R. part 1926; and (3) the City was a “host employer” under 29 C.F.R. section 1910.146(c)(8). The judge disagreed with the determination that the violations were serious violations, amended the violations to other than serious violations, and reduced the penalty to a total of $2500.

The City appealed the decision to the employment appeal board. The appeal board issued a decision and final order agreeing with the administrative law judge’s decision as to the violations, but found the violations to be serious violations and reinstated the $9000 penalty.

The City petitioned the district court for judicial review. The district court reversed the appeal board’s decision and voided the penalty. The court concluded the commissioner’s reliance on the federal OSHA documents constituted an abuse of discretion and unlawful rulemaking, the work performed by Insituform was not governed by the general industry safety and health regulations promulgated under 29 C.F.R. part 1910, and the City was not a “host employer” under 29 C.F.R. section 1910.146(c)(8).

The appeal board and the commissioner appealed. We transferred the case to our court of appeals. Our court of appeals affirmed the district court’s ruling concluding the commissioner’s reliance on the federal OSHA documents constituted an abuse of discretion and unlawful rulemak-ing in violation of Iowa Code section 17A.3, as such reliance was undisclosed and authoritative. Our court of appeals also found substantial evidence did not support the appeal board’s decision approving the citation under the general industry standards. The court of appeals did not reach any other issues raised on appeal by the parties. The appeal board and commissioner filed an application for further review, which we granted.

II. Issues.

To resolve this appeal we must decide whether: (1) the appeal board erred when it held the commissioner did not violate Iowa Code section 17A.3 when he used federal interpretations of the OSHA standards as a guide in interpreting those standards; (2) the City’s due process rights were violated when the appeal board relied on the federal interpretations of the OSHA standards; (3) the appeal board erred in interpreting the general industry permit-required confined spaces standards (29 C.F.R. section 1910.146); (4) substantial evidence supports the appeal board’s conclusion that the general industry permit-required confined spaces standards applied to the work in the sewer; (5) the board properly determined that the City was a “host employer” under 29 C.F.R. section 1910.146(c)(8)(i), (iii); and (6) substantial evidence supports the appeal board’s decision to find the City committed two serious violations.

III. Scope of Review.

When reviewing the decision of the district court on judicial review, “we must apply the standards set forth in [the Iowa Administrative Procedure Act] and determine whether our application of those standards produces the same results as reached by the district court.” ABC Disposal Sys., Inc. v. Dep’t of Natural Res., 681 N.W.2d 596, 601 (Iowa 2004); see also Iowa Code § 88.9(1) (providing judicial review of occupational safety and health citations is in accordance with the Iowa Administrative Procedure Act). The Iowa Administrative Procedure Act allows the district court .to reverse or modify an agency’s decision only if it is incorrect under a ground specified in the Act, and a party’s substantial rights have been prejudiced. Iowa Code § 17A.19(10). Neither party claims if we find one of the enumerated provisions in section 17A.19(10) exist, that the actions of the commissioner do not affect the substantial rights of the City. Because of the different nature of each issue raised on appeal, we will discuss the applicable standards of review as we discuss each issue.

IV. Iowa Code Section 17A.3.

The Iowa legislature authorized the commissioner to adopt and promulgate occupational safety and health standards that the United States secretary of labor adopted and promulgated as permanent standards by and in accordance with federal law. Iowa Code § 88.5(l)(a). Pursuant to this authorization, the commissioner adopted parts of the federal OSHA standards governing general industry safety and health. Iowa Admin. Code r. 875— 10.20(88). The commissioner also adopted parts of the federal OSHA standards governing construction employment. Iowa Admin. Code r. 875 — 10.12(88)(2). Although the sewer is a confined space as defined by the general industry safety and health standards, the permit-required confined spaces standards do not apply to construction employment. 29 C.F.R. § 1910.146(a) (adopted by Iowa Admin. Code r. 875 — 10.20(88)). Construction employment is governed by 29 C.F.R. part 1926. IOSH regulations define construction employment as “work for construction, alteration, or repair.” Iowa Admin. Code r. 875 — 10.12(88)(2).

The appeal board adopted the commissioner’s interpretation. It found the work in the sewer was governed by the permit-required confined spaces standards contained in the general industry safety and health standards, rather than construction employment standards. In support of its decision, the appeal board relied on the testimony of Mary Bryant, IOSH administrator. In her testimony, Bryant looked to OSHA instruction CPL 2.100 and an OSHA standard interpretation to determine whether the general industry or the construction employment standards applied to the work in the sewer. The United States department of labor authored the instruction and the standard interpretation. CPL 2.100 discusses when the general industry safety and health standards apply to a project. The instruction states in relevant part:

Generally speaking, refurbishing of existing equipment and space is maintenance; reconfiguration of space or installation of substantially new equipment (as for a process change) is usually construction. Those spaces identified under 1910.146(c) as permit spaces that are undergoing maintenance or modifications, which do not involve construction, would be subject to the General Industry standards.
A confined space created during or as a result of construction activity or entered to perform construction activity would usually fall within the scope of the 29 CFR 1926 standards and the general duty clause until the space is turned over for General Industry operations.
The relining of a sewer line using a sleeve which is pushed through a section of the existing system is maintenance.

U.S. Dep’t of Labor, Occupational Safety & Health Admin., CPL 2.100 — Application of the Permit-Required Confined Spaces (PRCS) Standards, 29 C.F.R.1910.14.6 (May 5,1995).

The standard interpretation expanded on the difference between construction and maintenance operations. It provides:

29 CFR 1910.12(b) defines construction work as “work for construction, alteration, and/or repair, including painting and decorating.” Generally speaking reconfiguration of space or installation of substantially new equipment is usually considered construction, whereas refurbishing of existing equipment and space is considered maintenance.
Maintenance operations are covered by general industry standards contained in 29 CFR 1910 and construction activities are covered by the construction standards contained in 29 CFR 1926. While paragraph (a), scope and application, of 29 CFR 1910.146 does not apply to construction activities, it does not exclude contractors from coverage when performing maintenance type operations in confined spaces.
Thus, if you are a contractor performing maintenance type activities for a host employer, compliance with 29 CFR 1910.146 is required. Some examples of maintenance operations would be:
Relining of a sewer line using a sleeve which is pushed through a section of the existing system.

U.S. Dep’t of Labor, Occupational Safety & Health Admin., Standard Interpretations-Confined Spaces: Use of Rescue-Type SCBAs; Maintenance v. Construction (Apr. 12,1996).

The City claims the commissioner’s reliance on the OSHA instruction and the standard interpretation is unlawful rule-making under the Iowa Code. The City also claims that the commissioner cannot use the OSHA instruction and the standard interpretation because the commissioner did not index them as required by the Code. The Code provides:

In addition to other requirements imposed by Constitution or statute, each agency shall:
b. Adopt rules of practice setting forth the nature and requirements of all formal and informal procedures available to the public, including a description of all forms and instructions that are to be used by the public in dealing with the agency.
d. Make available for public inspection all rules, and make available for public inspection and index by subject, all other written statements of law or policy, or interpretations formulated, adopted, or used by the agency in the discharge of its functions.
2. No agency rule or other written statement of law or policy, or interpretation, order, decision, or opinion is valid or effective against any person or party, nor shall it be invoked by the agency for any purpose, until it has been made available for public inspection and indexed as required by subsection 1, paragraphs “d” and “e”. This provision is not applicable in favor of any person or party who has actual timely knowledge thereof and the burden of proving such knowledge shall be on the agency.

Iowa Code §§ 17A.3(1)(6), (d), 17A.3(2).

To decide this issue, we must interpret section 17A.3. The interpretation of a statute is always a matter of law to be determined by the court. City of Marion v. Iowa Dep’t of Revenue & Fin., 643 N.W.2d 205, 206 (Iowa 2002). However, under certain circumstances we are required to give some deference to the agency’s interpretation. Id. Chapter 17A prescribes the amount of deference we should give to the view of an agency. Iowa Code § 17A.19(11). Because the legislature did not vest the interpretation of section 17A.3 with the agency, we do not give any deference to the view of the agency and employ a correction-of-errors-at-law standard of review. Id. § 17A.19(10)(6); Thoms v. Iowa Pub. Employees’ Ret. Sys., 715 N.W.2d 7, 11 n. 3 (Iowa 2006); Auen v. Alcoholic Beverages Div., Iowa Dep’t of Commerce, 679 N.W.2d 586, 590-91 (Iowa 2004).

A purpose of Iowa Code section 17A.3 is to prevent secret agency rulemak-

ing when the agency uses undisclosed but authoritative interpretations of law or policy. Doe v. Iowa State Bd. of Physical Therapy & Occupational Therapy Exam’rs, 320 N.W.2d 557, 561 (Iowa 1982). However, these provisions are not relevant unless the agency applies the undisclosed authoritative interpretations as a matter of law, rather than merely applying the interpretations as relevant to the factual situation. See Ford v. Iowa Dep’t of Human Servs., 500 N.W.2d 26, 29 (Iowa 1993).

Applying these considerations, we agree with the appeal board’s decision that the commissioner’s use of the OSHA instruction and the standard interpretation did not amount to unlawful rulemaking. The commissioner alleged in his complaint that the City violated the standards contained ' in 29 C.F.R. section 1910.146(c)(8)(i), (iii), not that it violated the OSHA instruction or the standard interpretation. The commissioner adopted the standards of 29 C.F.R. section 1910.146(e)(8)(i), (iii) using the required rulemaking procedures. These standards were properly indexed in the administrative code. See Iowa Admin. Code r. 875— 10.20(88). Therefore, we also agree with the appeal board’s decision that the commissioner’s actions did not amount to the unlawful use of unindexed authorities.

The commissioner used the OSHA instruction and the standard interpretation as an aid in interpreting whether the City’s inaction was governed by the general industry safety and health standards contained in 29 C.F.R. part 1910. Accordingly, the administrator did not use the OSHA instruction and standard interpretation to establish a rule of law in this proceeding. In making the determination whether the general industry safety and health standards, as contained in 29 C.F.R. part 1910, governed the City’s inaction, the commissioner only applied the OSHA instruction and standard interpretation as relevant to this factual situation. Cf. Anderson v. Iowa Dep’t of Human Servs., 368 N.W.2d 104, 107-08 (Iowa 1985) (holding an agency could not use a policy found in a department’s employee manual as the rule of law to determine a contested issue because the agency never adopted a rule containing such a policy).

V. Due Process.

The City claims the commissioner’s and appeal board’s reliance on the OSHA instruction and the standard interpretation violated the due process guarantees of article I, section 9 of the Iowa constitution and the Fourteenth Amendment to the United States Constitution. Although the City raised the constitutional issue before the appeal board, the district court did not reach this issue, instead finding the other issues raised by the City were dispositive of the case. Under these circumstances we can review the City’s due process claims on appeal. See Anderson, 368 N.W.2d at 107 (stating “[i]f the district court found one issue dispositive and did not address the other issues, we can scrutinize all issues in reviewing the rulings”). Our review of a constitutional issue raised by a party in an agency proceeding is de novo. ABC Disposal Sys., Inc., 681 N.W.2d at 605.

The notion of due process requires that “no person shall be deprived of life, liberty, or property, without due process of law.” Iowa Const, art. I, § 9; U.S. Const, amends. V, XIV, § 1. We have stated that the state and federal due process clauses are interpreted the same, “including [when] ... differentiating between ‘procedural’ and ‘substantive’ due process.” Master Builders of Iowa, Inc. v. Polk County, 653 N.W.2d 382, 397 (Iowa 2002). The City does not specify whether procedural or substantive due process applies, but claims because it did not have fair notice of what conduct is classified as prohibited a due process violation occurred.

We have held:

Under the Due Process Clause, a civil statute is unconstitutionally vague “when its language does not convey a sufficiently definite warning of the proscribed conduct.” The legal test for determining vagueness is: “[i]f the statute’s meaning is fairly ascertainable by reliance on generally accepted and common meaning of words used, or by reference to the dictionary, related or similar statutes, the common law, or previous judicial constructions, due process is satisfied.” There is a presumption of constitutionality and a litigant can only rebut this presumption by “negating every reasonable basis on which the statute can be sustained.” “Literal exactitude or precision is not required.” “A statute is not unconstitutionally vague merely because a key word has not been specifically defined.” To avoid a rule from unduly restricting the regulation of certain matters, a certain degree of indefiniteness is necessary.

ABC Disposal Sys., Inc., 681 N.W.2d at 605 (citations omitted).

As we previously determined, the rules of law applicable to this agency proceeding are contained in 29 C.F.R. parts ■ 1910 and 1926, as incorporated in Iowa’s administrative rules. The commissioner used the OSHA instruction and standard interpretation as relevant authority to interpret and apply the standards to the facts of this case. The commissioner’s reliance on these and like authorities is no different than if he relied on case law, similar statutes, or previous agencies’ construction of 29 C.F.R. parts 1910 and 1926.

The OSHA instruction and standard interpretation are public documents readily available on OSHA’s website. U.S. Dep’t of Labor, Occupational Safety & Health Admin., http://www.osha.gov (last visited -Sept. 28, 2006). Additionally, OSHA instruction CPL 2.100 has been cited in federal occupational safety health review commission decisions. See, e.g., Sec’y of Labor v. Drexel Chem. Co., 18 O.S.H. Cas. (BNA) ¶ 31,260, at 43,873 (Mar. 3, 1997). The use of the OSHA instruction and standard interpretation does not violate due process guarantees because the City had fair notice of what conduct is classified as prohibited. Therefore, neither the commissioner’s nor the appeal board’s use of the OSHA instruction and standard interpretation violated the City’s due process guarantees under article I, section 9 of the Iowa constitution or the Fourteenth Amendment to the United States Constitution.

VI. Interpretation of the General Industry Standards.

The appeal board interpreted the IOSH standards and concluded that the general industry permit-required confined spaces standards were applicable to this sewer project, rather than the construction employment standards. The City contends the board erred in applying the general industry permit-required confined spaces standards. We disagree.

The legislature gave the labor commissioner the authority to promulgate Iowa’s occupational safety and health standards. Iowa Code § 88.5(l)(a). The legislature also made all determinations regarding the issuance of a standard by the commissioner conclusive if substantial evidence supports the standard. Id. § 88.5(10). This legislative authority vests the interpretation of standards with the Iowa department of labor. Thoms, 715 N.W.2d at 11-12. Accordingly, we will give appropriate deference to the agency’s interpretation of the standards and reverse the agency’s action if it is based on an interpretation of law that is “irrational, illogical, or wholly unjustified.” Iowa Code §§ 17A.19(10)©, 17A.19(ll)(c).

To aid it in its interpretation of 29 C.F.R. parts 1910 and 1926, the commissioner relied on OSHA instruction CPL 2.100 and a standard interpretation. We find nothing wrong with the agency’s reliance on these documents. The federal occupational safety health review commission has found it proper for OSHA to rely on similar documents to support its interpretation of a safety standard. See Drex-el, 18 O.S.H. Cas. (BNA) at 43,875 n. 3 (citing numerous decisions where the federal agency relied on CPLs to support interpretations of standards).

Additionally, the City introduced its own standard interpretation in support of its case. U.S. Dep’t of Labor, Occupational Safety & Health Admin., Standard Interpretations — Construction v. Maintenance (Aug. 11, 1994). This interpretation is consistent with the OSHA instruction and the standard interpretation relied on by the commissioner. It provides in relevant part that:

There is no specified definition for “maintenance,” nor a clear distinction between terms such as “maintenance,” “repair,” or “refurbishment.” “Maintenance activities” can be defined as making or keeping a structure, fixture or foundation (substrates) in proper condition in a routine, scheduled, or anticipated fashion. This definition implies “Keeping equipment working in its existing state, i.e., preventing its failure or decline.” However, this definition, (taken from the directive on confined spaces) is not dispositive; and, consequently, determinations of whether a contractor is engaged in maintenance operations rather than construction activities must be made on a case-by-case basis, taking into account all information available at a particular site.
In other instances, where an activity cannot be easily classified as construction or maintenance even when measured against all of the above factors, the activity should be classified so as to allow application of the more protective 1910 or 1926 standard, depending on the hazard. In such cases, the citation should be issued in the alternative with the emphasis on the more protective standard.

Id.

In other words, because there is no bright line rule to determine whether an activity is maintenance or repair, we must look at the facts of each case to determine whether the task being performed was repair or maintenance. If the question is close as to whether the work constitutes repair or maintenance, the agency should apply the standards that provide more protection to the employees, depending on the hazard.

Therefore, we cannot say the board’s interpretation of the IOSH standards was “irrational, illogical, or wholly unjustified” when it interpreted the standards and applied the more protective general industry permit-required confined spaces standards contained in 29 C.F.R. part 1910.

VII. Substantial Evidence Analysis.

Having determined the agency’s interpretation of 29 C.F.R. parts 1910 and 1926 is not “irrational, illogical, or wholly unjustified,” we must now determine if substantial evidence supports the board’s decision that the general industry permit-required confined spaces standards apply to this case. Iowa Code §§ 17A.19(10)(/), 88.8(3). “The [agency’s] factual findings are binding on this court if supported by substantial evidence.” United Fire & Cas. Co. v. St. Paul Fire & Marine Ins. Co., 677 N.W.2d 755, 759 (Iowa 2004). Our inquiry is whether the evidence supports the findings made by the agency, not whether the evidence may support a different finding. Munson v. Iowa Dep’t of Transp., 513 N.W.2d 722, 723 (Iowa 1994) (citing Reed v. Iowa Dep’t of Transp., 478 N.W.2d 844, 846 (Iowa 1991)).

The record supports a finding that during the investigation of an oil/water mixture in Dean’s Lake, the DNR discovered the City discharged raw sewage into the lake. A City maintenance worker informed the DNR the discharge occurred when a contractor removed sludge during an upgrade of a sewer box containing sewer lines for both storm water and sewage. The DNR’s investigation concluded the leakage

did not occur due to mechanical failure or acts beyond the control of the owner, [rather] it occurred due to the failure [of the City] to have a contingency plan in place in case the lines failed during the upgrade of the sewer box.

To remedy the problem, the DNR required the City to “[s]ubmit a written plan for sewer box repairs [and] upgrades that will eliminate the potential for future prohibited bypasses and discharges.”

In response to this requirement, the City developed a plan to reline the East Twentieth Street sanitary sewer. The relining plan shows that the existing sanitary and storm sewers are contained in one rectangular sewer box. A six-inch-thick concrete common wall separates the two sewers. The sanitary sewer routes raw sewage to the City’s wastewater treatment plant, while the storm sewer routes rainwater and other run-off to natural waterways.

Although the DNR alerted the City to the discharge problem, this fact alone does not determine whether work on the sewer can be classified as repair or maintenance. The relining plan did not involve a repair to a specific area of the sewer where leakage may have occurred. Instead, the plan shows the City chose to reline all 6800 lineal feet of the sanitary sewer with a cured-in-place pipe liner. The plan also required the existing walls of the sanitary sewer to provide the structural support for the lining. The liner could not function without the existing sewer walls because it relied upon the existing structure of the sewer for its support and integrity. Other than enlarging two manhole covers, the contractor made no other structural changes to the sanitary sewer. During the relining of the sewer, the contractor was required to maintain the flow of waste through the system.

In order to place the liner in the existing sewer, Insituform’s employees were required to enter the sewer. For the hazards the workers encountered in the sewer, the permit-required confined spaces standards provide more protection than the construction employment standards.

Examining the sewer project in this light, we conclude the record supports the finding that the City was maintaining the existing sewer line because the work done in the sewer was not to fix a specific defect in the sewer, but rather to refurbish it by keeping it in good working order. Accordingly, substantial evidence supports the commissioner’s interpretation and the appeal board’s finding that the general industry permit-required confined spaces standards apply to this case rather than the construction employment standards.

VIII. Host Employer Violations.

The commissioner’s complaint alleges the City violated 29 C.F.R. section 1910.146(c)(8)®, (iii), as incorporated in Iowa’s administrative rules. These standards provide:

When an employer (host employer) arranges to have employees of another employer (contractor) perform work that involves permit space entry, the host employer shall:
(i) Inform the contractor that the workplace contains permit spaces and that permit space entry is allowed . only through compliance with a permit space program meeting the requirements of this section;
(iii) Apprise the contractor of any precautions or procedures that the host employer has implemented for the protection of employees in or near permit spaces where contractor personnel will be working®

29 C.F.R. § 1910.146(c)(8)®, (iii). Although the City stipulated that it did not comply with the duties created by these standards, the City claims it is not required to comply with any duties under these standards because it is not a “host employer.” We disagree.

By giving the commissioner both the authority to promulgate Iowa’s occupational safety and health standards and the ability to make conclusive all determinations regarding the issuance of a standard, if supported by’ substantial evidence, the legislature vested the interpretation of standards with the commissioner. Iowa Code §§ 88.5(l)(a), 88.5(10). As we did in division VT of this opinion, we will give appropriate deference to the agency’s’ interpretation of the standards and will only reverse the agency’s action based on an interpretation of law that is “irrational, illogical, or wholly unjustified.” Id. §§ 17A.19(10)(i), 17A.19(ll)(c).

The same rules of interpretation that apply to statutes apply to regulations of an administrative agency. City of Iowa City v. State Bldg. Code Bd. of Rev., 663 N.W.2d 868, 871 (Iowa 2003). The purpose of statutory construction is to determine legislative intent. State v. McCoy, 618 N.W.2d 324, 325 (Iowa 2000). The words chosen by the legislature, not what it should or might have said determine legislative intent. Painters & Allied Trades Local Union v. City of Des Moines, 451 N.W.2d 825, 826 (Iowa 1990). Words are given their ordinary and common meaning by considering the context within which they are used absent a statutory definition or an established meaning in the law. Midwest Auto. III, L.L.G. v. Iowa Dep’t of Transp., 646 N.W.2d 417, 426 (Iowa 2002). In addition, we may consider the legislative history of a statute when ascertaining legislative intent. State v. Allen, 708 N.W.2d 361, 366 (Iowa 2006).

Despite a list of definitions set forth in 29 C.F.R, section 1910.146(b), there is no definition for “host employer.” See generally 29 C.F.R. § 1910.146(b). The common meaning of “host” is a person or entity that invites guests onto its premises. See Webster’s Third International Dictionary 1094 (unabr. ed. 2002) (defining host as “one who receives or entertains guests or strangers socially or commercially”). It is clear from the context of the standards, “host employer” means an employer that has another employer’s employees perform work on the first employer’s premises. Not only does the common understanding of the word “host” require this interpretation, the legislative history of the standard confirms this interpretation.

Legislative history contained in the Federal Register confirms that a host employer is an employer that has another employer’s employees perform work on the first employer’s premises. Permit Required Confined Spaces, 59 Fed.Reg. 24,080, 24,-091 (June 5, 1989) (codified at 29 C.F.R. pt. 1910). The United States department of labor in a notice of proposed rulemaking regarding 29 C.F.R. part 1910 indicated a host employer is the individual who controlled the permit-required confined spaces. See id. (stating “[pjroposed (c)(10) requires individuals who control permit spaces (host employer) to provide contractors (or similar employers) who plan to have employees enter these permit spaces with all available information on permit space hazards; on efforts to comply with the standard; and on any other hazards, safety rules or emergency procedures” (emphasis added)). In a later notice of proposed rulemaking regarding 29 C.F.R. part 1910 the department disclosed it received a comment from its advisory committee on construction safety and health requesting that the work site owner or the host employer be responsible for compliance with the proposed rule. Occupational Exposure to Methylene Chloride, 57 Fed. Reg. 36,964, 36,967 (Aug. 17, 1992) (codified at 29 C.F.R. pts. 1910, 1915, 1926) (stating “the Committee suggested that the Agency consider designating the work site owner, or ‘host’ employer as being responsible for overall work site safety” (emphasis added)).

Finally, when OSHA issued its final rules for 29 C.F.R. part 1910, it explained the purpose of 29 C.F.R. section 1910.146(c)(8) is to “enable ... contractors to develop and implement permit space programs that satisfy section 1910.146.” Permit-Required Confined Spaces, 59 Fed. Reg. 4462, 4492 (Jan. 14, 1993). In referring to the obligations of the host employer, one commenter referred to the host employer as host company. Id. (stating “[i]n many circumstances, it is absolutely vital to the safety of all workers that confined space entries in existing process facilities remain under the close control of the host company, using one common and consistent set of procedures established for the facility, conforming to the OSHA rule” (emphasis added)). Another rule-making participant equated the host employer to the owner/operator. Id. at 4493 (stating “OSHA should recognize that the owner/operator may not have expertise in confined space entry and may only be able to provide the contractor with a list of chemicals, their MSDSs and physical information on the confined space. The owner/operator may be hiring an experienced contractor to perform the work precisely because he recognizes that he does not have the expertise to perform the task safely. In such a situation, the owner could not be expected to advise the contractor.” (Emphasis added.))

The record establishes the City was the owner of the sewer lines where Insitu-form’s employees performed the work. Based on the clear meaning of the words used in the standards and the legislative history we cannot say the commissioner’s interpretation and appeal board’s determination that the City is a “host employer” under 29 C.F.R. section 1910.146(c)(8) is “irrational, illogical, or wholly unjustified.”

IX. Penalties.

The commissioner alleged the violations by the City of 29 C.F.R. section 1910.146(c)(8)(i), (iii) constituted serious violations under Iowa Code section 88.14(2). The appeal board agreed with the commissioner’s determination. The City claims substantial evidence does not support these findings. Our review of the record reveals substantial evidence supports the appeal board’s findings that these two violations are serious violations.

[A] serious violation shall be deemed to exist in a place of employment if there is substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

Iowa Code § 88.14(11). The purpose of the host employer standards is twofold. First, the standards provide each contractor who works in a permit-required space owned by another the local knowledge gained by the owner, thereby furthering compliance with the general industry standards. Second, the standards inform each contractor of any hazards, safety rules, or emergency procedures that the owner identified regarding the owner’s permit-required confined spaces. Permit Required Confined Spaces, 54 Fed.Reg. at 24,091.

The City recognized that working in the sewers created a substantial probability of death or serious physical harm and developed its own sewer confined space entry procedures as required by the general industry permit-required confined spaces standards. The City distributed these standards to all City employees who entered its sewers.

Virtually every day, the City had an inspector at the work site. The City should have known through the exercise of reasonable diligence that it was a “host employer” under the permit-required confined spaces standards, and therefore required to provide certain information to Insituform before Insituform employees entered the sewer. The City also should have known that the employees of Insitu-form entered the sewer and when in the sewer, the workers were exposed to a substantial probability of death or serious physical harm.

Accordingly, there is substantial evidence supporting the appeal board’s determination that the City’s violations were serious violations.

X. Conclusion and Disposition.

In conclusion, we find (1) the commissioner did not violate Iowa Code section 17A.3 when he used federal interpretations of the OSHA standards as a guide in interpreting those standards; (2) the City’s due process rights were not violated when the commissioner and the appeal board relied on the federal interpretations of the OSHA standards; (3) the appeal board was correct in its interpretation of the general industry permit-required confined spaces standards (29 C.F.R. section 1910.146); (4) substantial evidence supports the appeal board’s conclusion that the general industry permit-required confined spaces standards were applicable to this sewer project; (5) the appeal board properly determined that the City was a “host employer” under 29 C.F.R. section 1910.146(c)(8)(i), (iii); and (6) substantial evidence supports the appeal board’s decision that the City committed two serious violations.

Accordingly, the district court should have affirmed the employment appeal board’s decision. Therefore, we vacate the decision of the court of appeals, reverse the district court’s decision, and remand the case to the district court for an entry of judgment upholding the appeal board’s decision.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS.