author: APPEL, Justice.

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Appellee, v. Edward L. WINTROUB, Appellant.
    No. 07-1701.
    Supreme Court of Iowa.
    Feb. 22, 2008.

      Waldine H. Olson, Omaha, NE, and David A. Richter, Council Bluffs, for appellant.
    Charles L. Harrington and Wendell J. Harms, Des Moines, for appellee.
   APPEL, Justice.

In this case, we consider the sanctions recommended by the Iowa Supreme Court Grievance Commission (Commission) against a previously suspended Iowa lawyer who allegedly engaged in improper business transactions with a client, neglected a client matter, and improperly retained an unearned fee. For the reasons expressed below, we reprimand the lawyer for his misconduct, but impose no further sanction in addition to his previously imposed two-year suspension.

I. Background Facts and Prior Proceedings.

A.Introduction. Edward J. Wintroub is a lawyer whose Iowa license was suspended in 2004 through reciprocal discipline after his Nebraska license was suspended by that state’s supreme court. In the Nebraska matter, Wintroub was found to have committed a series of transgressions including misappropriating client funds and comingling personal funds with those of his clients. Wintroub denied the allegations, asserted affirmative defenses of laches and estoppel, and further suggested that at all relevant times he was taking medications prescribed by physicians for a variety of medical conditions. Wintroub alleged that the known side effects of such medications included confusion, decreased concentration, decreased mental clarity, impaired memory, temporary memory loss, sleep disturbances, slurred speech, and seizures.

The Nebraska Supreme Court suspended Wintroub’s license for two years, placed him on an additional two-year term of probation, and imposed a number of additional conditions upon his reinstatement. State ex rel. Counsel for Discipline, Nebraska Supreme Ct. v. Wintroub, 267 Neb. 872, 678 N.W.2d 108 (2004). Pursuant to our rules, we imposed a two-year suspension on Wintroub’s Iowa license as a result of the Nebraska decision.

B. Allegations of the Board. In May 2006, the Iowa Supreme Court Attorney Disciplinary Board (Board) filed a new three-count complaint against Wintroub. Count I alleged that Wintroub had engaged in improper business dealings with a client, Ronald S. Bergman, in violation of various ethical rules. Count II alleged that Wintroub neglected a file when a client matter was dismissed for failure to designate an expert in a timely fashion. Count III alleged that Wintroub improperly handled funds received from a client, Mildred Van Winkle. The events giving rise to these allegations all occurred between 1999 and 2002, approximately the same time period in which Wintroub committed his prior ethical transgressions. The matter was tried to the Commission on stipulated facts.

C. Bergman Matters. The undisputed facts reveal that Wintroub and Bergman were close personal friends for many years before the two entered into an attorney-client relationship. Over time, Bergman retained Wintroub to represent him on legal matters, usually involving litigation. Bergman frequently employed more than one attorney on the same matter, however, and Wintroub was not Bergman’s attorney for business, corporate, or personal financial matters. The parties stipulated that Bergman believed that Win-troub was acting in his best interest at all times relevant to this disciplinary proceeding and that Bergman trusted Wintroub to do what was right.

In January 1994, Wintroub formed a Nebraska corporation called Takara Enterprises, Inc. for the purpose of buying, promoting, and selling artwork created by Seikichi Takara. In January 1999, at a time when Wintroub was representing Bergman in at least two lawsuits, Win-troub sold Bergman 22.5 shares of stock in Takara, Inc. for the sum of $150,000. Wintroub did not advise Bergman, a sophisticated investor, to seek independent counsel in connection with the transaction.

Shortly thereafter, Wintroub also procured a personal loan from Bergman. By May 25, 1999, loans totaling $275,000 from Bergman to Wintroub were memorialized in a promissory note drafted by Wintroub. The loan was unsecured and bore a rate of zero percent interest.

Prior to formalizing the loan, Wintroub made several disclosures to Bergman. He told Bergman that (1) he had monies owed to him from his principal client; (2) he had expanded his business in reliance on this client; (3) he had invested his personal financial resources to pay the expenses of his law practice; (4) he had exhausted his credit; (5) he had no other source of funds to keep his law practice in operation; (6) without the loan he might have to cut back his law practice, but would continue to represent Bergman; and (7) he had no idea when he would be able to repay the loan, but that it would certainly be a while. Wintroub did not advise Bergman to seek independent counsel to review the loan documents or transaction.

In 2000 and 2001, Bergman asked Win-troub to start paying on the promissory note, but Wintroub was unable to do so. In December 2000, Wintroub released John Sens, an associate, from his law firm. Sens had previously been assigned several of the Bergman matters. On February 21, 2001, Bergman terminated Wintroub’s representation in a litigation matter adverse to James Moyer. Bergman then retained Sens as counsel. Sens sent Wintroub letters dated February 27, March 28, April 4, and June 13 asking Wintroub to deliver the Moyer file to him. Wintroub had conversations with Sens and Bergman in an attempt to persuade them to allow him to continue the representation. Among other things, Wintroub claimed that he intended the attorney’s fees earned in the Moyer matter to be a source of repayment of the Bergman loan. Bergman, however, refused and, on September 12, 2001, filed a declaratory judgment action against Win-troub that, among other things, sought the return of the Moyer file. At this point, Wintroub returned the file. He also declared bankruptcy, thereby frustrating efforts by Bergman to collect on the loan.

D. Pack Matter. Wintroub was engaged by Randall and Laraine Pack in connection with an action against Drake University and others, including a nurse practitioner, related to the suicide of their son. During the engagement, an attorney in Wintroub’s office failed to designate an expert within the time limitations of Iowa Code section 668.11. As a result, the action was dismissed.

E. Van Winkle Matter. In December 2000, Mildred Van Winkle hired Wintroub to sue her former husband for personal injuries arising from an alleged assault and battery and intentional infliction of emotional distress. Suit was filed ■ in March 2001. In connection with the representation, Van Winkle signed a contingency fee agreement, but the agreement was not signed by Wintroub or any member of his firm. On January 11, 2002, Wintroub filed a motion to withdraw from the case “for the reason that [Van Winkle] has retained other counsel to represent her.” The district court allowed the withdrawal on the date the motion was filed, but Van Winkle and her new husband met with Wintroub the next day to discuss the case. At that time, Van Winkle signed a contract that reduced Wintroub’s contingency fee to 25%, but required immediate payment of $5000 “for work previously done and as a non-refundable engagement retainer.” Wintroub did not deposit the $5000 payment in his trust account. Ultimately, the lawsuit was eventually resolved adverse to Van Winkle on summary judgment because she had failed to reserve the tort action in her marriage dissolution. This case was dismissed through no fault of Wintroub or his firm.

F. Recommendations of the Commission. The Commission took no testimony and deliberated on the basis of the undisputed stipulations of fact and related exhibits. The Commission determined that the Board proved by a convincing preponderance of the evidence that Wintroub committed ethical violations in connections with Counts I and III. The Commission dismissed the claim in Count II. In its recommendation, the Commission did not specifically detail which disciplinary rules were violated.

With respect to Count I involving business relationships with a client, the Commission emphasized that Wintroub failed to meet his burden of showing that his transactions with his client were done with full and fair disclosure. With respect to Wintroub’s sale of stock to Bergman, the Commission stated that no accounting or other financial records were provided. In connection with the personal loan, the Commission stated that an attorney exercising professional judgment would insist, at a minimum, that sufficient collateral be required to secure the loan. Finally, with respect to the Moyer matter, the Commission observed that it should not have taken seven months and the filing of a declaratory judgment action for Bergman and his counsel to obtain the case file.

On Count II, dealing with the failure to timely designate experts in a malpractice action, the Commission expressed concern regarding Wintroub’s attempt to avoid responsibility for the problem. The Commission, however, stated that the problem, while perhaps appropriate for a malpractice claim, did not rise to an ethical violation.

On Count III involving the Van Winkle payment, the Commission simply did not believe Wintroub’s explanation that the $5000 fee was received for earned work. The Commission noted that Wintroub filed a motion to withdraw claiming that Van Winkle had retained other counsel. Van Winkle denied any such claim. As a result, the Commission found that Wintroub engaged in retainer fraud and misrepresentation.

On the matter of sanction, the Commission noted that Wintroub incurred a two-year suspension of his Iowa license on May 8, 2003 as a result of reciprocal discipline for events that occurred during the same time period as the current violations. Although the Commission believed that the current violations warranted a suspension of Wintroub’s Iowa license for two years, it recommended that the suspension run concurrently with the prior Iowa suspension. Because the previous suspension has expired, the Commission recommended that Wintroub be allowed to apply for reinstatement of his Iowa license, if he so desires.

II. Standard of Review.

This court reviews attorney disciplinary actions de novo. Iowa Ct. R. 35.11(3). The Board must prove all ethical violations by a convincing preponderance of the evidence. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Walker, 712 N.W.2d 683, 684 (Iowa 2006). On review, the court is free to adopt, increase, or reduce the sanction recommended by the commission. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Eich, 652 N.W.2d 216, 217 (Iowa 2002).

III. Discussion.

A. Business Relations with Client. Wintroub engaged in two business transactions with a client in which he and his client admittedly had conflicting interests. While there is no blanket prohibition on such transactions, our ethical rules in this area are very demanding. We have long held that when an attorney engages in business transactions with a client involving conflicting interests,- the burden is on the attorney to show that he acted in good faith and made full disclosures. Comm, on Prof'l Ethics & Conduct v. Mershon, 316 N.W.2d 895, 899 (Iowa 1982). As a result of this burden, a record that fails to show affirmatively that a client was fully advised about the facts of a transaction or its legal consequences leads to an ethical violation. Id.; Donaldson v. Eaton & Estes, 136 Iowa 650, 656, 114 N.W. 19, 21 (1907).

We have further found that full disclosure means more than simply disclosing the material terms of a transaction. Full disclosure means the use of active diligence on the part of the attorney to “fully disclose every relevant fact and circumstance which the client should know to make an intelligent decision concerning the wisdom of entering the agreement.” Mershon, 316 N.W.2d at 898. Further, the attorney.must give the same kind of legal advice that the client would have received if the transaction involved a stranger and not the attorney. Id. at 899. More recently, we emphasized that lawyers engaged in business transactions with clients involving conflicting interests “ ‘have a duty to explain carefully, clearly and cogently why independent legal advice is required.’ ” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Wagner, 599 N.W.2d 721, 727-28 (Iowa 1999) (quoting In re Wolk, 82 N.J. 326, 413 A.2d 317, 321 (1980)).

Wintroub made significant material disclosures in connection with both of the Bergman transactions. In connection with the sale of stock in Takara, Inc., however, the stipulation upon which this case was tried did not show that Wintroub disclosed the financial performance of the company through financial statements, annual reports, or oral summaries for the period beginning in January 1994, when Wintroub formed Takara, until the time of Bergman’s investment in January 1999. As a result, Wintroub has failed to meet his burden of showing full disclosure of every relevant fact and circumstance as required by our cases involving business relations with clients. Mershon, 316 N.W.2d at 898. Further, there is no record that Wintroub advised Bergman regarding the lack of liquidity ordinarily associated with minority interests in closely held corporations or the lack of control minority interests have over management. Finally, Wintroub admits that he did not advise Bergman of the need to obtain independent counsel in connection with the transaction. Because of Wintroub’s failure to demonstrate full factual disclosure and his failure to urge Bergman to seek independent counsel, we conclude Wintroub violated DR 5-104(A) (a lawyer shall not enter into a business transaction with a client if they have differing interests therein and the client expects the lawyer to exercise professional judgment therein for the protection of the client unless the client has consented after full disclosure).

In connection with the personal loan, Wintroub made a robust disclosure of his own dire financial circumstances. Nevertheless, Wintroub committed an ethical violation when he failed to urge Bergman to seek independent counsel prior to entering into this substantial transaction and to explain why independent counsel was important. In connection with the loan transaction, competent independent counsel would have engaged in an interactive process that would have questioned the unsecured nature of the loan, the lack of interest or timetable for repayment, and possible contingencies that could arise, likely demonstrating why the unstructured nature of the loan was not in Bergman’s best interests. While Wintroub may have fairly disclosed his financial circumstances, competent counsel would have explored Bergman’s own financial needs and the potential for the unstructured loan transaction serving as a point of contention in the future. The record is devoid of evidence that Wintroub made any of these disclosures. We conclude that Wintroub violated DR 5-104(A) in connection with the loan transaction.

We reiterate, again, our statement in Mershon that perhaps the safest and best course for an attorney is to decline to personally participate in business transactions where the attorney and the client have differing interests. Id. at 899. The high standard of disclosure expected in these situations is difficult to meet. By insisting that the client obtain independent legal advice, the attorney may avoid any perception that his communications with his client have been' colored or less than candid on the transaction in question, but even so, full disclosure of all relevant facts and circumstances is required.

B. Failure to Return the Client File. In the aftermath of the loan transaction, Bergman ended Wintroub’s representation in the Moyer matter. Thereafter it took seven months, the exchange of multiple letters, and ultimately the filing of an action for declaratory judgment, for new counsel to obtain the file. A seven-month effort to convince a client to change his mind regarding the surrender of a file, culminating in the necessity of filing a declaratory judgment action to enforce the client’s rights, is not the kind of behavior expected of attorneys under our disciplinary rules. Clients have a right to the return of their property, including their file. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Plumb, 589 N.W.2d 746, 748 (Iowa 1999). Through such behavior, Wintroub violated DR 9 — 102(B)(4) (a lawyer shall promptly deliver to the client as required by a client the properties in the possession of the lawyer which the client is entitled to receive).'

C. Missed Expert Deadline. The Board has charged Wintroub with neglect based upon the failure of an associate in his firm to meet an expert deadline in a medical malpractice action. We agree with the Commission that this one incident does not give rise to an ethical breach. low a Supreme Ct. Att’y Disciplinary Bd. v. Tompkins, 733 N.W.2d 661, 666-67 (Iowa 2007).

D. Payment from Van Winkle. With respect to the payment of $5000 from Van Winkle, the parties stipulated that the payment was made “for work previously done and as a non-refundable engagement retainer” and that the $5000 was not deposited in Wintroub’s trust account. While an attorney must deposit unearned fees into a trust account and cannot convert unearned fees for his own use, Iowa Supreme Court Board of Professional Ethics & Conduct v. Apland, 577 N.W.2d 50, 55 (Iowa 1998), the precise nature of the $5000 payment is not clear. As a result, we conclude that the Board has not established, on the present record, by a convincing preponderance of the evidence that the $5000 payment was unearned. As a result, we find no Apland violation.

E. Laches and Equitable Es-toppel. Wintroub asserts that the affirmative defenses of laches and equitable estoppel preclude the Board from proceeding with the charges against him. In the alternative, Wintroub argues that the delay in resolving these matters is a factor which mitigates any potential sanction.

The Bergman matters arose during a two-and-a-half-year time frame from January 1999 to June 2001. The Board received a complaint against Wintroub relating to Bergman in February 2002. The Board, however, did not file its charges in this matter for four-and-a-half years.

Wintroub argues that the events for which he is now charged occurred during the same time frame that gave rise to charges in Nebraska, which ultimately led to his suspension from the practice of law in Nebraska for two years. If all these matters had been considered at once, Win-troub argues, he would have received one consecutive period of suspension beginning in 2004.

With respect to laches, Wintroub makes only generalized arguments that he has been prejudiced by the delay in bringing the proceedings. There is nothing in the factual stipulation which identifies witnesses that have died, specific exculpatory evidence that has been destroyed, or specific matters that cannot be developed due to faded memories. We have generally required a factual showing of concrete prejudice before a defense of laches may be invoked. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Mulford, 625 N.W.2d 672, 680 (Iowa 2001).

On the equitable estoppel issue, Wintroub’s argument has similar factual shortcomings. Even assuming that equitable estoppel applies in attorney grievance proceedings, nothing in the record of this ease supports the claim that Wintroub has relied upon any action of the Iowa authorities to his detriment. See The Florida Bar v. McCain, 361 So.2d 700, 706 (Fla.1978) (holding equitable estoppel in disciplinary proceeding requires inducement to change position). In this case, the Iowa complaints were filed, the investigations were opened, and the proceedings initiated. There is nothing in the record to indicate that Iowa authorities made any representation or took any action to induce Wintroub into changing his position in reliance. While it is true that the dates of the Bergman matters overlap with other matters for which Wintroub was sanctioned by Nebraska and by Iowa, the mere existence of overlapping time frames does not establish a basis for asserting an estoppel defense.

Yet, Wintroub does have a point. He has been severely sanctioned for his past misconduct, but has had no recent misconduct. In addition to a two-year suspension, he complied with the terms of an additional two-year probation in Nebraska. Further, some of his past misconduct appears to have been associated with various medical conditions, which appear to have been resolved. Wintroub’s license to practice law in Nebraska has been reinstated.

While Wintroub has not yet sought reinstatement of his Iowa license, an additional period of suspension in Iowa could lead to reciprocal sanctions in Nebraska, thereby unfairly disrupting Wintroub’s efforts at rehabilitation. While this disruptive feature does not establish a complete defense, we do find it a factor that should be considered in mitigation. Indeed, it appears that the Commission, which recommended its two-year suspension run concurrently with Wintroub’s past suspension, agreed with Wintroub on this point. The impact of the Commission’s recommendation would be that no further period of suspension would be required and Wintroub could seek reinstatement in Iowa at any time.

F. Sanction. Based on the ethical violations found in Count I, we must consider the appropriate sanction for Win-troub. As indicated above, we agree with Wintroub that the lengthy delay in the proceedings is a mitigating factor. Win-troub has already served his two-year suspension in Nebraska and Iowa, and has satisfied the terms of his probation in Nebraska. He has apparently addressed medical problems that the Nebraska Supreme Court found to be a contributing factor in his ethical lapses. Without this history, Wintroub’s ethical violations would require suspension of his license for a three- to six-month period of time. See Plumb, 589 N.W.2d at 749 (imposing two-month suspension for failure to return client file upon request from new attorney); Comm. on Prof'l Ethics & Conduct v. Hall, 463 N.W.2d 30, 35-36 (Iowa 1990) (noting that sanctions for conflicting business relations vary from public reprimand to revocation).

In light of all the facts and circumstances, however, and rather than imposing an additional suspension to run concurrently with Wintroub’s already completed suspension as recommended by the Commission, we find it more appropriate to issue a public reprimand to Wintroub for the violations therein described. We are confident that this additional sanction in light of the unusual historical circumstances of this file will not be interpreted as a relaxation of our approach to situations where attorneys engage in business relations with clients, which remain subject to the strictest scrutiny, or to the need for attorneys to return client property.

IV. Conclusion.

We impose a public reprimand on Win-troub rather than the concurrent suspension recommended by the Commission. We tax the costs of this action to Wintroub pursuant to Iowa Court Rule 35.25.

ATTORNEY REPRIMANDED.

All justices concur except WIGGINS and HECHT, JJ., who take no part.


source: Caselaw Access Project

author: LARSON, Justice.

license: Public Domain

text:
    In the Matter of the ESTATE OF Edward A. SIEH, Deceased, Rodger A. Sieh and Carene E. Larsen, Trustees of the Edward A. Sieh Trust, Appellants, v. Mary Jane Sieh, Appellee.
    No. 06-1485.
    Supreme Court of Iowa.
    Feb. 22, 2008.

      Max E. Kirk and Jennifer L. Chase of Ball, Kirk & Holm, P.C., Waterloo, for appellants.
    Paul C. Peglow and Bethany J. Currie of Johnson, Sudenga, Latham, Peglow & O’Hare, P.L.C., Marshalltown, for appel-lee.
   LARSON, Justice.

The trustees of a revocable inter vivos trust have appealed from a district court order subjecting assets of the trust to payment of a spousal allowance ordered in the estate of the settlor pursuant to Iowa Code section 633.374 (2003). We affirm.

I. Facts and Prior Proceedings.

Edward Sieh established a revocable inter vivos trust in 1992 and transferred most of his property to the trust by a deed and a bill of sale. Also in 1992, he executed a will leaving the residue of his estate to the trust. He married Mary Jane in 1998, but did not change his trust or will to reflect the change in his marital status. Edward died in 2003, survived by Mary Jane, his widow, and four adult children. Mary Jane elected to take against the will under Iowa Code section 633.238. However, the assets of the estate were not sufficient to satisfy Mary Jane’s elective share, so the question arose whether the assets of the revocable trust could be distributed to her as payment of her elective share. We answered that question in the affirmative in Sieh v. Sieh, 713 N.W.2d 194, 198 (Iowa 2006) (Sieh I). Our holding was informed by an analogous Iowa case, In re Estate of Nagel, 580 N.W.2d 810 (Iowa 1998), as well as cases from other jurisdictions and the Restatement (Third) of Property. Sieh I, 713 N.W.2d at 198.

After our reversal and remand in Sieh I, Mary Jane applied for a spousal allowance under Iowa Code section 633.374, and the trustees resisted on the ground the estate had no assets from which to pay such an award. They contended that Sieh I held only that the assets of the trust were subject to payment of Mary Jane’s distributive share, but “does not direct the [dis-triet] court to augment the Sieh Estate in order to provide assets from which a spousal allowance may be paid.” The district court rejected that argument and ruled that the assets of the revocable trust were subject to payment of the spousal allowance. It awarded Mary Jane $8000 per month for twelve months, payable in a lump sum.

II. The Issues.

The trustees raise two issues: (1) did the district court abuse its discretion in awarding a spousal allowance as part of the costs of administration “when there are no assets in the estate from which the allowance can be satisfied,” and (2) did the court abuse its discretion in awarding the allowance “when defendants did not have an opportunity to review and respond to plaintiffs affidavit regarding her finances” in advance of the hearing.

III. The Controlling Statute.

Iowa Code section 638.374 provides this with respect to spousal allowances:

The court shall, upon application, set off and order paid to the surviving spouse, as part of the costs of administration, sufficient of the decedent’s property as it deems reasonable for the proper support of the surviving spouse for the period of twelve months following the death of the decedent.... The court shall take into consideration the station in life of the surviving spouse and the assets and condition of the estate.... Such allowance to the surviving spouse shall not abate upon the death or remarriage of such spouse.

IV. Application of Iowa Code Section 633.374.

Under section 633.374, a district court shall order a spousal allowance. Despite the “shall” language of the statute, we have held that a court’s ruling on an application for spousal support is reviewed for abuse of discretion. In re Estate of Spurgeon, 572 N.W.2d 595, 599 (Iowa 1998); In re Estate of Tollefsrud, 275 N.W.2d 412, 415 (Iowa 1979). In this case, we review the support order for an abuse of discretion, keeping in mind the requirement of the statute that the court “take into consideration the station in life of the surviving spouse and the assets and condition of the estate.” Iowa Code § 633.374.

We reject the trustees’ argument that the estate may not look to assets of the trust to fund a spousal allowance. We do so, first, based on section 633.3104(2), which, at the time of this case, subjected the assets of a revocable trust to payment of the costs of administration of the set-tlor’s estate when “the settlor’s estate is inadequate to satisfy those claims and costs.” By definition, a spousal allowance is a cost of administration and is, therefore, statutorily entitled to be satisfied out of the assets of the revocable trust. Id. §§ 633.3(8), 633.3104(2).

Our holdings in Sieh I and Nagel (which subjected trust assets to the payment of general claims) are consistent with this conclusion. In Sieh I, we built on Nagel’s holding and concluded “the rights of a surviving spouse should not be less favored than the interests of general creditors.” Sieh I, 713 N.W.2d at 198. Similarly, we believe in this case the right of a surviving spouse to an allowance under section 633.374 should not be less favored than the claims of general creditors or the payment of a distributive share.

In addition to our case law supporting that result, the Restatement provides:

An inter vivos donative transfer to others than the donor’s spouse ... that is revocable by the donor at the time of the donor’s death, is subject to spousal rights of the donor’s spouse in the transferred property that would accrue to the donor’s spouse on the donor’s death if the transfer had been made by the donor’s will.

Restatement (Second) of Property § 34.1(B) (1992). Comment k to this section further explains that the assets of a revocable inter vivos trust are subject to spousal rights, specifically “family allowances.”

We hold that the assets of the trust were properly subjected to payment of the spousal allowance. The court of appeals decision in In re Estate of Epstein, 561 N.W.2d 82 (Iowa Ct.App.1996), decided before Sieh I, reached a contrary result. In Epstein, the court of appeals held that the assets of a revocable trust could not be used to pay a spousal allowance because the trust and estate were separate entities and to “commingle the assets of the estate and the trust run[s] contrary to the purpose of establishing two separate entities.” Id. at 87. We reject that reasoning, based on the authorities discussed above, and overrule Epstein to the extent it does not allow revocable trust assets to be used to satisfy a spousal allowance.

V. The Procedural Argument.

The trustees complain that the district court abused its discretion by failing to allow them an “opportunity to review and respond” to Mary Jane’s financial affidavit furnished in support of her application for a spousal allowance. Her application was filed on August 14, 2006. The trustees filed a resistance on August 16, complaining that they lacked sufficient information regarding Mary Jane’s needs and “requesting] that an appropriate financial application be submitted to the court and the parties for review prior to the court’s further consideration of this matter.” Mary Jane responded and furnished an affidavit of financial status on August 28, 2006. The court’s order for support was entered the same day, without allowing the trustees any additional time to analyze the financial affidavit.

We find no merit in the trustees’ procedural complaint. Section 633.374 does not require that a financial affidavit be filed prior to the court’s award of spousal allowance, and none of our cases suggest it. In fact, a showing of necessity is not a prerequisite for receiving a spousal allowance. Spurgeon, 572 N.W.2d at 599; In re Estate of DeVries, 203 N.W.2d 308, 311 (Iowa 1972).

A separate statute, Iowa Code section 633.375, provides for review of an award made under section 633.374:

The court may, upon the petition of the spouse, or other person interested, and after hearing pursuant to notice to all interested parties, review such allowance and increase or decrease the same.

This section requires notice and hearing, and presumably the presentation of financial information, because it allows for increasing or decreasing the award. However, it is clear from a reading of this section that it applies only after the fact, i.e., only after the award has been made. Moreover, the trustees have not attempted to use section 633.375 to challenge the amount of the allowance.

The trustees understandably do not claim the spousal allowance of $36,000 (in an estate of approximately $1.7 million) is excessive, and we do not address that question.

The district court correctly subjected the trust assets to payment of the spousal allowance award, and we therefore affirm.

AFFIRMED.


author: HECHT, Justice.

text:
    Sheriff Dennis KUCERA and the Tama County Sheriff's Department, Tama County, Iowa, Appellees, v. Dino BALDAZO and Teamsters Local 238, Appellants.
    No. 05-2138.
    Supreme Court of Iowa.
    Feb. 29, 2008.
    Scott D. Soldon and Yingtao Ho of Pre-viant, Goldberg, Uelmen, Gratz, Miller & Brueggeman S.C., Milwaukee, Wisconsin, and Paige Fiedler of Fiedler & Newkirk, P.L.C., Urbandale, for appellants.
    John P. Roehrick of Roehrick Law Firm, P.C., Des Moines, for appellees.
   HECHT, Justice.

This case requires us to decide whether a deputy county sheriff holding a classified civil service position, who has been notified of the termination of his employment, may challenge the termination under the grievance and arbitration provisions of the collective bargaining agreement between his union and the county, or whether he may seek relief only through an appeal to the county’s civil service commission. We conclude the termination of the deputy’s employment may be challenged only through an appeal to the civil service commission under the circumstances of this case. Accordingly, we affirm the district court’s decision.

I. Factual and Procedural Background.

On May 13, 2005, Dennis Kucera, the Tama County Sheriff, terminated the employment of his deputy, Dino Baldazo. Baldazo was a member of Teamsters Local 238, a union that was a party to a collective bargaining agreement with Tama County. Baldazo filed a grievance under the terms of the agreement on May 19, 2005, and the sheriff responded the same day affirming the termination and denying the violation of the agreement claimed by Baldazo.

On May 24, 2005, the union sent a written notice to the sheriff informing him that his response to the grievance was unacceptable and invoking the arbitration procedures under the collective bargaining agreement. The sheriff and the union selected an arbitrator and agreed upon a date for the arbitration of their dispute. The arbitration was never held, however, because the sheriff subsequently concluded Baldazo’s challenge to the termination was within the exclusive jurisdiction of the civil service commission.

The sheriff filed a petition in equity against Baldazo and the union requesting the district court to (1) stay the arbitration proceedings initiated by Baldazo and the union under the terms of the collective bargaining agreement and the Public Employment Relations Act codified in Iowa Code chapter 20 (2005); (2) declare Balda-zo’s remedy, if any, for termination of his employment as a deputy sheriff must be pursued through a civil service proceeding under Iowa Code chapter 341A rather than through arbitration; and (3) declare Balda-zo’s right to challenge the termination under chapter 341A expired when he failed to appeal to the civil service commission within ten days after the termination of his employment.

Baldazo and the union filed an answer and counterclaim asserting Baldazo’s statutory right to challenge the termination through an appeal to the civil service commission is not preclusive of the right to pursue the grievance process authorized by the collective bargaining agreement. The pleading further asserted the sheriff should be ordered to participate in arbitration under the agreement because he (1) violated provisions of the Public Employment Relations Act as codified in Iowa Code chapter 20 and the terms of the collective bargaining agreement when he refused to arbitrate Baldazo’s grievance; (2) waived, by participating temporarily in the grievance procedure, the claim that arbitration is unavailable to Baldazo and the union under the collective bargaining agreement. The pleading filed by Baldazo and the union also alleged the sheriff should be estopped, as a consequence of his temporary participation in the grievance process and his failure to object to Baldazo’s invocation of the grievance procedures under the collective bargaining agreement until more than ten days after the termination, from asserting (1) the civil service commission has exclusive jurisdiction over Baldazo’s challenge to the termination; and (2) any future civil service appeal by Baldazo and the union challenging the termination is untimely because the sheriff did not object to the invocation of the grievance procedures or contend the civil service commission has exclusive jurisdiction of the matter until after the time for filing an appeal with the civil service commission had expired.

In its ruling granting the sheriffs motion for summary judgment, the district court concluded “civil service commissions [provide] the sole means for deputy sheriffs to appeal disciplinary actions.” The ruling rejected Baldazo’s waiver and estop-pel claims. Baldazo and the union have appealed.

II. Scope and Standards of Review.

“Review of a case in equity resulting in summary judgment is for correction of errors at law.” Keokuk Junction Ry. v. IES Indus., 618 N.W.2d 352, 355 (Iowa 2000) (citing Iowa R.App. P. 4; Baratta v. Polk County Health Servs., 588 N.W.2d 107, 109 (Iowa 1999)). Summary judgment is appropriate when there are no genuine issues of material fact, and the movant, is entitled to judgment as a matter of law. Iowa R. Civ. P. 1.981(3); Met-Coil Sys. Corp. v. Columbia Cas. Co., 524 N.W.2d 650, 653-54 (Iowa 1994). Where the parties agree that all material facts are undisputed, and the case presents solely legal issues, summary judgment is the appropriate remedy. Burton v. Univ. of Iowa Hosp. & Clinics, 566 N.W.2d 182, 185 (Iowa 1997).

III. Analysis.

In order to promote “harmonious and cooperative relationships between government[s] and [their] employees,” the Public Employment Relations Act (“the Act”) authorizes collective bargaining between public employers and their employees, establishes procedures for the processing of employee grievances, and authorizes binding arbitration of disputes arising from claimed violations of collective bargaining agreements. Iowa Code § 20.1 (permitting public employees to organize and bargain collectively); id. § 20.18 (authorizing grievance procedures including binding arbitration for the resolution of disputes, and allowing “public employees covered by civil service” to follow either the grievance procedures provided in a collectivé bargaining agreement, or in the event that grievance procedures are not provided under the agreement, to follow grievance procedures under Iowa Code chapter 8A (pertaining to state merit system employees) or Iowa Code chapter 400 (pertaining to municipal civil service employees)).

The sheriff, a public employer, Baldazo, a public employee, and the union exercised their statutory right to bargain and agreed, in relevant part:

Section 5.1. The parties agree that an orderly and expeditious resolution of grievances is desirable. All matters of dispute that may arise between the Employer and an employee or employees regarding a violation of any expressed provision of this Agreement shall be adjusted in accordance with the following procedure:
Section 5.2. Informal: An employee shall discuss a complaint or problem orally with the Sheriff or his designated representative within a five (5) calendar day period following its occurrence in an effort to resolve the problem in an informal manner.
Section 5.3. Grievance Steps:
Step 1. If the oral discussion of the complaint or problem fails to resolve the matter, the aggrieved employee and/or the Union shall present a grievance in writing to the Sheriff or his designated representative within five (5) calendar days following the oral discussion. The grievance shall state the nature of the grievance, [and] the specific clause o[r] clauses violated. Within five (5) calendar days after this Step 1 meeting, the Sheriff or his designated representative will answer the grievance in writing.
Step 2. Any grievance not settled in Step 1 of the grievance procedure may be referred to arbitration, provided the referral to arbitration is in writing to the other party and is made within five (5) calendar days after the date of the Sheriffs or his designated representative’s answer given in Step 1.

Baldazo and the union assert this agreement conclusively establishes their right to file a grievance to challenge the termination, and, upon impasse, their right to demand arbitration of the dispute. The strength of this assertion would be great indeed, and our resolution of this matter simple, if the Act and the agreement were the only matters requiring our consideration. But they are not. A second statute establishing a civil service framework for the resolution of employment disputes between employer-counties and their deputy sheriffs introduces ambiguity to the analysis.

Iowa Code chapter 341A prescribes a procedural framework for removing, suspending or demoting deputies who are classified as civil service employees:

No person in the classified civil service who has been permanently appointed or inducted into civil service under provisions of this chapter shall be removed, suspended, or demoted except for cause, and only upon written accusation of the county sheriff, which shall be served upon the accused, and a duplicate filed with the commission. Any person so removed, suspended, or reduced in rank or grade may, within ten days after presentation to the person of the order of removal, suspension or reduction, appeal to the commission from such order.

Id. § 341A.12. It is undisputed that Balda-zo was employed by Tama County in a “classified civil service position.” Id. § 341A.7. The sheriff maintains, and the district court concluded, chapter 341A constitutes the exclusive remedy for deputies employed in civil service positions who wish to challenge the termination of their employment.

A review of this court’s decisions addressing the interplay of statutes authorizing dispute resolution through grievance and mediation procedures and statutes providing for dispute resolution by civil service commissions is instructive in the disposition of this appeal. In City of Des Moines v. Civil Service Commission, 334 N.W.2d 133 (Iowa 1983), two city employees filed appeals with a civil service commission challenging their indefinite suspension from their jobs. 334 N.W.2d at 134. A hearing date was scheduled by the commission, but before that hearing could be held, the employees were fired from their employment. Id. Wishing also to seek the commission’s review of the termination of their employment, the employees sought on the day of the hearing to amend their notices of appeal accordingly. Id. The city resisted the proposed amendment, contending new notices of appeal were required to challenge the terminations, and asserting the civil service commission lacked subject matter jurisdiction because the employees failed to file such notices within the time permitted by the statute. Although the commission granted leave to amend the employees’ notices of appeal, this court ultimately reversed the commission’s ruling on the ground that the employees’ failure to file separate notices of appeal challenging their terminations “divested the commission of authority to hear the employees’ appeals as to that action by the city.” Id. at 136.

Not to be deterred, the discharged employees next filed suit in district court urging the court to compel the City of Des Moines to engage in arbitration as to the merits of their discharges under a collective bargaining agreement. Devine v. City of Des Moines, 366 N.W.2d 580, 581 (Iowa 1985). That litigation was also unsuccessful, however, as this court affirmed a summary judgment ruling in favor of the city. Id. at 583. We concluded Iowa Code chapter 400, which establishes a civil service remedy for municipal employees wishing to challenge the termination of their employment, constituted “the sole means by which the propriety of a civil service employee’s dismissal may be determined.” Id. at 582.

In the next legislative session following our decision in Devine, the General Assembly amended Iowa Code section 20.18 to read:

Public employees of the state or public employees covered by civil service shall follow either the grievance procedures provided in a collective bargaining agreement, or in the event that grievance procedures are not provided, shall follow grievance procedures established pursuant to chapter 19A or chapter 100, as applicable.

1986 Iowa Acts ch. 1118, § 1 (emphasis added to denote changes made by the amendment). The amendment thus expressly included, within the class of public employees who can collectively bargain for grievance procedures, persons covered by civil service under Iowa Code chapter 400. During the same legislative session, the General Assembly also amended section 400.27, which prescribes the civil service commission’s jurisdiction in matters involving municipal employees:

The civil service commission has jurisdiction to hear and determine matters involving the rights of civil service employees under this chapter, and may affirm, modify, or reverse any case on its merits.

1986 Iowa Acts ch. 1138, § 9 (emphasis added to denote changes made by the amendment). This amendment eliminated from the statute language interpreted by this court in Devine as an expression of the legislature’s intent to make the civil service remedy exclusive for municipal employees. Thus, in the 1986 amendments to Iowa Code section 20.18 and section 400.27, the legislature expressed its clear intention that the civil service remedies available to municipal employees under Iowa Code chapter 400 would henceforth constitute a default remedy to be pursued if grievance procedures were not available to them under a collective bargaining agreement.

This court’s next opportunity to address the interplay between remedies available to public employees under collective bargaining agreements and remedies available through civil service appeals arose in Jones v. Des Moines Civil Service Commission, 430 N.W.2d 106 (Iowa 1988). In that case, Jones, a city fire fighter, filed a grievance challenging his discharge for failure to achieve certification as an EMT. Jones, 430 N.W.2d at 107. The city denied the grievance, claiming the civil service commission had exclusive jurisdiction of the matter. Id. at 107. Jones filed a certiorari action and, with his union, also filed an equity action to enforce his right to challenge his discharge in a grievance proceeding. Id. The district court granted Jones’s motions for summary judgment in both cases. Id. We affirmed those rulings, concluding the legislature had overturned our ruling in Devine by amending Iowa Code section 20.18 and Iowa Code section 400.27 to expressly allow terminated municipal civil service employees to choose arbitration of their grievances rather than an appeal to the civil service commission. Id. at 108.

Baldazo and the union contend the district court erred in failing to extend to them the benefit of the rule announced in Jones. We disagree. The legislative amendments that overturned our decision in Devine do not compel the result urged by Baldazo and the union. Those amendments to section 400.27 and section 20.18 granted city employees covered by civil service the option to pursue grievance procedures under their collective bargaining agreements rather than civil service remedies. The amendments did not expressly grant this option to deputy sheriffs. While deputy sheriffs arguably fall within the broad class of “public employees covered by civil service” described in the amendment, that phrase must be read in conjunction with the other provisions of the amendment which clearly narrow the universe of public employees affected to those with alternative grievance procedures in chapters 8A and 400. Neither chapter 8A nor chapter 400 applies to deputy sheriffs, and they are therefore beyond the reach of the amendment.

When the legislature amended Iowa Code section 20.18 and Iowa Code section 400.27 in response to our decision in Devine, we believe it had in mind the expansion of remedies available to city employees. This conclusion is supported by the fact that the amendment to section 20.18 makes reference to chapter 400 pertaining to city employees, but makes no reference to chapter 341A which specifically addresses the rights of deputy sheriffs who are county employees. This fact is significant to our analysis as we strive to discern legislative intent. When interpreting laws, we are guided by the rule of “expressio unius est exclusio alterious.” “This rule recognizes that ‘legislative intent is expressed by omission as well as by inclusion, and the express mention of one thing implies the exclusion of others not so mentioned.’ ” Meinders v. Dunkerton Cmty. Sch. Dist., 645 N.W.2d 632, 637 (Iowa 2002) (quoting Marcus v. Young, 538 N.W.2d 285, 289 (Iowa 1995)). Thus, the legislature’s reference in the amendment of section 20.18 only to chapter 400 dealing with remedies available to city employees suggests the legislature did not intend to expand the choice of remedies available to deputy sheriffs.

Baldazo and the union contend in the alternative that even if chapter 341A constitutes the exclusive remedy for deputy sheriffs wishing to challenge the termination of their employment, the sheriff should be estopped, should Baldazo attempt to appeal his discharge to the civil service commission, from claiming such an appeal is untimely under Iowa Code section 341A.12. We conclude it would be inappropriate to decide this issue because it would require us to issue an advisory opinion. Because Baldazo has not filed an appeal with the civil service commission, there is no justiciable controversy for us to decide. See Stream v. Gordy, 716 N.W.2d 187, 193 (Iowa 2006) (stating we will decline to issue advisory opinions when we find the absence of a justiciable controversy).

IV. Conclusion.

We affirm the district court’s ruling granting summary judgment to the appel-lees. In reaching our decision, we have carefully considered all of the arguments and contentions raised by the parties. Those not addressed in this opinion either lack merit or were not preserved for our review.

AFFIRMED.

      . A document dated the same day and signed by the sheriff and Baldazo suggests the termination followed a confrontation between Bal-dazo and the Tama County Attorney on May 12, 2005.

      . The preamble paragraph of the agreement designates the "Tama County Sheriff's Office” as the employer, and the signature block of the document identifies the employer as "Tama County Sheriff Office.” The sheriff and the Chairman of the Tama County Board of Supervisors executed the agreement for the county. Unless otherwise indicated in this opinion, in the interest of brevity and clarity our references to the sheriff shall also constitute references to the county as the employer. The term of the bargaining agreement ran from July 1, 2004, to June 30, 2005.

      .The collective bargaining agreement between the county and the union provided Bal-dazo shall lose his seniority rights if he "is discharged and said discharge is not reversed through the grievance procedure.”

      . Any appeal to the civil service commission must be filed "within ten days after presentation to the [employee] of the order of removal.” Iowa Code § 341A.12. Baldazo did not file such an appeal.

      . Although certain deputies are expressly excluded from civil service coverage under section 341A.7, it is undisputed that Baldazo was a civil service employee.

      . If the commission’s decision affirms the sheriff's termination of the deputy’s employment, the deputy may, within thirty days, appeal the commission’s decision to the district court. The scope of judicial review of the commission’s decision is confined to a determination of whether the commission’s order was “made in good faith and for cause.” Iowa Code § 341A.12.

      . Prior to 2004, public employees of the state not covered by a collective bargaining agreement were subject to the grievance provisions of Iowa Code chapter 19A. See Iowa Code § 19A.14(1) (2001). During a restructuring of government in 2003, the General Assembly replaced the grievance procedures of chapter 19A with a more detailed grievance procedure within the new merit employment sys-tern for state employees, codified at Iowa Code chapter 8A, subdivision IV, and amended section 20.18 to reflect the change. 2003 Iowa Acts ch. 145, §§ 59-66, 145.

      . Prior to the 1986 amendment the second paragraph of section 20.18 read:
      Public employees of the state shall follow either the grievance procedures provided in a collective bargaining agreement, or in the event that no such procedures are provided, shall follow grievance procedures established pursuant to chapter 19A.
      Iowa Code § 20.18 (1985).

      . Prior to the 1986 amendment the first paragraph of section 400.27 read:
      The civil service commission shall have jurisdiction to hear and determine all matters involving the rights of civil service employees, and may affirm, modify, or reverse any case on its merits.
      Iowa Code § 400.27 (1985).

      . A deputy sheriff wishing to appeal his removal “may, within ten days after presentation ... of the order of removal, ... appeal to the commission.” Iowa Code § 341A. 12. Although Baldazo also raised a waiver argument before the district court, he has not maintained the argument on appeal.


text:
    BOARD OF DIRECTORS OF AMES COMMUNITY SCHOOL DISTRICT, Appellant, v. Dennis CULLINAN, Appellee.
    No. 05-1059.
    Supreme Court of Iowa.
    Feb. 29, 2008.
    Rehearing Denied April 1, 2008.

      Ronald L. Peeler of Ahlers & Cooney, P.C., Des Moines, for appellant.
    David J. Dutton and Corey R. Lorenzen of Dutton, Braun, Staack & Heilman, P.L.C., Waterloo, for appellee.
   LARSON, Justice.

The board of directors of the Ames Community School District terminated the coaching contract of Dennis Cullinan under the authority of Iowa Code sections 279.15-.19A (2003). Cullinan appealed to an adjudicator, pursuant to Iowa Code section 279.17, who reversed the termination. The board sought judicial review, the district court affirmed, and in a two-to-one decision, the court of appeals affirmed as well. On further review, we vacate the decision of the court of appeals, reverse the judgment of the district court, and remand.

I. Facts and Prior Proceedings.

Dennis Cullinan was employed by the Ames Community School District in 1997 as both a high school social studies teacher and head boys’ basketball coach. (Effective in 1985, a separate contract for coaching is required, independent of any contract for teaching. See Iowa Code § 279.19A. It is only Cullman’s coaching contract that is at issue here.). At the end of the 1997-98 school year, Cullman’s probationary status was extended for a year as the result of complaints the school administration had received regarding Culli-nan’s coaching — particularly his threatening and intimidating treatment of student-athletes and his use of profane language directed at the student-athletes. Five basketball players, including a returning let-terman, quit during the season. A memo to Cullinan from the athletic director on April 14, 1998, in connection with the extension of his probation, stated:

You are hereby notified that major concerns with the Boys Basketball Program exist that must be addressed and corrected during 1998-99.

The memo stated that the school expected the

[cjreation of a Less Threatening Environment for Players. Again, we must work to end the public perception that a few of your athletes have been threatened and intimated. There must not be any evidence that threats and intimidation are being used as a motivational tool in any manner .... It is expected that significant improvements in all areas will be realized during the next school year. As always, members of the District Athletic Administration will be continually available to offer any additional assistance necessary to help you tackle these important issues.

(Emphasis added.)

This memo essentially restated principles that were already emphasized by the Ames School District in both the parent-athlete handbook and the coach’s handbook. The parent-athlete handbook stated, as the first of five “basic principles” that

[t]he welfare of the kids comes first. In athletics there are numerous opportunities for coaches to exploit kids in order to win games, and we can all recount instances where this has happened. The physical, mental, and emotional well-being of our athletes must at all times be our primary concern.

The “coach’s handbook” stated:

Your leadership is vital to the end. It is expected to be of the highest quality exemplifying to the participants, student spectators, and adult spectators, the individual and team the qualities to be developed through our activities program. Measurement of success beyond the tangible performance record would be the intangible personality development and self-esteem factors that are a product of the major objectives of our athletic program.
Because the nature of your responsibilities are in the “public’s eye,” the district expects that your behavior be above reproach at all times, both on and off the playing field, and that your objectives and expectations be high and conform with the overall philosophy of our school. Good sportsmanship by your team should be modeled by you and your staff.

The coach’s handbook also directed: “In practice and competition refrain from swearing and profane language.”

Cullman received a satisfactory written evaluation from the athletic director in May 1999 and was offered a new contract for the 1999-2000 school year. No further concerns were raised regarding Cullinan’s coaching until the 2001-02 school year, when he became the subject of numerous student and parent complaints. During the 2001-02 school year, captains of the basketball team met with one of Cullinan’s assistants and Cullinan himself to complain about Cullinan’s treatment of team members.

One player and his father filed seven harassment complaints, alleging incidents of name-calling and profanity by Cullinan during the 2000-01 season. The athletic director investigated these complaints and found they had merit, although they did not meet the harassment-policy requirement that the acts complained of be “sexual []or discriminatory in nature.” The results of the harassment investigation were considered by the administration as a part of a larger inquiry prompted by other parents’ complaints filed collectively on May 10, 2002. On that date, a packet of material was delivered to the school administration entitled “Parents of Ames High Basketball Players vs. Dennis Culli-nan.” The packet contained a copy of the school’s harassment policy and sixteen letters from fifteen families outlining complaints primarily concerning Cullinan’s demeanor toward athletes, and the decreasing interest in the basketball program that resulted.

The authors of the letters stated in their summary of complaints that their concerns were not based on playing time or Culli-naris lack of basketball knowledge, were not about a single event, and were not about the team’s win/loss record. Rather, the parents stated that their concerns:

ARE about an environment that impacts young men’s confidence, self esteem and lives on and off the court.
ARE about long term behaviors over a number of years by Coach Cullinan that creates a negative, hostile environment.
ARE about parents and athletes that are afraid to come forward for fear of retribution or becoming the person with increased focus for criticism by the coach.
ARE about young men who love basketball, who walk away because of the environment.
ARE about a coach who advises injured players to not see a doctor, because they may receive medical restrictions, rather than showing concern for the health and well being of the athlete.
ARE about a' coach who ignores the rules of the Iowa High School Athletic Association setting a poor example for ethical behavior for the young men.
ARE about a coach who can talk a good story, but cannot “walk the talk.”

In response to the “Parents vs. Culli-nan” complaints, Cullman outlined his positive influence on the basketball program and provided several letters of support— primarily from fellow coaches familiar with Cullinan and his basketball program. The complaints and Cullman’s response were investigated by the athletic director, principal, and superintendent. On June 5, 2002, the athletic director summarized his conclusions and noted that Cullinan had not heeded the prior requirements set out in the 1998 probation-extension memo. The June 5 memo stated:

What complicates the current concerns in our boys’ basketball program even further is that issues about Mr. Culli-nan’s style and demeanor were addressed in a memorandum dated April 14, 1998, that was placed in his personnel file by former Ames High A.D. Dave Posegate. Specifically, Mr. Posegate’s memo states the following:
• “Individuals must be given a sense of self-worth and an understanding of their overall importance to the team.”
• “There must not be any evidence that threats and intimidation are being used as a motivational tool in any manner.”
My recommendation is that the district’s course of action involves an inclusive review of all information at hand — Mr. Posegate’s memo, this memo, the harassment investigation, all documents provided by the parents, and all documents provided by Mr. Cullman. The goal of the undertaking must be to bring closure to this issue once and for all. Changes are necessary. Either Mr. Cullinan needs to change how he addresses and interacts with his players or the district needs to change the person responsible for leadership in the boys’ basketball program.

(Emphasis added.)

This memo was followed by a memo from the assistant superintendent, Tim Taylor, to Cullinan dated July 2, 2002, outlining the administration’s perceptions of Cullman’s performance and directing Cullinan to take corrective measures. This memo, compiled following discussions with the athletic director and the superintendent, stated:

As you are aware, your professional judgment as an athletic coach is under constant scrutiny from students and parents as well. By failing to meet expectations you seriously jeopardize your credibility, place the district in an awkward situation, and tarnish your own reputation.
The behavior in question is the alleged and perceived intimidation and emotional abuse and the alleged and perceived fear of retribution, by you,' against student athletes under your control as members of the varsity boys basketball program. Such behavior is not consistent with our standards of conduct and is unacceptable. Several parents of athletes have stepped forward to express their belief that fear appears to be the main motivator used by you as a coach and because, in their opinion, no real relationship exists between the players and the head coach, it is in the best interests of their sons to not participate in the varsity basketball program in the future. These parents have also requested your immediate termination as Head Varsity boys Basketball Coach at Ames High. Of great concern is that this is not a “new” issue. A letter does exist in your personnel file and meetings for remediation of identical problems within the boys’ basketball program are documented from 1998.

(Emphasis added.) The memo then included a plan of remediation, which would result in

[d]emonstrating a positive and nurturing attitude with student-athletes
A professional response to offered refinements found within this document
A thorough understanding that intimidation through language and action will not be tolerated and do not fit with the District efforts in teaching and promoting respect for others.

The plan of remediation included the following provision, which has become a focal point of this appeal:

It is critical that in the future, when handling or dealing with acute individual student-athlete corrections, that these corrections must be:
Done away from the group setting or directed to the group as a whole
Done in the presence of an assistant coach or in the presence of the student’s counselor or parent.

Following this memo, Cullinan received a satisfactory year-end evaluation for the 2002-03 school year. However, the athletic director emphasized that the district would “continue to monitor and expect this coaching style to continue well into the future.”

Unfortunately, Cullinan’s coaching was again called into question on December 16, 2003, when Cullinan is alleged to have failed to comply with the July 2, 2002 directive prohibiting one-on-one “acute individual student-athlete corrections.” Alex Thompson, a player, failed to follow Culli-nan’s coaching instructions during a game, resulting in a turnover. After the game, Cullinan sent an assistant to bring Thompson to him. It is undisputed that Thompson and Cullinan met in a hallway without parents or other adults present and out of earshot of the assistant coaches, in apparent violation of the administration’s directive of July 2. Cullinan admitted he met with Thompson, but the tenor and purpose of the meeting is in dispute. Thompson claimed it was intimidating. Cullinan claims that the meeting was not corrective, and furthermore, the July 2 directive regarding one-on-one meetings was no longer in effect. Regardless of the purpose or tenor of the meeting, Thompson’s parents complained about the meeting to the superintendent the next day.

The administration investigated, concluding Cullinan violated the directive and suspended him for two games without pay. On March 23, 2004, Michael McGrory, principal, wrote a memo to Cullinan following a meeting with the athletic director and Cullinan. The principal stated that “[t]he two main concerns during your terms as coach” were (1) “[d]evelopment of a team concept” and (2) “[cjreation of a less threatening environment for players.” The memo continued:

Upon review of all the facts and circumstances during your tenure as head coach, it is apparent that you have not rectified the concerns to a satisfactory level. Due to your inability to make sufficient progress in the before mentioned concerns, I am recommending to the superintendent that your basketball coaching contract not be renewed.

On April 28, 2004, based on the principal’s recommendation of termination and his own investigation, the superintendent recommended termination of Cullman’s coaching contract for “[f]ail[ing] to effectively lead the program [and f]ail[ing] to adequately remediate leadership deficiencies in [the] program.” A hearing at Culli-nan’s request was held in June and July 2004, and the board voted unanimously to terminate Cullinan’s coaching contract. Additional facts will be discussed as we apply them in the disposition of the case.

II. Rules for Review of Termination Decisions.

Review of a school board’s termination of a teacher’s contract is for correction of errors at law. Walthart v. Bd. of Dirs., 694 N.W.2d 740, 744 (Iowa 2005). Under Iowa Code section 279.19A, the procedure for termination of coaching contracts is the same as for teachers’ contracts. See Iowa Code § 279.16.

Section 279.18 provides that, “[i]n proceedings for judicial review of the adjudicator’s decision, the court shall not hear any further evidence but shall hear the case upon the certified record.” On judicial review,

[t]he court may affirm the adjudicator’s decision or remand to the adjudicator or the board for further proceedings upon conditions determined by the court. The court shall reverse, modify, or grant any other appropriate relief from the board decision or the adjudicator’s decision ....

Iowa Code § 279.18. The statute does not state which decision is to be reviewed by the court — the adjudicator’s or the board’s. However, it is clear under our case law that we review the board’s findings, not those of the adjudicator. See Bd. of Educ. v. Youel, 282 N.W.2d 677, 682 (Iowa 1979) (“Under the statutory scheme, the Board alone makes findings of fact-”).

A reviewing court must determine whether a school board’s decision is supported by a preponderance of the competent evidence in the record. Walthart, 694 N.W.2d at 744. On review of the school board’s decision, especially on issues of credibility, the court is obliged to give weight to the board’s fact-findings, although it is not bound by them. Iowa Code § 279.18; Walthart, 694 N.W.2d at 745.

Termination of a teaching or coaching contract may only be for “just cause.” Iowa Code § 279.15(2). The legislature has not defined just cause; however, we have stated:

Probably no inflexible “just cause” definition we could devise would be adequate to measure the myriad of situations which may surface in future litigation. It is sufficient here to hold that in the context of teacher fault a “just cause” is one which directly or indirectly significantly and adversely affects what must be the ultimate goal of every school system: high quality education for the district’s students. It relates to job performance including leadership and role model effectiveness. It must include the concept that a school district is not married to mediocrity but may dismiss personnel who are neither performing high quality work nor improving in performance. On the other hand, “just cause” cannot include reasons which are arbitrary, unfair, or generated out of some petty vendetta.

Briggs v. Bd. of Dirs., 282 N.W.2d 740, 743 (Iowa 1979).

In addition to these general principles for review of termination cases, two additional questions arise in this case. The first is what weight should be given to the hearsay evidence presented to the board, and the second is what should be the proper scope of the board’s inquiry into just cause?

A. Hearsay Evidence. It is clear that hearsay evidence is admissible in teacher termination cases. Walthart, 694 N.W.2d at 744-45; Fay v. Bd. of Dirs., 298 N.W.2d 345, 349 (Iowa Ct.App.1980); Iowa Code § 279.16(4) (“The board shall not be bound by common law or statutory rules of evidence.... ”). The question here is how much weight should be accorded such evidence, and that

will depend upon a myriad of factors— the circumstances of the case, the credibility of the witness, the credibility of the declarant, the circumstances in which the statement was made, the consistency of the statement with other corroborating evidence, and other factors as well.

Walthart, 694 N.W.2d at 744-45.

Using this multiple-factor test, we believe the hearsay evidence in this case bore sufficient indicia of reliability to be properly considered. The administrative reports and memoranda, while hearsay, had been drafted as part of the school administrators’ official responsibilities. The parents’ letters in the packet of May 10, 2002, were, in most cases, signed by the writers, and in all cases, the writers were identified in the letters. The writers were therefore subject to being called for questioning by Cullinan if he had doubts about the accuracy of the letters or the parents’ motivations for writing them. In addition, the basketball players themselves were all identified in the letters and subject, if Cullman had desired, to be called as witnesses as well. The players’ statements were made under circumstances that tended to establish credibility. See id. at 745 (indicia of reliability was shown by the fact the “statements were made by adolescent teens just days after the tragedy”). In Walthart, we credited this testimony by a counselor and found other indications of reliability:

“My experience has been you get very, very accurate information when kids are vulnerable. All their defense mechanisms are down, and they just lay everything out there for you to work with.” Second, these statements were often made in private to trusted officials (i.e., the guidance counselor and basketball coach), or to figures of authority (i.e., the superintendent and police officers). Third, the testimony from all of the hearsay witnesses seems consistent— they all recalled that, when asked if Carol Walthart knew of the student drinking, the majority of the students stated that she did.

Id. Similarly in this case, the players’ statements were made by teenagers who were obviously distressed by the situation; they were made to trusted individuals, i.e., their parents; and they carried a consistent message — the players expressed the view that the coach was threatening and intimidating toward them.

We reject the argument that the board improperly considered the hearsay evidence. The termination statute and our cases make it clear that a board may consider such evidence in making its decision, and the evidence provided in this case bore sufficient indicia of reliability to be a part of the record.

B. The Scope of the Board’s Just-Cause Inquiry. It is true that the December 16, 2003 hallway incident involving Alex Thompson and Cullinan, in which Cullinan allegedly violated the plan for remediation, was the spark that initiated the proceedings for termination. The parties, however, raise a question as to the scope of the board’s just-cause inquiry: is it based exclusively on the events of December 16, as Cullinan appears to argue, or may the inquiry also include Cullman’s employment history predating December 16, as the board argues?

The adjudicator adopted a narrow scope of inquiry and limited the just-cause inquiry to the question of whether the December 16, 2003 incident violated the July 2002 remediation directive concerning one-on-one meetings. This is clear from his ruling in which he criticized the board for a “deliberate merging of the earlier incidents with the incident [on December 16], which triggered the termination at issue.” The district court and the court of appeals appear to have adopted a narrow scope of inquiry as well and concluded that the December 16 incident was insufficient to constitute just cause.

We reject this narrow scope of the board’s inquiry. While the board’s termination order discussed the December 16 incident at length, its order made it clear that the termination was based on Culli-nan’s entire history with the district — not just the December 16 incident. The latter incident was, apparently, merely the proverbial straw that broke the camel’s back. The superintendent listed two grounds for termination: “Failure to effectively lead the program [and] ... [t]o adequately remediate leadership deficiencies in [the] program.” The board concluded that both bases for termination had been established.

The attorney who conducted the hearing on behalf of the board rejected Cullman’s attempts to restrict the superintendent’s evidence to the December 16 incident. She correctly ruled that, because failure to remediate prior problems had been charged by the superintendent in his recommendation for termination, the board

[had to go] back to see what happened in the past to indicate whether or not the employee had knowledge of what was expected. I do believe that even '98 as well as 2002 is relevant for showing that, and so I’m going to rule that it is relevant for the board to consider what had been told to the coach in prior years.

The board’s evidence included Cullman’s entire employment history, and its decision was based on his failure to remediate prior problems as well as the events of December 16. The board’s order of termination stated:

The Board ... finds that while the December 16, 2003, incident with Alex Thompson would have been a sufficient reason to terminate Coach Cullman’s coaching contract, there was other sufficient evidence to terminate Coach Culli-nan'⅛ contract.

(Emphasis added.)

This broad scope of the just-cause inquiry is consistent with our case law. In Sheldon Community School District Board of Directors v. Lundblad, a teacher argued that the board could not consider incidents “long since resolved.” 528 N.W.2d 593, 596 (Iowa 1995). We rejected that argument, stating:

On the question of dredging up old records, it is inescapable that Lund-blad’s most recent run-ins with students and parents merely fit a pattern that has evolved over several years. The offensive remarks that led to his resignation as the girls’ track coach in 1986 are not unlike the derogatory and suggestive comments suffered by the girls’ basketball team in 1989 or the sarcastic student evaluations handed out in 1991 and 1992. In each case Lundblad assured district officials that he would do better in the future. Individually, the incidents may have been resolved satisfactorily. We do not believe the board, however, is compelled to ignore the pattern that emerges.

Id. at 596.

Similarly, in Randall v. Allison-Bristow Community School District, 528 N.W.2d 588 (Iowa 1995), the teacher was accused of physically grabbing a student in 1992. Randall, 528 N.W.2d at 590. Nine years earlier, in 1983, Randall had mishandled a student, resulting in a warning memorandum. Additional memoranda were issued for other incidents in 1987 and 1988, noting Randall’s “continued failure to abide by the district’s policies concerning supervision and/or physical handling of students.” Id. In Randall, we did not limit our inquiry to the last incident (the one that actually triggered the superintendent’s recommendation of termination), but viewed his entire disciplinary history, noting that the last incident was just “the last in a series.” Id. We affirmed the termination, and in doing so, we did not even discuss whether the 1992 incident that triggered the termination proceeding was sufficient in itself to constitute just cause. It was not necessary to do so. In this case, as in Randall, a single event, which was “the last in a series,” merely prompted the school administration to take action.

In this case, Cullinan cannot credibly argue that he was caught by surprise by the board’s consideration of his entire coaching career at the Ames High School, rather than limiting it only to the December 16 hallway incident. He was informed throughout his career about the need for respect toward athletes. These principles were continuously emphasized in the coach’s and parents’ manuals, the administration’s memoranda to Cullinan explaining the grounds for extending his probation, and numerous complaints from parents and students during his career. Further, Cullinan was notified by the superintendent that one of the grounds for termination was Cullinan’s failure to remediate preexisting problems. We conclude the board appropriately considered Cullinan’s coaching history in deciding whether to terminate his coaching contract.

C. The Board’s Just-Cause Determination. Cullinan asserts a number of arguments supporting his claim that the board did not have just cause to terminate his coaching contract, even considering his previous problems in the district. In order to determine whether the board’s decision was justified by a preponderance of the evidence, we must address each of Cullinan’s assertions, the board’s evidence, and the holdings of the adjudicator and of reviewing courts.

First, Cullinan contends the December 16 hallway meeting with Alex Thompson was not sufficient just cause for termination. This contention is based, initially, on Cullinan’s argument that the one-on-one meeting with Thompson did not violate any directive to which he was subject. Cullinan asserts that the prohibition against one-on-one meetings contained in the assistant superintendent’s July 2 directive was not included in the remediation plan he drafted and to which he was subject. The board responds that Cullinan’s remediation plan merely supplemented the July 2 directive, and thus, the provisions of both documents were in effect. We agree with the board that the administration’s approval of Cullinan’s remediation plan did not evidence an intent to allow one-on-one meetings between Cullinan and the student-athletes. Whether Cullinan’s meeting with Thompson on December 16 qualified as a situation requiring the presence of another adult is another question.

The July 2 directive required

acute individual student-athlete corrections ... [to be] [d]one away from the group setting or directed to the group as a whole [or][d]one in the presence of an assistant coach or in the presence of a student’s counselor or parent.

The athletic director testified at the board hearing that he had discussed the meaning of this requirement with Cullinan, and Cul-linan understood what it meant, i.e., that he must not have one-on-one meetings with his student-athletes. The board credited this evidence and rejected Cullinan’s version of the matter, based on his demeanor at the hearing. Additionally, the board credited Thompson’s testimony that the meeting was intimidating. We give deference to the board’s credibility findings. The board in its ruling stated it “specifically finds” that the December 16 event was an “acute individual correction” in violation of the July 2 directive. Even if that were not so, the board concluded, the incident “was intimidating and in violation of his earlier multiple warnings.”

We need not decide whether Cullinan violated the July 2 directive. Contrary to the decision of the adjudicator and the reviewing courts, our detailed analysis of the record in this case shows that Culli-nan’s termination did not rise or fall on whether the December 16 hallway incident violated the July 2 directive. Whether or not the December 16 incident was alone sufficient to constitute just cause, it was certainly enough to trigger the termination proceeding and open the door to the board’s consideration of Cullinan’s failure to remediate the problems that have followed him throughout his career in the Ames district. See Randall, 528 N.W.2d at 590.

Next, Cullinan attacks the board’s reliance on the parents’ complaints contained in the “Parents vs. Cullinan” packet. Cul-linan argues these complaints lack merit because they are based on their sons’ lack of playing time. He characterized the complaints as a parents’ “conspiracy.” The board rejected this argument, concluding that the parents’ complaints about playing time, while considered, did not affect the termination decision. We agree with the board. First, Alex Thompson’s complaint, which triggered the termination process, had nothing to do with playing time. Thompson was, in fact, a starter on the basketball team and a college recruit. Further, an examination of the parents’ complaint letters reveal that, while playing time was mentioned, their primary complaint involved Cullinan’s demeanor toward students and the damage it was doing to the basketball program. Also, some of the letters were from parents whose sons had already graduated and were therefore not concerned with playing time. The parents of one former player stated:

Kyle’s experience on the Ames High basketball team remains perhaps the darkest point in his life and one which he finds difficult to talk about. The most significant thing he took away from it was a vow never to be put down again.
To this day, we are amazed and saddened that this situation has been allowed to continue.... Now, in talking to parents of current players, we are further saddened in the knowledge that young people continued to suffer. After all of these years, still no one wants to listen to this despicable situation or do anything about it. We are ashamed that this could continue [to] happen in the Ames schools.

Other letters from parents of former players expressed the same complaints: intimidation, derogatory treatment, and profanity. Tim Taylor, the assistant superintendent and personnel director, testified that most of the parents’ concerns

reflects ] upon such things as intimidation, the use of profanity, effects upon student athletes’ self-esteem, lack of team building and that there were concerns that the program was on shaky ground because kids were not having fun and not interested in coming out for basketball.

In response to the question of whether it was a playing-time issue, Taylor replied, “not at all.” The superintendent pointed out that Cullman’s failure to remediate the problems the administration had notified him of presented a significant concern. He testified:

In my opinion this is repetitive behavior that began as early as 1998, and we’ve been dealing with it ever since. I believe another factor that comes into play was I actually was surprised to know too at how widespread the discontent amongst the parents of the athletes was at that time. It has continued. I’m also extremely concerned about whether or not the kids are really enjoying the basketball experience.

Further, the superintendent emphasized that the students themselves took the highly unusual step of meeting with the athletic director to express their concerns about a lack of excitement on the part of the players, which was attributed to Culli-nan’s coaching. This was the consensus of the administration’s concerns expressed by two athletic directors, the principal, the assistant superintendent, and the superintendent. Clearly, the overriding concern of the parents and the administration was not playing time, but rather “what was happening to our students.”

Cullinan also contends that Alex Thompson’s complaints about the December 16 hallway incident were motivated by his desire to deflect attention from an incident at the winter formal involving Thompson’s date’s consumption of alcohol. The board found that Thompson reported the December 16 incident to the administration well before the winter formal, and the two incidents were not connected. We agree. There is simply no evidence in the record suggesting Thompson would lodge a complaint against his coach merely to create a diversion.

When we consider the entire record, we conclude the superintendent established just cause by a preponderance of the competent evidence.

The adjudicator (but not the reviewing courts) also reversed the board’s, order on the ground it was “unreasonable and a clearly unwarranted exercise of discretion.” Because we have concluded that the termination was proper on just-cause grounds, it follows that the decision was not invalid as unreasonable or an abuse of the board’s discretion. See DeShon v. Bettendorf Cmty. Sch. Dist., 284 N.W.2d 329, 332 (Iowa 1979) (“As we find just cause for termination, it follows that the nonrenewal of petitioner’s contract was not arbitrary or an abuse of discretion.”).

We vacate the decision of the court of appeals, reverse the judgment of the district court, and remand for a district court order affirming the decision of the board.

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