author: NEUMAN, Justice.

text:
    JOHN DEERE INSURANCE COMPANY, Appellee, v. DE SMET INSURANCE COMPANY OF SOUTH DAKOTA, Appellant, and Milwaukee Guardian Insurance, Inc., Appellee.
    No. 01-0488.
    Supreme Court of Iowa.
    Sept. 5, 2002.

      Michael W. Ellwanger of Rawlings, Nie-land, Probasco, Killinger, Ellwanger, Jacobs & Mohrhauser, L.L.P., Sioux City, for appellant.
    Alan E. Fredregill of Heidman, Redmond, Fredregill, Patterson, Plaza, Dyks-tra & Prahl, L.L.P., Sioux City, for appel-lee John Deere Insurance Company.
    Daniel L. Hartnett of Crary, Huff, Ink-ster, Sheehan, Ringgenberg, Hartnett, Storm <& Jensen, P.C., Sioux City, for ap-pellee Milwaukee Guardian Insurance, Inc.
   NEUMAN, Justice.

This appeal and two cross-appeals challenge the judgment entered by the district court in an action to declare the coverage obligations of three insurance companies following an automobile collision. The principal question is whether an “insured contract” was created between two of the defendants in the underlying litigation so as to alter application of the customary “other insurance” clauses contained in each policy. We conclude the “insured contract” provision applies, making two of the insurers “co-primary” carriers and requiring a prorated distribution of available coverage pursuant to their “other insurance” clauses. The third insurer’s obligation for coverage is strictly excess, as found by the district court. We therefore reverse and remand on appeal, reverse on one cross-appeal, and affirm on the other.

The facts giving rise to this controversy are largely undisputed. Pedersen Machine, Inc., is in the business of selling farm implements and delivering them to its customers. Rick Ackland, a Pedersen Machine employee, was delivering a disk-ripper to a customer when the equipment, which was wider than the roadway, swung over the centerline and struck a car driven by Linda Degen. At the time of the collision, Ackland was towing the equipment with a one-ton pickup owned by one of Pedersen Machine’s other employees, Donald Hubert.

Hubert’s pick-up was being used by Pedersen Machine on a trial basis because Hubert was interested in selling it and Pedersen Machine’s owner, Randy Bak, thought it would fit nicely into the company’s fleet of towing vehicles but wanted to try it out first. Before borrowing the truck, Bak had checked with Pedersen Machine’s insurer, John Deere Insurance Company (Deere), to be sure that a non-owned vehicle would be “covered” for deliveries. He was assured by a Deere representative that it would be and so advised Hubert.

Degen and her husband sued Pedersen Machine, Hubert, and Ackland for damages sustained in the collision. Deere took up the defense on behalf of Pedersen Machine. Hubert’s personal auto liability carrier, De Smet Insurance Company of South Dakota (De Smet), defended both Hubert (owner of the pick-up) and Ackland (the pick-up’s driver). Ackland also carried motor vehicle insurance with Milwaukee Guardian Insurance Company. Deere and De Smet eventually settled the case with Degen for $110,000. Each insurer paid $55,000 toward the settlement without prejudice to either company’s right to seek reimbursement from the other. Each advanced its own defense costs.

Deere then commenced a declaratory judgment action to recover its share of the settlement and defense costs from De Smet. Following trial, the district court determined that neither Deere nor De Smet was entitled to further relief from the other. This appeal by De Smet and cross-appeals by Deere and Milwaukee Guardian followed.

I. Issues on Appeal and Cross-Appeal.

De Smet contends the district court erred when it failed to recognize that the Deere policy, with a combined single limit of $500,000, provides primary coverage for all claims made in the case. Its argument rests largely on the contention that the agreement between Hubert and Pedersen Machine concerning coverage on the pickup constituted an “insured contract” which, under the Deere policy, transformed the coverage available from excess to primary.

Deere contends on cross-appeal that the district court correctly rejected De Smet’s “insured contract” theory but wrongly apportioned fault between the underlying defendants and should have assessed De Smet all of the defense costs. Milwaukee Guardian, whose coverage is indisputably excess to the other policies, asserts on its cross-appeal that, if Deere prevails, its liability is limited to a pro rata share of settlement proceeds paid in excess of De Smet’s $100,000 limits of liability.

Our analysis of these competing arguments rests on the language used, and the obligations thereby created, by the insuring agreements at issue. Truck Ins. Exch. v. Maryland Cas. Co., 167 N.W.2d 163, 164 (Iowa 1969). We therefore turn to a review of the policies before us.

II. Insurance Provisions.

The “covered auto” under the De Smet policy is Hubert’s one-ton pickup. The insuring agreement under the De Smet policy provides coverage for Hubert, as the named insured, as well as Ackland (“[a]ny person using ‘your covered auto’ ”) and Pedersen Machine under the following paragraph:

For “your covered auto,” any ... organization but only with respect to legal responsibility for acts or omissions of a person for whom coverage is afforded under this Part.

All agree this provision applies because Ackland was Pedersen Machine’s employee and drove Hubert’s vehicle in the course of his employment. Thus Pedersen Machine was vicariously liable for Ack-land’s conduct under the doctrine of re-spondeat superior.

The “other insurance” clause of the De Smet policy states:

If there is other applicable liability insurance, we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits. However, any insurance we provide for a vehicle you do not own shall be excess over any other collectible insurance.

As already mentioned, De Smet’s liability limit under the policy is $100,000.

That brings us to the Deere policy. Pedersen Machine is the named insured (“you”) under this general liability policy covering its business. The “WHO IS AN INSURED” section of the Deere policy states:

Anyone else is an “insured” while using with your permission a covered “auto” you own ... or borrow except:
(1) The owner ... from whom you hire or borrow a covered “auto.”

(Emphasis added.) The record is unclear whether the declarations page of the Deere policy listed Hubert’s truck as a “covered auto.” But the parties seem to agree that Ackland, as a person using Hubert’s borrowed vehicle with Pedersen Machine’s permission, was an insured under the Deere policy.

Deere’s policy also contains an exclusion for “[liability assumed under any contract or agreement,” subject to the following exception:'

[T]his exclusion does not apply to liability for damages:
a.Assumed in a contract or agreement that is an “insured contract” provided the “bodily injury” or “property damage” occurs subsequent to the execution of the contract or agreement; or
b. That the “insured” would have in the absence of the contract or agreement.

An “insured contract” is defined under the policy as

[t]hat part of any other contract or agreement pertaining to your business (including an indemnification of a municipality in connection with work performed for a municipality) under which you assume the tort liability of another to pay for “bodily injury” or “property damage” to a third party or organization. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement.

Deere’s “other insurance” clause states, in pertinent part:

a. For any covered “auto” you own, this Coverage Form provides primary insurance. For any covered “auto” you don’t own, the insurance provided by this Coverage Form is excess over any other collectible insurance ....
c. Regardless of the provisions of paragraph a. above, this Coverage Form’s Liability Coverage is primary for any liability assumed under an “insured contract.”

(Emphasis added.)

Finally, Ackland’s personal auto policy with Milwaukee Guardian provides $100,000 liability coverage for him, as the named insured, when using “a car.” Pertinent here is Milwaukee Guardian’s “other insurance” clause:

If there is other applicable auto liability insurance on a loss covered by this Part, we will pay our proportionate share as our limits of liability bear to the total of all applicable liability limits. Any insurance afforded under this Part for a vehicle you do not own, however, is excess over any other applicable auto liability insurance.
III. Analysis.
A. Insured contract. We begin by reiterating the coverage that seems undisputed under the language contained in the pertinent policies: First, the De Smet policy provides coverage for all three defendants in the underlying lawsuit to the limit of its liability of $100,000. Second, Milwaukee Guardian’s coverage is excess over any other applicable insurance because its insured, Ackland, did not own the vehicle in the collision. Third, Deere’s policy insures Pedersen Machine and Ackland, its employee, for liability incurred while driving a borrowed vehicle. And, fourth, Hubert is not an “insured” under the Deere policy because he is the owner of a borrowed vehicle.

The question is whether, and to what extent, Pedersen Machine’s agreement with Hubert regarding liability and insurance coverage on the borrowed auto brings into play Deere’s “insured contract” provision. At the outset we note that the first mention of “insured contract” is found in an exception to an exclusion. Excluded under the policy is any liability assumed by an insured under a contract or agreement unless the contract or agreement meets three criteria: (1) it pertains to the insured’s business, (2) by reason of the agreement, the insured has assumed another’s tort liability to a third party and, (3) the agreement involves “tort liability,” meaning “liability that would be imposed by law in the absence of any contract or agreement.” The provision is important to resolution of this controversy because, unless it applies, Deere’s coverage for an accident involving a non-owned vehicle would be excess, not primary. Deere’s “other insurance” clause makes plain that its coverage is primary, not excess, “for any liability assumed under an ‘insured contract,’ ” regardless of whether the auto used by the insured is owned or non-owned.

We turn, then, to the factual record made in the district court. Randy Bak, an owner and manager of Pedersen Machine, testified about the company’s interest in buying Hubert’s truck conditioned on delaying the purchase until Hubert secured a replacement vehicle. The men agreed that, in the meantime, Pedersen Machine would “try out” the truck as part of its fleet. He testified that both men were concerned about liability and insurance issues while the truck was being used for Pedersen Machine deliveries. Bak, in his words, “wanted to ensure that we were covered through our John Deere insurance by using it.” So he called an insurance company representative who assured him that Pedersen Machine was “covered” and so advised Hubert. Further questioning about the agreement on coverage and liability issues revealed this exchange with Bak:

Q. Do you remember the specifics? A. Basically just what I said, that I called John Deere Insurance and that we were covered.
Q. Okay. Did you want to assure him that he didn’t have to have any concerns about liability while you were using the vehicle ? A. Yes. That would be, you know, the purpose for my call.
Q. And did you assure him that he would not have any liability while you folks were using the vehicle? A. No specific terms. I don’t believe that was stated in those terms. The discussion was I’m sure fairly short. My main concern was that Pedersen Machine’s insurance was in effect.
Q. Okay. And did you assume that while you folks were operating his vehicle you would have the liability if anything happened ? A. Yes, I assumed that.
Q. And that your insurance would cover it ? A. Yes.
Q. And you communicated that to him ? A. Yes.

(Emphasis added.) Cross-examination by Deere’s counsel revealed that Bak did not recall the name of the Deere representative with whom he spoke, nor was there any discussion about whose insurance, as between Hubert and Pedersen Machine, would be primary or excess.

Hubert, the only other witness, testified similarly. He recalled that Bak agreed to find out about insurance and “who was going to be liable” for the pickup while being used by Pedersen Machine. His testimony continued as follows:

As of who he called, I don’t know. But when he came back out [of his office], then he told me that as long as the John Deere employee was driving the pickup carrying out Pedersen Machine duties, Pedersen Machine was going to be liable for it.
Q. Are you satisfied with that? A. Yes, then I was satisfied.
Q. And based upon that, did you allow Pedersen Machine to use your vehicle in the business? A. Yes.

Based on this record, the district court recognized the existence of an oral agreement between Pedersen Machine and Hubert. The court found the agreement insufficient, however, to meet the definition of “insured contract” under the Deere policy. First, it found no connection between the agreement and Pedersen Machine’s business, a critical element of the “insured contract” exception. Second, it concluded the agreement was “defective in its vagueness on a critical term,” that is, whether Deere’s coverage would be primary or excess to De Smet’s. Finally, the court believed the agreement did not meet the common-law definition of “insured contract,” that is, an agreement “to indemnify or hold another harmless for an obligation not otherwise imposed by law.” Smithway Motor Xpress v. Liberty Mut., 484 N.W.2d 192, 196 (Iowa 1992) (quoting Haugan v. Home Indemnity Co., 86 S.D. 406, 197 N.W.2d 18, 23 (1972)).

Although we are ordinarily bound by a trial court’s factual findings in a law action, see Iowa R.App. P. 6.4, we are frankly at a loss to reconcile these trial court findings with the record before us. As even Deere seems to concede, the agreement reached between Hubert and Bak clearly pertained to Pedersen Machine’s business. The district court’s observation that “test driving employee’s vehicles was not a normal part of [Pedersen Machine’s] business” wholly misses the point of the transaction. Plainly Pederson Machine’s agreement to assume Hubert’s liability while using his truck in its business fits the common meaning of the phrase “pertaining to your business” found in the definition of “insured contract” under the Deere policy. See LeMars Mut. Ins. Co. v. Joffer, 574 N.W.2d 303, 307 (Iowa 1998) (undefined policy words given ordinary meaning). The record" contains no basis for a contrary finding.

Where, as here, neither party offers extrinsic evidence about the meaning of an insurance policy’s language, the construction of the policy and the interpretation of its terms are matters of law for this court to decide. Kalell v. Mut. Fire & Auto. Ins. Co., 471 N.W.2d 865, 867 (Iowa 1991). Contrary to the district court’s second finding, the Deere policy’s definition of “insured contract” does not, by its terms, require specificity regarding excess or primary coverages before an agreement by an insured to assume another’s tort liability will be covered. It is true, as the district court found and Deere asserts on appeal, that the law should not favor policy interpretations that permit insureds to “willy-nilly” expand coverage. But the policy language here "speaks for itself and makes no mention of the limitation imposed by the district court. It is not a court’s prerogative, under the guise of construction or interpretation, to insert coverage limitations the company could have, but did not, include.- Cairns v. Grinnell Mut. Reins. Co., 398 N.W.2d 821, 824 (Iowa 1987). In other words, the fact that Hubert and Bak did not discuss — or expressly include in their agreement — excess or primary coverages is essentially irrelevant to application of the “insured contract” clause of this policy.

That brings us to the heart of the case and a question that has not previously been addressed squarely in this jurisdiction: Does an “insured contract” include an agreement to assume another’s tort liability even where the liability would otherwise be imposed by law? The answer, in short, is that the insurance company is its own lexicographer and can define “insured contract” as it chooses.

It is true, as Deere contends in support of the district court’s ruling, that the concept of “insured contract” generally contemplates an agreement to undertake liability “which did not exist prior to the assumption.” Lewis v. Hamilton, 652 So.2d 1327, 1330 (La.1995); see generally Douglas R. Richmond and Darren S. Black, Expanding Liability Coverage: Insured Contracts and Additional Insureds, 44 Drake L.Rev. 781, 784 (1996) [hereinafter Richmond & Black]. In Lewis, for example, the court held that an employment relationship between a school board and a teacher, which would ordinarily give rise to vicarious tort liability, would not constitute an “insured contract” so as to provide primary, instead of excess, coverage when a teacher — driving’her own vehicle — caused an accident while in the course and scope of her employment. Lewis, 652 So.2d at 1330. The court reasoned that such a broad construction of the parties’ employment relationship, without more, would lead to primary coverage by the employer’s insurer in every case, whether or not the facts showed a separate assumption of liability. That would render superfluous the policy’s excess provisions for non-owned vehicles. Id.; accord Smithway Motor Xpress, 484 N.W.2d at 196. See also Christiansen v. Holiday Rent-A-Car, 845 P.2d 1316, 1320 (Utah Ct.App.1992) (mere status as sublessor insufficient to satisfy “insured agreement” exclusion; sublessor must have assumed liability under agreement with insured to trigger primary coverage under “insured agreement” clause).

The critical inquiry in any case, however, is whether the agreement at issue “fall[s] within the specific policy definition” of “insured contract.” Richmond & Black, at 783. Here, the “insured contract” definition in the Deere policy places no limits on whether the tort liability allegedly assumed would or would not rest with the insured as a matter of law. The only question posed by the policy language is whether (1) an agreement was reached, (2) pertaining to the business, (3) by which the insured (Pedersen Machine) assumed the tort liability of another for bodily injury or property damage sustained by a third party. The record undeniably supports such an agreement here and, in the absence of limiting language in its policy, Deere is bound thereby. As a result, Deere’s coverage under the policy, which would normally be excess, becomes primary. The district court’s contrary interpretation of the policy must be reversed.

B. Co-primary insurers. We conclude from our analysis that the policies issued by both De Smet and Deere provide primary liability coverage for Ackland’s collision with Degen. Milwaukee Guardian’s policy is clearly excess. As noted, De Smet and Deere settled Degen’s claim for $110,000. Each contributed $55,000 to the settlement. The limits of liability on the De Smet policy are $100,000; the limits on the Deere business auto liability policy are $500,000. De Smet asserts on appeal that Deere, having sufficient limits to cover the entire loss, should bear the entire loss. In the alternative, De Smet asks the court to apportion the parties’ contribution to the settlement in accordance with their “other insurance” clauses.

De Smet’s alternative argument is the correct one. When two insurance companies provide insurance on the same loss, we look to their policy language to determine their respective insurance obligations. Truck Ins. Exch., 167 N.W.2d at 164. Here each company’s policy calls for a pro-rata sharing of liability coverage in proportion to the total coverage available under both policies. Such a pro-rata distribution is in keeping with the general rule applicable when two insurance companies provide coverage on the same loss. Westfield Ins. Co. v. Econ. Fire & Cas. Co., 623 N.W.2d 871, 878 (Iowa 2001); see Ill. Nat’l Ins. Co. v. Farm Bureau Mut. Ins. Co., 578 N.W.2d 670, 673 (Iowa 1998) (affirming court’s earlier rejection of “closer to the risk” doctrine in favor of pro-rata distribution rule). The parties concede on appeal that the policies furnish no basis for the district court’s allocation of liability and costs in proportion to alleged fault among the defendants inter se. See Truck Ins. Exch., 167 N.W.2d at 164 (respective obligations turn on policy language, not “arbitrary rule or circumstance”).

C. Defense costs. Deere’s claim on cross-appeal that De Smet should have been assessed all the defense costs is answered by our holding in Aid Insurance Co. v. United Fire & Casualty, Co., 445 N.W.2d 767 (Iowa 1989). Applying the pro rata distribution rule discussed above, we ordered a proportional division of liability and defense costs. Aid Ins. Co., 445 N.W.2d at 771. In this case, however, Deere need not reimburse De Smet for any defense costs previously advanced because De Smet has not urged such a claim on appeal. It has merely asserted that, in the event this court finds both insurers to be primary, “[e]ach would pay their own defense costs.” We therefore affirm the district court’s decision to deny further relief to either party on this point.

IV. Summary.

We reverse on De Smet’s appeal, and Deere’s cross-appeal, and remand to the district court for entry of a corrected judgment in accordance with this opinion. On remand, the district court must apportion the parties’ joint liability in keeping with the pro-rata distribution formula of the parties’ “other insurance” clauses. Under those identical clauses, each insurer’s share shall be determined by comparing its limit of insurance to the total limits of all insurance available, adjusted for the sums previously advanced by way of settlement. The case is affirmed on Milwaukee Guardian’s cross-appeal. Costs on appeal shall be assessed equally to De Smet and Deere.

REVERSED AND REMANDED ON APPEAL; REVERSED IN PART AND AFFIRMED IN PART ON CROSS-APPEALS.


source: Caselaw Access Project

author: CADY, Justice.

license: Public Domain

text:
    LOCATE.PLUS.COM, INC. d/b/a Worldwide Information, Inc., Appellant, v. IOWA DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 01-1411.
    Supreme Court of Iowa.
    Sept. 5, 2002.

      Brian L. Wirt of Davis, Brown, Koehn, Shors & Roberts, P.C., Des Moines, for appellant.
    Thomas J. Miller, Attorney General, David A. Ferree, Special Assistant Attorney General, and Carolyn J. Olson, Assistant Attorney General, for appellee.
   CADY, Justice.

The primary issue we confront in this appeal is whether Iowa Code section 321.11 (2001) and 18 U.S.C. § 2721(b) (2001) permit the Iowa Department of Transportation to disclose personal information pertaining to motor vehicle drivers to a private business that reformats the information onto computer disks for sale. The Department denied access to the information, and the district court affirmed the decision in its review. On our review, we affirm.

I. Background Facts and Proceedings.

Locate.Plus.Com, Inc. is a private corporation that does business throughout the United States as Worldwide Information, Inc. It is also licensed as a private investigation agency in Massachusetts, where its principal place of business is located. The Department of Transportation maintains records on all motor vehicles and drivers in Iowa, including the personal information disclosed by drivers in the process of obtaining a driver’s license and registering a motor vehicle.

Worldwide sells motor vehicle and driver’s license information to law enforcement agencies and other entities and persons who utilize the information in the course of their work. Worldwide obtains the data and information from state motor vehicle records and formats it onto computer disks in such a manner that the information pertaining to a particular vehicle or driver can be quickly and conveniently searched and retrieved by such means as name, address, date of birth, license plate number, partial license identification number, or color, model, or year of vehicle. The disks are used by many state and local law enforcement agencies around Iowa and the rest of the country. They are recognized to be a valuable law enforcement tool.

Worldwide purportedly limits the sale of the disks to users who are authorized by state and federal law to have access to the information. Furthermore, the disks are encoded with various levels of security to prevent use by unauthorized users. Worldwide also requires each customer to designate Worldwide as its agent and maintains records of each purchaser.

Prior to 1999, Worldwide requested and received limited motor vehicle information from the Iowa Department of Transportation, which it formatted onto disks. In 1999, Worldwide requested additional personal driver’s records to improve the utility of the disks for the users. The Department refused to provide the personal driver and vehicle records to Worldwide. The Department maintained Worldwide was not entitled to records containing personal driver information under state and federal law.

Worldwide sought judicial review of the decision by the Department to deny access to the personal information. The district court affirmed the decision of the Department, and Worldwide appealed.

On appeal Worldwide argues it is entitled to the personal information for two reasons. It claims it is entitled to disclosure of the information as an agent of the authorized users of the information and in its own right as an authorized user under the statute governing disclosure.

II. Scope of Review.

Our review of agency action is for errors at law. Bernau v. Iowa Dep’t of Transp., 580 N.W.2d 757, 763 (Iowa 1998). We review the district court decision by applying the standards of the Administrative Procedure Act to the agency action to determine if our conclusions are the same reached by the district court. See Heartland Express, Inc. v. Terry, 631 N.W.2d 260, 265 (Iowa 2001).

Worldwide initially argues the district court erred in its review of the decision by the Department by refusing to apply the 1999 amendments to the Administrative Procedure Act. The district court determined the amendments did not apply because they became effective after the agency action was taken. See Iowa Code § 17A.19(8)(6).

Our legislature amended section 17A.19 to describe specific standards and rules of judicial review of agency action. See Arthur Earl Bonfield, Amendments to Iowa Administrative Procedure Act, Report on Selected Provisions to Iowa State Bar Association and Iowa State Government, at 59 (1998) [hereinafter Bonfield]. One of the standards now articulated under the statute requires a reviewing court to reverse, modify, or correct agency action if it was based on “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.” Iowa Code § 17A.19(10)(c). The amendments were effective for agency action commenced after July 1, 1999. Worldwide argues the agency action in this case was commenced after that date, and the district court erred in refusing to apply section 17A.19(10)(e).

Although the record reveals that the decision made by the Department to deny access to the personal information was made after the effective date of section 17A.19(10)(c), there is no indication the district court failed to apply the proper standard of review. See id. § 17A.2(2) (defining “agency action”). The district court applied the standards governing its role in the interpretation of statutes that we have articulated in our cases, and we believe those standards are substantially the same as the standards now framed by our legislature.

Our legislature did not amend the judicial review provisions of the Administrative Procedure Act to increase the intensity of judicial review beyond that originally contemplated by the act, but to ensure that courts actually follow the level of review consistent with the act. Bonfield at 59. Thus, the amendments did not actually change the existing principles of law applicable to judicial review, but were enacted to provide greater specificity. Id. at 60. Generally, the amendments achieve this goal by

Stating explicitly the exact circumstances in which the District Court is or is not required to give deference to an agency’s view of a matter, and by filling in with express language some of the legal principles applicable to the scope of review that are not dealt with by the language of the current IAPA.

Id.

The specific standards for courts to follow in reviewing agency actions are now contained in section 17A.19(8)-(12). The fourteen lettered paragraphs of section 17A.19(10) detail the specific reviewing standards for courts to follow under the Act and describe each ground under which the court may grant relief in agency action. Id. at 61. Paragraph (c) of subsection 10 addresses the standard governing the interpretation of a statute that Worldwide claims the district court failed to apply.

Although section 17A.19(10)(c) is not substantially different from our existing judicial principles concerning statutory interpretation in judicial review proceedings, the new legislative standard appears to combine two approaches that have emerged from our cases addressing the interpretation of statutes. Id. at 61-62. We have repeatedly held that the interpretation of statutes is a legal question for courts, not for agencies. Uni-United Facility v. Iowa PERB, 545 N.W.2d 274, 277 (Iowa 1996) (quoting Norland v. Iowa Dep’t of Job Serv., 412 N.W.2d 904, 908 (Iowa 1987)). Consequently, we give only limited deference to the interpretation by an agency. Id. On the other hand, we have, at times, given greater deference to some agency interpretations. See PanDa Eng’g v. Eng’g & Land Surveying Examining Bd., 621 N.W.2d 196, 198 (Iowa 2001) (courts give careful consideration to agency determination of question of law in an area of the agency’s expertise); Barker, II v. Iowa Dep’t of Transp., 481 N.W.2d 348, 349 (Iowa 1988) (courts recognize the expertise of an agency in reviewing an agency rule and grants a reasonable range of informed discretion); Bonfield at 62 (noting our cases have given deference to agency interpretation of broad vague statutory terms). The new legislative standard is “meant to explain the difference between those two coexisting approaches to the judicial review of agency statutory interpretation found in Iowa cases.” Bon-field at 62.

The new standard for interpreting statutes merely confirms and clarifies that interpretation is normally a judicial function, except when the legislature has delegated the discretionary authority to the agency. Iowa Code § 17A.19(10)(c); Bon-field at 62. Thus, courts normally review an issue of statutory interpretation independent of an agency’s interpretation. Bonfield at 62. However, when the legislature has “clearly” delegated the authority to interpret a statute to an agency, courts may reverse that interpretation only if it is arbitrary, capricious, unreasonable, or an abuse of discretion. Id.

There is no argument made by Worldwide that our legislature granted the Department discretion to interpret any statute relevant to this case. Clearly, it is for the courts, not the Department, to interpret section 321.11 and, in turn, 18 U.S.C. § 2721. This was the standard applied by the district court. Thus, the district court did not apply the incorrect reviewing standard. Moreover, our own review of the district court decision is to consider whether the conclusions reached by the district court are the same conclusions we reach, and we apply all the relevant statutory standards to the agency action to make this determination. Accordingly, any review by the district court that failed to recognize the specific standards under section 17A.19 did not create error for the purposes of our review.

III. Access to Personal Information.

A. Overview.

Many state and federal statutes limit or prohibit access to records maintained by government. See generally 76 C.J.S. Records § 74, at 149-151 (1994). Congress added to this growing list of statutes in 1994 by enacting the Driver’s Privacy Protection Act (DPPA). 18 U.S.C. §§ 2721-2725 (1994 & Supp.2001). This Act generally regulates the authority of state motor vehicle departments to disclose personal information maintained in their records. DeVere v. Attorney Gen., 146 N.H. 762, 781 A.2d 24, 26 (2001).

Congress enacted the Act largely in response to the mounting public safety concerns over the easy access by stalkers and other criminals of personal information maintained by state motor vehicle departments. Congress also sought to curb the common practice by many states of selling information in motor vehicle records to businesses, marketers, and individuals. Reno v. Condon, 528 U.S. 141, 143-44, 120 S.Ct. 666, 668, 145 L.Ed.2d 587, 591 (2000).

The federal act generally restricts states from disclosing personal information in a driver’s motor vehicle record to any person or entity without the driver’s affirmative consent. Id. at 144-45, 120 S.Ct. at 669, 145 L.Ed.2d at 592 (citing 18 U.S.C. § 2721, as amended). Thus, the general ban imposed on the disclosure of personal information does not apply if a driver consents to the release of the data. Id. The Act defines the restricted personal information two ways. First, it defines personal information to mean “information that identifies an individual, including an individual’s photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information....” See 18 U.S.C. § 2725(3). It then defines “highly restricted personal information,” to mean an individual’s photograph, social security number, or medical or disability information. See id. § 2725(4).

Despite the general prohibition against disclosure of personal information contained in motor vehicle records, Congress understood that there are legitimate reasons for the dissemination of such information. Thus, the Act carves out exceptions for both mandatory and permissive disclosure. First, states must disclose personal information for use in carrying out the provisions of certain federal statutes. See id. § 2721(b). Second, states are given discretionary authority to disclose personal information for a number of purposes.

The DPPA lists eleven categories of reasons or purposes for the nonconsensual discretionary disclosure of information. Id. § 2721(b)(l)-(10), (14); see also Maginnis, 51 S.C. L.Rev. at 809. These categories are: For use “by any government agency” or by “any private person or entity acting on behalf of a Federal, State, or local agency in carrying out its functions,” § 2721(b)(1); for use in connection with car safety, car theft, and promotion of driver’s safety, § 2721(b)(2); for use by a business to verify personal information submitted to it and to prevent fraud or to pursue legal remedies if the information submitted to the business is inaccurate, § 2721(b)(3); in connection with court, agency, or self-regulatory proceedings,' § 2721(b)(4); for research purposes so long as the information is not further disclosed, § 2721(b)(5); for use by insurers, § 2721(b)(6); to notify motor vehicle owners that their vehicle has been towed or impounded, § 2721(b)(7); for use by licensed private investigators for the purposes permitted under the DPPA, § 2721(b)(8); for use by an employer to obtain or verify information, § 2721(b)(9); in connection with private toll transportation services, § 2721(b)(10); and for any state authorized purpose relating to the operation of a motor vehicle or public safety, § 2721(b)(14). The Act also lists three categories or reasons for disclosure based on expressed consent of the person to whom the information pertains. 18 U.S.C. § 2721(b)(U)-(13). States may disclose personal information if the use falls within one of the fourteen categories, and may disclose “highly restricted personal information” only for uses permitted in 18 U.S.C. § 2721(b)(1), (b)(4), (b)(6), and (b)(9). Id. § 2721(a)(1).

The DPPA also permits the limited resale or redisclosure of personal information. Id. § 2721(c). Thus, the disclosure restrictions of the Act apply not only to state government, but also apply to persons or entities who have obtained the information from motor vehicle departments. See Reno, 528 U.S. at 146, 120 S.Ct. at 669, 145 L.Ed.2d at 592-93. Generally, an “authorized recipient” of a driver’s personal information may “resell or redisclose” the information only for a permissible purpose. 18 U.S.C. § 2721(c). There are substantial fines and penalties imposed for state agencies or private persons who violate the provisions of the Act, in addition to liability in civil proceedings. See id. § 2723.

Following in the footsteps of the DPPA, our legislature amended section 321.11 to provide that records of the Department of Transportation are open to public inspection except “those made confidential and not permitted to be open” under the DPPA. Iowa Code § 321.11(1) (as amended). The statute declares that “personal information shall not be disclosed to a requestor, except as provided in 18 U.S.C. § 2721, unless the person whose personal information is requested” has expressly consented. Iowa Code § 321.11(2). Personal information is defined under section 321.11(2) to mean:

[I]nformation that identifies a person, including a person’s photograph, social security number, driver’s license number, name, address, telephone number, and medical or disability information, but does not include information on vehicular accidents, driving violations, and driver’s status or a person’s zip code.

This definition is nearly identical to the definition under the DPPA. Yet, unlike the DPPA, the- statute does not distinguish between personal information and highly restricted personal information. It does, however, limit the disclosure of a person’s photograph to specific persons or agencies. Id. § 321.11(4). The statute further prohibits the release of personal information, with limited exceptions, when disclosure of the information is requested by the presentation of a registration plate number. Id. § 321.11(3).

B. Disclosure as an Authorized Use.

Worldwide centers on the manner the DPPA permits disclosure of personal information to support its claim to access of the information. Under each category, disclosure is ultimately permitted based on the use of the information. Thus, Worldwide argues that its use falls within the various categories because the reformatting of the information onto disks facilitates the usefulness of the information, and it only sells its computer disk to those who would be permissible users of the information under one of the authorized categories of use. Worldwide asserts this satisfies the purposes behind the DPPA because its use of the information not only assists those who are properly authorized to utilize the information, but the restrictions on its consumer base also protects the privacy interest sought to be maintained by Congress.

Before we turn to examine Worldwide’s claims in light of the relevant statutes, it is important to recognize that our goal in construing statutes is to ascertain the legislative intent. Perkins v. Madison County Livestock & Fair Ass’n, 613 N.W.2d 264, 269 (Iowa 2000). This is done by first focusing on the language used by the legislature. Id. In doing so, we consider the statute in its entirety and interpret its provisions in relationship to the whole. State v. Carpenter, 616 N.W.2d 540, 542 (Iowa 2000). This provides us the best opportunity to discern the interpretation and construction that best effects the purpose of the statute. See State v. Iowa Dist. CL, 620 N.W.2d 271, 273 (Iowa 2000).

The language of the DPPA as a whole makes it plain that Congress and, in turn, our legislature, sought to limit access to personal information in state motor vehicle records by both protecting citizens from the improper use of such information, while allowing access for legitimate purposes or uses. At the same time, it imposed a gatekeeping function on the state departments of motor vehicles to exercise discretion to disclose personal information when used for the purposes described in subsection (b). Thus, disclosure essentially depends on the use sought for the information, and the states are charged with the responsibility to ensure that disclosure is limited to those circumstances where Congress determined that the use for the information trumps the competing privacy interest. Yet, we do not read the statute to permit disclosure in the manner asserted by Worldwide.

Our review of the disclosure requirements of 18 U.S.C. § 2721(b) reveals some of the categories of permissible uses identify a specific user. See § 2721(b)(1) (use by government agency or private person); § 2721(b)(3) (use by legitimate business); § 2721(b)(6) (use by insurer); § 2721(b)(8) (use by private investigative agency); § 2721(b)(9) (use by employer); § 2721(b)(13) (use by any requester with written consent). Other categories solely consider the manner of use. See § 2721(b)(2) (use in connection with motor vehicle safety, prevention of motor vehicle theft, and promotion of driver’s safety); § 2721(b)(4) (use in connection with court and agency proceedings); § 2721(b)(5) (use in research activities); § 2721(b)(7) (use in providing notice to owners that their vehicle has been towed or impounded); § 2721(b)(10) (use in connection with private toll transportation services); § 2721(b)(ll) (for any use when consent is obtained); § 2721(b)(12) (for bulk distribution of surveys, marketing or solicitations when consent obtained); and § 2721(b)(14) (any state authorized purpose pertaining to the operation of a motor vehicle or public safety). Yet, even the permissible users of nonconsensual information are limited in the manner the information may be used. See § 2721(b)(1) (for use by a government agency in carrying out its functions); § 2721(b)(3) (use by business to verify or to obtain information); § 2721(b)(6) (use by insurer in connection with claims investigation); § 2721(b)(8) (use by private investigator for any permitted purpose); § 2721(b)(9) (use by employer to obtain or verify information); § 2721(b)(13) (use by requester if based on written consent). Thus, for example, a government agency could not receive personal information under § 2721(b)(1) if the information was being used for a private purpose. See DeVere, 781 A.2d at 29. Similarly, a private entity could not obtain personal information if used for a private purpose or if the entity was otherwise not acting on behalf of a government agency in carrying out its functions. See 18 U.S.C. § 2721(b)(1). Additionally, a licensed private investigator could not receive personal information under § 2721(b)(8) if the information was not being used for one of the permitted purposes. Id. § 2721(b)(8). In fact, a user is permitted access to information only when the information will be used for the permitted purpose, subject only to two exceptions. The Act imposes no restrictions on the type of use when the “requester” of the information has obtained consent of the individual to whom the information pertains. Id. § 2721(b)(13). Likewise, any type of use will support disclosure when “in response to requests” the State previously had “obtained the express consent of the person” to whom the information pertains. Id. § 2721(b)(ll).

We think this approach taken by Congress to the dissemination of personal information in motor vehicle records contemplates that the person or entity requesting disclosure of the personal information also be the person or entity that will use the information for the statutory purpose. Thus, nonconsensual disclosure of information is 'permitted only for approved uses, and disclosure is not permitted if the requester is not seeking to use the information for the statutory purpose. The statute does not permit disclosure to a nonuser, who only seeks information to redisclose it for use under a permitted purpose. Redisclosure of the information is allowed only for a permitted purpose and can only occur if the information was initially disclosed by the state to “an authorized recipient.” Id. § 2721(c). Clearly, any other interpretation would render the statute impractical, and essentially render the state incapable of performing its gatekeeping function under the statute. The important task of protecting individual privacy interests recognized by Congress would be undermined by permitting a requester to determine the eligibility to receive the information. Thus, the claimed restrictions on Worldwide’s customer base do not justify disclosure under the Act. Worldwide must itself be an authorized user.

Worldwide argues that its process of placing the information onto disks for authorized users to use is itself a use of the information for a statutory purpose. Worldwide emphasizes that its disks benefit authorized users, such as law enforcement agencies, by allowing them to quickly and efficiently utilize the information.

We understand how the computerization of records benefits legitimate users of the information, but we think Congress would have specifically identified reformatting information as an authorized use if it intended to permit disclosure of the information for that purpose. Congress provided a long list of uses but failed to include the use engaged in by Worldwide. Generally, the express mention of one thing in a statute implies the exclusion of others. Callender v. Skiles, 591 N.W.2d 182, 186 (Iowa 1999). Thus, when a legislative body delineates exceptions, it is presumed that no others were created or intended. Elliott v. Iowa Dep’t of Pub. Safety, 374 N.W.2d 670, 672 (Iowa 1985). Clearly, Congress did not provide a specific category of use for businesses like Worldwide. Instead, we think Congress envisioned that the categories of use relate to the actual use of the information that directly serves the permitted purpose and involve those entities that carry out such purposes.

We recognize, as well, that the disks marketed by Worldwide do not serve any of the categories of purposes in any manner until the disks are actually sold. Thus, the actual and specific use of the information by Worldwide does not fit into any permitted purpose under the statute until resale. Yet, resale or redisclosure to authorized users is not the test for disclosure by the state, and redisclosure to an authorized recipient alone does not satisfy the test of disclosure. See 18 U.S.C. § 2721(c). Worldwide cannot utilize the use of another person or entity to support disclosure.

Notwithstanding, Worldwide argues that it, at least, is entitled to personal information for distribution to government agencies under § 2721(b)(1) and for distribution to private investigators under § 2721(b)(8). Subsection (b)(1) permits disclosure:

For use by any government agency, including any court or law enforcement agency, in carrying out its functions, or any private person or entity acting on behalf of a Federal, State, or local agency in carrying out its functions.

Worldwide asserts that it is “acting on behalf of a Federal, State, or local agency in carrying out its functions” by reformatting the information onto disks for use by various government agencies.

A review of the evidence in this case reveals Worldwide is not acting on behalf of any government agency in carrying out its functions by reformatting the information onto disks. Worldwide is a private business that computerizes information that can relate to a government function in a general way, but it does not act as a government agency and does not act for a government agency. It sells and markets its disks to a vast array of entities, including lawyers, private investigators, insurance companies, and others. Clearly, it acts for itself and does not carry out a function of government. A private entity does not act for government, and carry out government functions, by manufacturing a product used by government. Thus, Worldwide qualifies as a private entity under the language of § 2721(b)(1), but does not use the information for the permitted purpose that would enable the Department to exercise its discretion to disclose the information.

For the same reason, Worldwide does not fall within the discretionary disclosure category for private investigators. Although Worldwide is a licensed private investigator, its use of the information does not fit within any permitted purpose as required under 18 U.S.C. § 2721(b)(8).

We conclude the use of the information by Worldwide does not support disclosure. The purpose for which Worldwide seeks the information does not fall within any purpose delineated in 18 U.S.C. § 2721(b).

C. Disclosure as an Agent.

Worldwide next asserts that it is an agent of its customers and if the customer is authorized to receive the information under the statute, it is authorized to receive the information as an agent of the customer.

It is not necessary for us to determine if Congress or our legislature intended the information to be disclosed under an agency theory. Clearly, the relationship between Worldwide and its customers falls far short of an agency relationship. An agency relationship results only when there is an understanding between the parties that creates a fiduciary relationship under which the fiduciary is subject to the directions of the principal and acts on ae-. count of the principal. Benson v. Webster, 593 N.W.2d 126, 130 (Iowa 1999). Worldwide is not subject to control of its customers and does not act on account of its customers. The relationship, plain and simple, is one of seller and buyer, and Worldwide cannot artificially create an agency relationship by designating the relationship as an agency in its request forms. See Ward v. Mgmt. Analysis Co. Employee Disability Benefit Plan, 135 F.3d 1276, 1284 (9th Cir.1998) (existence of agency relationship is not governed by a party’s stipulation).

IV. Conclusion.

We conclude section 321.11 and 18 U.S.C. § 2721(b) do not permit disclosure of personal information to Worldwide. We affirm the decision of the district court.

AFFIRMED.

      . Worldwide also argued the district court failed to apply the statutory standards of review under sections 17A.19(1 l)(n) and (b). This subsection was "intended to further clarify the appropriate application by the courts, when they review the lawfulness of agency action, of the more discreet standards of review contained in subsection (10).'' Bonfield at 70. Subparagraph (a) makes it clear that the question whether an agency has discretion over a matter is a legal issue, so that courts must decide whether an agency has been delegated such discretion without giving deference to the position of the agency. Id. at 71. Subparagraph (b) provides that courts "should not give any deference” to an agency’s position on matters the court has determined have not been vested to the agency by the legislature. Id. Like section 17A.19(10)(c), these standards reflect the standards in our cases.

      . The watershed event behind the enactment of the DPPA was the 1989 murder of actress Rebecca Schaeffer, who starred in the television series "My Sister Sam." See Maureen Maginnis, Maintaining the Privacy of Personal Information: The DPPA and the Right of Privacy, 51 S.C. L.Rev. 807, 809 (2000) [hereinafter Maginnis]; see also 138 Cong. Rec. H1785-01 (1992); 139 Cong. Rec. E2742-02 (1993). She was shot and killed outside her apartment by a stalker who obtained her unlisted address from the California Department of Motor Vehicles. Maginnis, 51 S.C. L.Rev. at 809. The easy access of personal information by stalkers, domestic abusers, and other criminals was also a major impetus for the enactment of similar state laws. See DeVere v. Attorney Gen., 781 A.2d at 26. Prior to the DPPA, most states granted almost total public access to personal information in motor vehicle records. Maginnis, 51 S.C. L.Rev. at 809. For example, prior to 1996, Iowa Code section 321.11 provided that "[a]ll records of the department [of transportation], other than those declared by law to be confidential for use of the department, shall be open to public inspection....” Iowa Code § 321.11 (1995).

      . The Department is given discretion to disclose personal information when the use of the information falls within one of the categories of uses delineated by Congress in § 2721(b). Worldwide does not claim on appeal that the Department abused its discretionary function in refusing to disclose the requested information, but claims the Department erred by interpreting the statute to exclude its use of the information as a use permitted under the statute. We do not address the discretionaiy function of the Department once a use falls within a statutory category.


author: PER CURIAM.

text:
    STATE of Iowa, Appellee, v. Ollie MITCHELL, Jr., Appellant.
    No. 01-1143.
    Supreme Court of Iowa.
    Sept. 5, 2002.

      Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Paul L. Martin, County Attorney, and Gregg R. Rosenbladt, Assistant County Attorney, for appellee.
   PER CURIAM.

Defendant, Ollie Mitchell, Jr., appeals from a judgment and sentence entered upon his plea of guilty to a charge of possessing contraband in violation of Iowa Code section 719.7(3)(b) (1999). He contends that the facts alleged in the charge against him do not constitute a violation of that statute. The court of appeals agreed with that conclusion but concluded that his failure to file a motion in arrest of judgment precluded him from raising that contention absent a showing of ineffective assistance of counsel. The court of appeals concluded that such a claim could not be made on the record in the present appeal and preserved it for postconviction relief. After reviewing the record and considering the arguments presented, we conclude that defendant has established a basis for vacation of the judgment and sentence on direct appeal. Consequently, we vacate the decision of the court of appeals and also vacate the district court’s judgment and sentence.

The crux of the present dispute arises from the fact that defendant was convicted of conveying contraband to a person confined in a “correctional institution.” At the time, he was in fact confined in a county jail. The court of appeals reviewed the history of Iowa Code sections 719.7(3) and 719.8 and concluded that, because a prior reference to “detention facility” had been removed from section 719.7 and that section 719.8 now provides the basis for a criminal charge of conveying contraband in a “detention facility,” defendant was charged under the wrong statute. This conclusion, with which we agree, is posited on the conclusion that a county jail is a “detention facility” and not a “correctional institution or an institution under the management of the Iowa Department of Corrections.”

After having concluded that the defendant pled guilty to a criminal offense for which guilt was not sustainable under the undisputed facts of the charge, the court of appeals nonetheless determined that this did not necessarily amount to ineffective assistance of counsel. Because defendant had not raised the issue by a motion in arrest of judgment, the court of appeals believed that he must establish an ineffective-assistance-of-counsel claim in order to be relieved of the consequences of his guilty plea.

In making this determination, the court of appeals decision found that there was some ambiguity in the two statutes and that, given a favorable plea disposition (involving the dismissal of other charges), counsel may not have breached an essential duty and the defendant may not have been prejudiced.

We are convinced that our decision in State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999), mandates that under no circumstances may a conviction upon plea of guilty stand if it appears that the facts of the charge do not state a violation of the statute under which the charge is made. We reached that result in Schminkey by declaring this to be a per se example of ineffective assistance of counsel. As the court of appeals decision indicates, it is perhaps unfair to justify the granting of relief to a defendant in all such instances on an ineffective-assistance-of-counsel theory. There will be cases in which the interpretation of the statutes present a close case involving good-faith professional judgment. Nevertheless, we adhere to our view that all such convictions must be vacated.

We also recognized in Schminkey that, when, as here, a guilty plea has no factual basis in the record, two possible remedies exist. These are:

Where the record establishes that the defendant was charged with the wrong crime, we have vacated the judgment of conviction and sentence and remanded for dismissal of the charge. Where, however, it is possible that a factual basis could be shown, it is more appropriate merely to vacate the sentence and remand for further proceedings to give the State an opportunity to establish a factual basis.

Schminkey, 597 N.W.2d at 792 (citations omitted). The present case falls under the first category. Consequently, we vacate the judgment of conviction and sentence and remand for dismissal of the charge. Because this disposition invalidates a plea bargain involving the dismissal of another charge, we order that the State may, if it desires, reinstate that charge ab initio.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AND SENTENCE VACATED AND REMANDED.


author: LARSON, Justice.

text:
    Richard BAILIFF, Appellant, v. ADAMS COUNTY CONFERENCE BOARD, Appellee.
    No. 01-0851.
    Supreme Court of Iowa.
    Sept. 5, 2002.

      Patrick Michael McGraw of Brick, Gentry, Bowers, Swartz, Stoltze, Schuling & Levis, P.C., Des Moines, for appellant.
    Hugh J. Cain of Hopkins & Huebner, P.C., Des Moines, and Jon K. Swanson of Gaudineer, Comito & George, L.L.P., West Des Moines, for appellee.
   LARSON, Justice.

Richard Bailiff, who previously had served as the Adams County assessor, was not reappointed to that position by the Adams County Conference Board. He sued the board and several other parties in state court, then dismissed this suit to file in federal court. The federal court dismissed the federal claims, and Bailiff refiled in state court, claiming breach of contract, wrongful termination, failure to pay wages, retaliatory discharge, estoppel, violation of the Iowa Constitution, and violation of the open meetings law. The district court rejected all of his claims, and he appealed. We affirm.

I. Facts and Prior Proceedings.

Richard Bailiff had served as Adams County assessor for over twenty years when, on February 13, 1997, the Adams County Conference Board “reappointed” Bailiff for a six-year term, to begin January 1, 1998. See Iowa Code § 441.8 (1997). As required by statute, the three voting groups of the conference board caucused separately to discuss the vote, and each group voted as a unit. The three voting units of the conference board are (1) representatives from each of the school boards within the county, (2) members of the board of supervisors, and (3) the mayors of the towns within the county. See Iowa Code § 441.2.

Two mayors were present and voted as members of the mayors’ voting unit. Judy Beckett also participated in the mayors’ voting unit, at the request of the mayor of Prescott, although she was not a mayor herself. The Iowa Administrative Code provides that only members of the conference board may vote on conference board matters, except that a mayor may appoint a mayor pro tem to vote in the mayor’s place. Iowa Admin. Code r. 701 — 71.19(3) (1997). Beckett was not a mayor pro tem.

The mayors’ unit voted in favor of reappointing Bailiff. No record was kept, nor any evidence produced, concerning the breakdown of the votes of the individuals within the mayors’ voting unit. Therefore, it is unknown whether the vote was unanimous or two-to-one in favor of reappointment within the mayors’ voting unit. The school boards’ representatives also voted in favor of Bailiffs reappointment, thereby providing the second vote required for reappointment. The board of supervisors voted against it.

Later, questions arose about the legality of the vote to reappoint Bailiff. On January 20, 1998, members of the conference board reviewed the minutes of the February 13, 1997 meeting. The chairman of the board of supervisors, who was also the chairman of the conference board, called a meeting of the conference board to discuss an error in Bailiffs reappointment.

The conference board met on February 4, 1998, and voted to deny reappointment to Bailiff for the six-year term beginning January 1, 1998. By that time he was one month into his “new term.” Bailiff claims this action was ineffective because, under Iowa Code section 441.8, he had been reappointed for a six-year term and further he had not been notified by the board of their decision not to reappoint him prior to the expiration of his previous term, as required by Iowa Administrative Code rule 701-72.16(441)(1) (requiring ninety-day notice of decision not to reappoint before the end of the assessor’s current term). Bailiff testified that, had such notice been given, he would have sought one of at least twelve other assessor positions that were vacant and available in late 1997 for the following six-year term.

Bailiff first brought this action in the Adams County District Court against the Adams County Conference Board, the county board of supervisors, and each individual member of the two boards, along with the Adams County attorney. Bailiff dismissed that action and filed his case in federal court. The board of supervisors and its individual members filed a motion for partial summary judgment, which the court granted. The federal court held that Bailiff was not validly appointed but was merely a holdover appointee because of the nonmember’s participation in the vote to reappoint him. According to the court, the conference board’s failure to recognize a new six-year term or to give the requisite ninety-day notice of its intent not to reappoint Bailiff did not deprive him of a property right. It dismissed the counts in Bailiffs complaint containing federal, questions and dismissed the remainder of his complaint without prejudice to allow Bailiff to refile his state claims in an Iowa district court.

Bailiff filed a recast petition in Adams County District Court, alleging breach of contract, wrongful termination, failure to pay wages and salary, retaliatory discharge, estoppel, violation of the Due Process Clause of the Iowa Constitution, and violation of Iowa’s open meetings law. The defendants moved for summary judgment on all of his claims. The district court found that the federal court’s previous rulings precluded the Iowa court from addressing the breach of contract, wrongful termination, retaliatory discharge, and violation of the Iowa Constitution, all based on the “law of the case.” The court then dismissed all- of plaintiffs claims except his estoppel claims, which were preserved for trial. On June 1, 2000, Bailiff moved to amend his petition to include a claim of negligence against the- conference board. The district court denied the motion to amend on June 14, 2000.

On January 17, 2001, a trial to' the court began on Bailiffs claims of equitable es-toppel, 'promissory estoppel, and estoppel by acquiescence. The court found in favor of the conference board on all of the claims. Following trial, Bailiff moved to amend his petition, this time to conform to the evidence, again attempting to add the negligence claim that had been previously rejected and a claim based on our wage-payment law, Iowa Code ch. 91A. The court denied the motion to amend, finding that the Iowa Administrative Code does not give rise to a statutory duty for purposes of Bailiffs negligence claim, and the record could not support the chapter 91A claim. Bailiff appealed.

II. The Issues.

Bailiff argues the district court erred in denying his motion to amend his petition, rejecting his estoppel arguments, and rejecting his Iowa due process argument. We take them up in reverse order.

A. The due process argument. The federal district court denied Bailiffs due-process claim under the Federal Constitution on the ground he had no property right in the office of assessor. Bailiff contends he nevertheless has a due-process claim under the Iowa Constitution.

The United States Constitution prohibits states from “depriv[ing] any person of life, liberty, or property, without due process of law....” U.S. Const, amend. XIV, § 1. The due process clause of the Iowa Constitution provides “no person shall be deprived of life, liberty, or property, without due process of law.” Iowa Const, art. 1, § 9.

We have said we will interpret our due process clause consistently with federal courts’ interpretation of the Federal Due Process Clause. See, e.g., Exira Cmty. Sch. Dist. v. State, 512 N.W.2d 787, 792 (Iowa 1994) (“We usually deem the federal and state Due Process and Equal Protection Clauses to be identical in scope and purpose.”).

It is contended by Bailiff that the federal court’s application of the Federal Due Process Clause was erroneous. However, the weakness of his argument in this court, as it was in federal court, is that he did not have a property right to hold the assessor position. To claim a constitutionally protected property right, a person “must ... have a legitimate claim of entitlement” to the position. See Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548, 561 (1972).

Bailiff relies on Iowa Code section 441.8 and the Iowa Administrative Code provisions implementing that section to support his claim that he had a property right in continued occupancy of the assessor’s office. Section 441.8 provides:

The term of office of an assessor appointed under this chapter shall be for six years. Appointments for each succeeding term shall be made in the same manner as the original appointment except that not less than 90 days before the expiration of the term of the assessor the conference board shall hold a meeting to determine whether or not it desires to reappoint the incumbent assessor to a new term.

The issue here is whether Bailiff was “appoint[ed] for [a] succeeding term” under section 441.8 when the conference board met and voted on February 13,1997. The statutory scheme, as supplemented by administrative rules, prescribes a detailed method for appointment and reappointment of assessors. It is unquestioned that Judy Beckett, who voted with the mayors’ group, was not a member of the conference board, because she was neither a mayor nor a mayor pro tem. See Iowa Code § 441.2 (prescribing makeup of conference board). This rendered the vote ineffective. See Iowa Admin. Code r. 701 — 71.19(3) (1997) (“If a member of the conference board is absent from the meeting, the member’s vote may not be cast by another person....”).

We have said an appointment of a public official must be made in strict compliance with the statute or constitution granting the power to appoint. Westphal v. City of Council Bluffs, 275 N.W.2d 439, 443 (Iowa 1979). The “appointment” of Bailiff was not made in strict compliance with the statute and administrative rules and is therefore void. Bailiffs status after December 31, 1997, when his official term expired, was only as a holdover. See id. at 442-43. He therefore had no “right” to the position sufficient to give him a due-process claim. Roth, 408 U.S. at 577, 92 S.Ct. at 2709, 33 L.Ed.2d at 561; Westphal, 275 N.W.2d at 445.

The Westphal case is not discussed or distinguished by Bailiff. Rather, he relies on the statutory and administrative rules applicable to assessors that were not at issue in Westphal. He complains that

Richard Bailiff was not notified in writing or by any other means of the Board’s intent to not reappoint him for this term at least 90 days prior to the expiration of his previous term, and his successor was not named at least 60 days prior to the expiration of his previous term, all in violation of § 441.8 of the Iowa Code, and r. 701 — 72.16(441)(1) of the Iowa Administrative Code.

Iowa Code section 441.8, quoted above, provides that the board shall meet not less than ninety days prior to the expiration of the assessor’s term, but does not require a ninety-day notice of nonappointment as Bailiff suggests. However, our administrative code provides for such notice:

A conference board must decide whether to reappoint an incumbent assessor at least ninety (90) days before the expiration of the incumbent’s term. If the incumbent is not to be reappointed, the conference board shall so notify the incumbent in writing at least ninety (90) days before the expiration of the incumbent’s term.

Iowa Admin. Code r. 701 — 72.16(441)(1).

Nothing in this administrative rule states, or even suggests, that the failure of the conference board to notify an assessor ninety days in advance of his nonappointment will result in his automatic reappointment as Bailiff suggests. In view of the legislature’s detailed procedure for selection of an assessor and the key role played by the assessor in our property tax scheme, it is highly unlikely the legislature envisioned what Bailiff seeks here-a reappointment of a public official by default. We reject the plaintiffs due process argument.

B. The amendment issues. Bailiff attempted to amend his petition to add claims fo.r negligence in a pretrial motion. The court rejected that amendment without stating any reasons. After trial Bailiff attempted to amend his petition to conform to the proof, again raising the negligence issue and raising additional claims under the wage-payment statute, Iowa Code ch. 91A. The court rejected his posttrial motion to amend on the ground there was no evidence at trial to establish the elements of negligence or his chapter 91A claims. Furthermore, the court concluded a private cause of action in negligence could not be implied under any of the statutes or administrative rules.

A ruling on amendments lies in the discretion of the district court, and we will reverse only on a clear abuse of that discretion. Whalen v. Connelly, 545 N.W.2d 284, 293 (Iowa 1996). We find no abuse here; we agree with the district court that granting a motion to amend to conform to the proof would have been ineffectual because the record failed as a matter of law to establish the claims of negligence or a violation of our wage-payment law for the reasons that follow.

On the negligence claim based on the board’s failure to give Bailiff ninety days notice of his nonappointment, administrative rule 701 — 72.16(441)(1), quoted above, does not provide expressly for a private cause of action against the conference board for failure, to give the ninety-day notice. When a statute or rule does not expressly provide a cause of action, we look to see if a cause of action may be implied. See Marcus v. Young, 538 N.W.2d 285, 288 (Iowa 1995). This is the test we have adopted:

1. Is the plaintiff a member of the class for whose benefit the statute was enacted?
2. Is there any indication of legislative intent, explicit or implicit, to either create or deny such a remedy?
3. Would' allowing such a cause of action be consistent with the underlying purpose of the legislation?
4. Would the private cause of action intrude into an area over which the federal government or a state administrative agency holds an exclusive jurisdiction?

Id.

There is no indication of legislative intent ,to create such a remedy. Moreover, as to both the negligence claim and the claim under Iowa Code section 91A.8 for sick leave and vacation pay, we agree with the district court that these amendments would have been futile because the record made at trial was devoid of any testimony or offer of proof of the plaintiffs damages. In other words, there was no evidence on this key element of the claims as to which the pleading could conform. While Bailiff testified there were assessor positions open for which he could have applied, there was no evidence proffered as to the likelihood of Bailiffs being appointed or, if appointed, what his income would have been.

C. The estoppel issue. Bailiff raises issues of equitable estoppel, promissory estoppel, and estoppel by acquiescence. The general rule is that estoppel does not lie against government agencies except in exceptional circumstances. In re Marriage of Griffey, 629 N.W.2d 832, 834 (Iowa 2001) (estoppel doctrine inapplicable to Iowa child support recovery unit); City of Lamoni v. Livingston, 392 N.W.2d 506, 511-12 (Iowa 1986) (doctrine inapplicable to city); 28 Am.Jur.2d Estoppel & Waiver § 138, at 557-58 (2000). A party seeking to invoke the doctrine of estoppel against a public body “bears a heavy burden, particularly when the government acts in a sovereign or governmental role rather than a proprietary role.” Id. § 139, at 558. Here, the conference board was clearly acting in its governmental role in compliance with the statutory duties assigned to it, and we find no exceptional circumstances that would justify an exception to the general rule.

We find no basis for reversal and therefore affirm the ruling of the district court.

AFFIRMED.


author: CARTER, Justice.

text:
    WATERLOO COMMUNITY SCHOOL DISTRICT, Appellee, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Waterloo Education Association, and Waterloo Educational Support Personnel, Appellants.
    No. 01-0494.
    Supreme Court of Iowa.
    Sept. 5, 2002.

      Gerald L. Hammond, Des Moines, for appellants Waterloo Education Association and Waterloo Educational Support Personnel.
    Jan V. Berry, Des Moines, for appellant Public Employment Relations Board.
    Brian L. Gruhn of Gruhn Law Firm, P.C., Cedar Rapids, for appellee.
   CARTER, Justice.

The issues on this appeal involve whether four collective-bargaining proposals presented to the Waterloo Community School District (school district) by two employee labor organizations, Waterloo Education Association and Waterloo Educational Support Personnel, are the subjects of mandatory collective bargaining under Iowa Code section 20.9 (1999). These proposals relate to (1) employee evaluations and the school district’s criteria therefor, (2) the time and place of wage payments, (3) additional compensation for employees teaching more than 300 minutes per day, and (4) a plan for employees to pool their sick leave subject to specified procedures.

The PERB determined that all of the foregoing items were subjects of mandatory collective bargaining. The school district sought judicial review of that determination pursuant to Iowa Code section 17A.19. On that review, the district court concluded that items (3) and (4) above were the subject of mandatory bargaining and items (1) and (2) were not. The school district, PERB, and the two employee labor organizations have all appealed those portions of the district court’s judgment that were adverse to their respective contentions.

After reviewing the record and considering the arguments presented, we conclude that items (2) and (4) above are subjects of mandatory bargaining and that items (1) and (3) are not. Consequently, we reverse the district court’s conclusions as to items (2) and (3) and affirm its conclusions as to items (1) and (4).

I. Scope of Review.

Our review under Iowa Code section 17A.19 requires us to apply the standards for review of agency decisions under that statute and determine whether our conclusions are the same as the district court’s. Foods, Inc. v. Iowa Civil Rights Comm’n, 318 N.W.2d 162, 165 (Iowa 1982); Jackson County Pub. Hosp. v. PERB, 280 N.W.2d 426, 429-30 (Iowa 1979).

II. General Analysis of Collective Bargaining Under Iowa Code Chapter 20.

Iowa Code chapter 20 governs collective bargaining between'public employers and public employees. The negotiable issues are identified in Iowa Code section 20.9, which states:

The public employer and the employee organization shall meet at reasonable times, including meetings reasonably in advance of the public employer’s budget-making process, to negotiate in good faith with respect to wages, hours, vacations, insurance, holidays, leaves of absence, shift differentials, overtime compensation, supplemental pay, seniority, transfer procedures, job classifications, health and safety matters, evaluation procedures, procedures for staff reduction, in-service training and other matters mutually agreed upon.

This section creates two types of negotiable subjects: (1) mandatory subjects of bargaining, and (2) permissive subjects of bargaining. Decatur County v. PERB, 564 N.W.2d 394, 396 (Iowa 1997); City of Fort Dodge v. PERB., 275 N.W.2d 393, 395 (Iowa 1979). Only mandatory subjects of bargaining may proceed through statutory impasse procedures to final arbitration, unless the employer consents. Decatur County, 564 N.W.2d at 396.

In determining whether a proposal is a mandatory subject of bargaining, the court applies a two-step test. Id. First, the proposal must come within the meaning of the subjects listed in section 20.9. Id. Second, the proposal must not be illegal under any other provision of law. Id. The issue in this matter concerns the application of the first step.

Several rules govern the court’s determination of whether a proposal is a mandatory subject of bargaining under section 20.9. Id. The court looks only to the subject matter and not to the merits of the proposal. Id. The subjects listed in section 20.9 are to be construed narrowly and restrictively. Id. at 397. The question is really whether the proposal, “on its face, fits within a definitionally fixed section 20.9 mandatory bargaining subject.” Id. (quoting State v. PERB, 508 N.W.2d 668, 673 (Iowa 1993)). The scope of a disputed proposal is to be determined by examining what the proposal would bind the employer to do if adopted by the arbitrator. Id.

III.The Teacher Evaluation Proposal.

The first proposals to be considered provide:

A. Evaluation Criteria
The employee will be evaluated solely on work performance by comparing the employee’s performance with the employee’s written job description, and by utilizing the mutu-
ally agreed upon evaluation instrument. All evaluations shall be fair and accurate.
B. Procedure
1. c. Specific criteria being used in the evaluation will be given to the employee in writing.
4. Each completed Evaluation Report form shall include an overall assessment of “satisfactory performance” or “unsatisfactory performance.”
C. Procedure
6. Each completed Evaluation Report Form shall include an overall assessment of “satisfactory performance” or “unsatisfactory performance.” An employee who submits a written response to an evaluation under the provisions of paragraph C.(5) preserves the right to object to said evaluation in any disciplinary proceeding initiated by the District which is based in whole or in part on the evaluation.

This court concluded in Arlington Community School District v. Iowa PERB, 392 N.W.2d 495, 500 (Iowa 1986), that both procedural mechanisms and substantive criteria are encompassed within the term “evaluation procedures” in section 20.9. A similar conclusion was reached in Northeast Community School District v. PERB, 408 N.W.2d 46, 49 (Iowa 1987). In deciding the present case, the district court concluded that the inclusion of substantive evaluation criteria as a mandatory bargaining topic has now been curtailed by legislation enacted subsequent to Arlington and Northeast Community.

At the time Aplington and Northeast Community were decided, Iowa Code section 279.14 provided:

The board shall establish evaluation criteria and shall implement evaluation procedures. If an exclusive bargaining representative has been certified, the board shall negotiate in good faith with respect to evaluation procedures pursuant to chapter 20.

A 1998 legislative amendment retained the language, quoted above, as section 279.14(1) and added a new section (2), which reads as follows:

2. The determination of standards of performance expected of school district personnel shall be reserved as an exclusive management right of the school board and shall not be subject to mandatory negotiations under chapter 20. Notwithstanding chapter 20, objections to the procedures, use, or content of an evaluation in a teacher termination proceeding brought before the school board in a hearing held in accordance with section 279.16 or 279.27 shall not be subject to the grievance procedures negotiated in accordance with chapter 20. A school district shall not be obligated to process any evaluation grievance after service of a notice and recommendation to terminate an individual’s continuing teacher contract in accordance with chapter 279.

1998 Iowa Acts ch. 1215, § 41; ch. 1216, § 24.

PERB and the employee labor organizations argue that the district court erred in concluding that the 1998 legislation served to eliminate substantive evaluation criteria from the lists of topics subject to mandatory bargaining. They base this contention on two assertions. First, they argue that, if the legislature had intended to alter this court’s interpretation of section 20.9 relative to “evaluation procedures” and “evaluation criteria,” it would have done so by an amendment to section 20.9 rather than by placing an amendment inconsistent with the court’s interpretation of that statute elsewhere in the Code. Second, they urge that because the first numbered paragraph of section 279.14 refers to “evaluation criteria,” as did this court in the Arlington case, the words “standards of performance” as used in the second numbered paragraph, of section 279.14 must refer to something entirely different from “evaluation criteria.”

A statute must be construed in its entirety. Id. When more than one statute is pertinent to the inquiry, the court considers the statutes together in an attempt to harmonize them. State v. Dann, 591 N.W.2d 635, 638 (Iowa 1999). The court seeks a reasonable interpretation that best effects the statute’s purpose. State v. Iowa Dist. Ct., 572 N.W.2d 587, 588 (Iowa 1997).

The arguments presented fail to persuade us that the district court was wrong in its interpretation of section 279.14(2). It was the district court’s job and now is our job to ascertain what the words “[t]he determination of standards of performance expected of school district personnel shall be reserved as an exclusive management right of the school board and shall not be subject to mandatory negotiations under chapter 20” mean. If they mean what the district court found that they mean it matters not where they are located in the Code or that they express the intended result in words differing from those used elsewhere to describe the same subject matter.

The school district argues persuasively that the exclusive right to determine standards of performance granted it by section 279.14(2) necessarily includes the right to exact compliance with those standards by school district employees. ■ To do that, the school district argues, it must be free to control the evaluation criteria used to evaluate performance. We agree. The scope of a disputed proposal is to be determined by examining what the proposal would bind the employer to do if adopted by the arbitrator. Decatur County, 564 N.W.2d at 397. If bargaining were compelled as to evaluation criteria, this could result in the adoption through the impasse process of evaluation criteria inadequate to enforce the standards that a school district has adopted. It would be manifestly incongruous for the legislature to grant school districts the exclusive right to set standards of performance and not also expect that they could choose the evaluation criteria by which those standards are tested. For this reason, we conclude that the district court was correct in determining that this topic was not a subject of mandatory bargaining.

PERB and the employee organizations argue that, apart from matters of evaluation criteria, there are purely procedural aspects to this proposal that should be the subject of mandatory bargaining. They urge that this is true with respect to the following proposals:

1. That the evaluation be based solely on a comparison between the employee’s performance and that employee’s written job description.
2. That the evaluation shall be pursuant to a mutually agreed evaluation instrument.
3. That specific criteria to be used in the evaluation will be given to the employee in writing.
4. That the evaluation report shall include an overall assessment of satisfactory performance or unsatisfactory performance.
5. That, if an employee submits a written response to an evaluation, that preserves the right to object to that evaluation in any disciplinary proceeding based on the evaluation.

In viewing items 1 through 4 above, we believe that only item 3 deals with a procedural aspect of the evaluation process and thus is a topic of mandatory bargaining. The other items all carry substantive implications for the evaluation process and, if contained in a collective-bargaining agreement, might adversely affect a school district’s right to enforce standards of performance. With respect to item 5, it is procedural and is a valid topic of mandatory bargaining as it applies to disciplinary matters short of a proposed termination. The rights of the parties in regard to proposed termination are governed exclusively by section 279.14(2). Under that statute, the right to challenge an evaluation pursuant to the grievance procedure of a collective-bargaining agreement is foreclosed. The statute does not, however, preclude the right to challenge the grievance in the statutory proceeding before the school board. Any implementation of the proposal designated as item 5 above must be consistent with this distinction.

IV. The Proposal With Respect to Time and Place of Wage Payment.

The second proposal for our consideration provides:

D. Method of Payment 1. Pay Periods
Employees shall be paid on or before the fifteenth (15) of each month. Employees shall receive checks at their regular budding on regular school days.
3. Final Pay
An employee upon resignation or retirement shall have the option of receiving all of his earned, contracted salary less authorized deductions within thirty (30) days after termination. ...

The district court concluded that this proposal was not a subject of mandatory bargaining because it did not fall within the definition of “wages,” which this court adopted in Fort Dodge Community School District v. PERB, 319 N.W.2d 181 (Iowa 1982). The court interpreted that case as limiting mandatory bargaining of wages to those proposals involving “a specific sum or price paid by an employer in return for services rendered by an employee.” We used that language in Fort Dodge Community School District, 319 N.W.2d at 183, to determine whether a particular proposal was a wage issue. We had used similar language in determining the meaning of wages in City of Fort Dodge, 275 N.W.2d at 396.

PERB and the two employee organizations contend that the district court erred in concluding that Fort Dodge Community School District and City of Fort Dodge have limited bargaining as to wages under section 20.9 to only those issues affecting a specified sum to be paid for services rendered. We agree. In the Fort Dodge Community School District case, the issue was whether early retirement benefits proposed by the employees were wages. We held that they were not. Fort Dodge Cmty. Sch. Dist., 319 N.W.2d at 183. In the City of Fort Dodge case, the issue was whether a clothing allowance proposed by the employees constituted wages. We held that it did not. City of Fort Dodge, 275 N.W.2d at 397. In deciding those cases, we were called on to determine whether certain benefits constituted wages as contemplated in section 20.9. In the present case, the district court was called on to determine whether the employee organizations are entitled to bargain as to the time and place of payment of that which is clearly wages within the meaning

of section 20.9. We are convinced that bargaining as to wages may encompass all of the fundamental aspects of wage payment such as the time and place thereof. Accordingly, we reverse the decision of the district court on this issue and uphold the conclusion of PERB that this proposal was a subject of mandatory bargaining.

V. The Extended Workload Proposal.

The next proposal for our consideration provides:

E. Extended Work Year and Extended Work Load
2. Extended Work Load
a. Based on a normal work day, any certificated teacher who teaches more than 300 minutes per day as part of his regular workload shall receive additional compensation. Secondary and intermediate teaching assignments will be five (5) class periods per day. Additional teaching assignments shall be voluntary and ’ compensated at the employer’s hourly proportional per diem rate.

The district court’s finding that this was a subject of mandatory bargaining was founded on its conclusion that the proposal pertained to overtime pay. The school district urges and PERB and the employee organizations concede that the proposal does not pertain to overtime. As we recognized in Iowa City Fire Fighters Association v. PERB, 554 N.W.2d 707, 711 (Iowa 1996), a premium pay proposal does not relate to overtime if “the work to be assigned and the compensation apply to work within a single shift.” For purposes of applying this precedent to the present case, we" believe a teacher’s regular workday is the equivalent of a shift. Consequently, we agree that the present proposal does not' relate to overtime pay.

PERB and the employee organizations contend that, although not overtime pay, this extended workload proposal is a subject of mandatory bargaining under the general topic of wages. The decision in Iowa City Fire Fighters Association also forecloses that contention.

In low a City Fire Fighters Association the employees’ representative submitted a bargaining proposal attempting to regulate the tasks that could be assigned the fire fighters during particular days and times of days. We held that these proposals could not be made the subject of mandatory bargaining because they clearly conflicted with the employer’s exclusive right to control the work as recognized in Iowa Code section 207. Iowa City Fire Fighters Ass’n, 554 N.W.2d at 711. In the same negotiation process, the employees’ organization in Iowa City Fire Fighters Association also submitted a proposal to bargain in regard to premium pay for work performed on certain days' and during certain hours of the day. It argued that this was a wage proposal and did not interfere with the employer’s right to control the work. We rejected that contention and found that the proposal directly and adversely affected the employer’s ability to control the work. Iowa City Fire Fighters Ass’n, 554 N.W.2d at 711. Consequently, we concluded that the proposal could not be made a topic of mandatory bargaining. Id. We reach a similar conclusion as to the premium pay proposal in the present case. It would, in our view, adversely affect the employer’s exclusive right to control the work to be performed. For this reason we reverse the district court’s ruling as to this proposal and declare that it is not a subject of mandatory bargaining.

VI. Proposal for Pooling Sick Leave.

The next proposal for our consideration provides:

H. Sick Leave Bank
1. Establishment
A Sick Leave Bank will be established for the use of employees who choose to participate. Use of Sick Leave Bank days will commence on the first day after accumulated Sick Leave is exhausted and will continue until the end of the year or until the employee becomes eligible for long term disability insurance. The Bank year will be the contract year.
2. Participation
Participation in the Sick Leave Bank will be on a voluntary basis and each participating individual employee’s contribution will be made in the form of one (1) day of Sick Leave from his/her current year’s allocation. The days contributed to the Bank become the property of the Bank and will not be returned to the employee, except under paragraph 5 below.
3. Enrollment
Enrollment will take place during opening workshop but in no case later than September 15 and will entitle the enrolling employee to membership until revoked in writing by the employee.
4. Unused Days in Bank
Assets of the Bank will accumulate, but the maximum carry over is 300 days. The following year’s Bank will consist of the days carried over from the previous year in addition to all contributed days for the year’s participation. The Board will provide the Association with a verification of the Bank’s total number of days for the current year and of the previous year’s usage of Bank days by no later than September 30 of each year.
5. Use of Leave Bank Days
Use of Sick Leave Bank days will be on a daily use basis; e.g., each eligible employee will draw each day until the total Bank Leave days have been exhausted. An eligible employee is one who has timely volunteered for participation in the Sick Leave Bank and who as a result of a long-term disability of at least 10 consecutive days, has exhausted his/her personal Sick Leave without being eligible for long term disability, worker’s compensation, and/or social security disability. Use of Sick Leave Bank shall be limited to those absences where a medical doctor verifies the illness of disability.

The district court concluded the proposal was a subject of mandatory bargaining because it related to “leaves of absence.” Although the school district does not challenge the conclusion that sick leave involves a leave of absence, it urges that the proposal may not be made a subject of mandatory bargaining because it is contrary to law.

Iowa Code section 279.40 refers to the receipt and use of sick leave days by Iowa public school employees. It provides in part:

Public school employees are granted leave of absence for medically related disability with full pay in the following minimum amounts: [ten days to fifteen days increasing annually during the first six years of employment].
The above amounts ... shall be cumulative to at least a total of ninety days. The school board shall, in each instance, require such reasonable evidence as it may desire confirming the necessity for such leave of absence.
Nothing in this section shall be construed as limiting the right of a school board to grant more time than the days herein specified....

Iowa Code § 279.40.

The school district argues that the last sentence of the second paragraph, which we have quoted above, mandates that sick leave is inextricably tied to the individual employee involved and must be based on a health-related leave of absence for that employee that has been verified by the employer. Based on that interpretation, the school district urges that an employee’s sick leave is not assignable to another employee. We are not persuaded by this argument. It is significant, in our view, that section 279.40 does not fix a limit with respect to the sick leave that may be granted to an individual employee. It only prescribes a minimum amount of sick leave. Iowa Code section 279.13 provides that

[contracts with teachers ... shall be in writing and shall state [number of working days and compensation] and any other matters as may be mutually agreed upon.

(Emphasis added.) This statute appears to give broad discretion to school boards in contracting for employee benefits. The bargaining topic that is disputed here is clearly a topic of mandatory bargaining under the category of leaves of absence unless it is contrary to law. We are unable to conclude that the innovative method of sick leave allocation that has been proposed by the employee organization is foreclosed by law. Accordingly, we affirm the district court’s conclusion that this involves a mandatory topic of bargaining.

We have considered all issues presented and conclude that the judgment of the district court must be reversed with respect to the proposal affecting time and place of wage payment and the proposal for allowing additional compensation to employees teaching more than 300 minutes per day. It is affirmed as to the proposals on employee evaluations and the pooling of sick leave.

AFFIRMED IN PART AND REVERSED IN PART.