                 IN THE SUPREME COURT OF IOWA
                           No. 06–1542 & 07–0895

                           Filed November 13, 2009


DAVID BOTSKO, D.M.D.,

      Appellant,

vs.

DAVENPORT CIVIL RIGHTS COMMISSION
and INGELORE NABB,

      Appellees.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Scott County, Bobbi Alpers

(final ruling) and Mark J. Smith (rulings regarding the production of

public records), Judges.



      Petitioner appeals agency action finding sexual harassment,

alleging a violation of procedural due process and an erroneous award of

attorneys’ fees. DECISION OF THE COURT OF APPEALS AFFIRMED
IN PART AND VACATED IN PART; DISTRICT COURT JUDGMENT

AFFIRMED IN PART AND REVERSED IN PART.



      Richard A. Davidson and Thomas D. Waterman of Lane &

Waterman, Davenport, for appellant.



      Judith J. Morrell, Davenport, for appellee commission.

      Dorothy A. O’Brien of Dorothy A. O’Brien, P.L.C., Davenport, for

appellee Nabb.
                                        2

APPEL, Justice.

      Ingelore Nabb filed a harassment complaint with the Davenport

Civil Rights Commission alleging that her employer, dentist David

Botsko,   maintained    a     hostile   work   environment.   Due   to   the

discriminatory behavior, Nabb claimed she was constructively discharged

from her position as a dental assistant. The commission found for Nabb,

awarding her compensatory and emotional distress damages and

attorneys’ fees and costs.      After affirmances at the district court and

court of appeals, we granted further review to consider: (1) whether the

district court erred in affirming the commission’s award of attorneys’ fees

and in awarding Nabb additional attorneys’ fees on appeal, (2) whether

the district court erred in affirming the commission’s holding that it was

authorized to hold closed deliberative sessions, and (3) whether the

district court erred in rejecting Botsko’s procedural due process claim.

      I. Background Facts and Prior Proceedings.

      Nabb filed a complaint alleging that her employer, Botsko,

maintained a hostile work environment and constructively discharged

her from employment.          An administrative law judge (ALJ) originally

issued a proposed decision in favor of Botsko. The ALJ concluded that

while Nabb was subjected to an unpleasant and disagreeable work

environment, she did not establish a claim of harassment based on age,

gender, or national origin.

      The commission reviewed the recommended decision of the ALJ in

two closed-door meetings.       After reviewing the record, the commission

adopted the factual and credibility findings of the ALJ, but came to a

different conclusion with respect to Nabb’s claim of sexual harassment.

The commission determined that the conduct complained of was “based

on sex” and unwelcomed. The commission further concluded that Nabb
                                    3

established a hostile work environment based on sex and that she was

constructively discharged as a result.   The commission awarded Nabb

$5000 in emotional distress damages, $20,000 in compensatory

damages, attorneys’ fees in the amount of $30,081.86, and commission

costs of $2935.70.

      Botsko filed a petition for judicial review.   Among other things,

Botsko challenged the findings of the commission as not supported by

substantial evidence, claimed that the commission did not properly

honor the ALJ’s credibility determinations, asserted that the award of

attorneys’ fees was not authorized by statute, argued that the

commission’s closed-door deliberations were unlawful, and claimed that

his right to procedural due process was violated when the executive

director of the commission, Judith Morrell, assisted the petitioner at the

hearing and then proceeded to advise the commission regarding the

proper disposition of the case.

      After much procedural wrangling, including two remands for

additional fact finding by the commission, the district court upheld the

decision of the commission in its entirety. Botsko appealed.

      We transferred the case to the court of appeals.         The court of

appeals affirmed the district court judgment. We granted further review.

When this court grants further review, it may in its discretion limit its

opinion to selected issues or may address all issues presented on appeal.

In re Marriage of Ricklefs, 726 N.W.2d 359, 361–62 (Iowa 2007). In this

case, we consider only the issues related to attorneys’ fees, the

lawfulness of the closed-door meetings to deliberate, and aspects of

Botsko’s procedural due process challenge.
                                           4

       II. Standard of Review.

       Although the commission is not an agency within the meaning of

the Iowa Administrative Procedure Act (IAPA), Iowa Code chapter 17A

(1999), both parties agreed that this court’s review is determined by the

standards set forth in section 17A.19(8).             The legislature has directed

that a final decision of a municipal civil rights commission is reviewable

to the same extent as a final decision of the Iowa Civil Rights

Commission. See Iowa Code § 216.19; Farmland Foods, Inc. v. Dubuque

Human Rights Comm’n, 672 N.W.2d 733, 740 (Iowa 2003).

       As a result, a reviewing court should reverse the commission’s

decision only when it is “[i]n violation of constitutional or statutory

provisions,” “[a]ffected by other error of law,” or “unsupported by

substantial evidence in the record made before the agency when that

record is viewed as a whole[.]” Iowa Code § 17A.19(8)(a), (e), (f). To the

extent the court is called upon to determine constitutional issues raised

in the administrative proceeding, our review is de novo. Drake Univ. v.

Davis, 769 N.W.2d 176, 181 (Iowa 2009).

       III. Award of Attorneys’ Fees.

       Botsko claims that the district court erred in affirming the

commission’s award of attorneys’ fees to Nabb in the amount of

$30,081.86. 1 Botsko notes that the Davenport Municipal Code, at the

time relevant to these proceedings, 2 did not specifically authorize an

award of attorneys’ fees, but instead provided only that parties may be


       1Following   the district court’s affirmance of the commission’s decision, Nabb
filed an application for appellate attorneys’ fees. Over Botsko’s objection, the district
court awarded Nabb an additional $26,946. Botsko appealed. That appeal has been
consolidated with this case. Our discussion on the attorneys’ fees issue thus applies to
both the initial award of $30,081.86 and the subsequent award of $26,946.

       2We  note that the Davenport Municipal Code has since been amended to allow
for an award of “reasonable attorney fees.” Davenport Mun. Code § 2.58.175(A)(8).
                                     5

represented by counsel in proceedings before the commission “at their

own expense.” Davenport Mun. Code § 2.58.170(F). He asserts that in

the absence of a statutory provision authorizing attorneys’ fees, a party

has no right to recover attorneys’ fees as part of a damages award.

      Nabb conversely argues that Botsko misinterprets the ordinance.

First, she claims the provision authorizing a party to be represented by

counsel “at their own expense” applies solely to administrative hearings

and does not restrict fee-shifting as a form of relief. Second, Nabb points

to other sections of the Davenport ordinance to support her claim for

attorneys’ fees. She notes the ordinance is designed to provide a means

for executing the policies within the Iowa Civil Rights Act. Id. § 2.58.010.

Under the Iowa Civil Rights Act, a party may be awarded “reasonable

attorney fees.”   Iowa Code § 216.15(8)(a)(8).       Nabb concludes that

because the ordinance is designed to provide a means of executing the

policies of the Iowa Civil Rights Act, and the Iowa Civil Rights Act

contains an explicit fee-shifting provision, a similar fee-shifting provision

should be implied as part of the local ordinance.

      We disagree. We have stated that because attorneys’ fee awards

are a derogation of the common law, they “are generally not recoverable

as damages in the absence of a statute or a provision in a written

contract.” Kent v. Employment Appeal Bd., 498 N.W.2d 687, 689 (Iowa

1993). Such statutory authorization must be expressed and “must come

clearly within the terms of the statute.” Thorn v. Kelley, 257 Iowa 719,

726, 134 N.W.2d 545, 548 (1965).

      Our stringent approach to statutory attorneys’ fees is reflected in

Telegraph Herald, Inc. v. City of Dubuque, 297 N.W.2d 529, 536–37 (Iowa

1980), where we held that a statutory provision authorizing an award of

attorneys’ fees related to district court proceedings did not imply that
                                     6

attorneys’ fees on appeal could also be recovered.        Our demanding

approach is consistent with cases in other jurisdictions which reject

awarding statutory attorneys’ fees by implication and require express

language. See Comm’r of Envtl. Prot. v. Mellon, 945 A.2d 464, 470 (Conn.

2008); Vance v. Speakman, 409 A.2d 1307, 1311 (Me. 1979); Holland v.

Wal-Mart Stores, Inc., 1 S.W.3d 91, 95 (Tex. 1999); see also Robert L.

Rossi, Attorneys’ Fees § 6:7, at 6–22 to 6–23 (3d ed. 2002) (noting where

statutory provisions contain no language explicitly mentioning attorneys’

fees, such fees are generally not authorized).

      Iowa Code section 216.19 authorizes a city to adopt its own civil

rights ordinance. Dietz v. Dubuque Human Rights Comm’n, 316 N.W.2d

859, 861 (Iowa 1982) (discussing the municipal authority to establish

civil rights commissions under section 601A.19 now section 216.19).

The relevant question, however, is not whether the state legislature has

authorized a fee-shifting provision in a local ordinance enacted pursuant

to section 216.19.     Instead, the question is whether the ordinance

enacted by the City of Davenport at the time of this proceeding contained

an express provision clearly authorizing an award of attorneys’ fees.

      The local ordinance in this case fails to meet this test. While the

Davenport ordinance declares that it provides a means for executing the

policies within the Iowa Civil Rights Act, such generalized language is not

a substitute for language expressly authorizing the payment of attorneys’

fees to the prevailing party.   While Nabb asserts that important policy

objectives are advanced by awarding attorneys’ fees in civil rights cases,

we will not read into the ordinance a fee-shifting provision when the local

legislative body did not approve one. As a result, Nabb is not entitled to

an award of attorneys’ fees in these proceedings.
                                    7

      IV. Challenge to Closed Meetings.

      Botsko claims that the commission improperly deliberated in

closed meetings. According to Botsko, the commission has no statutory

authority under the Iowa Open Meetings Law, Iowa Code chapter 21, to

conduct its deliberations behind closed doors. Botsko concludes that in

light of the lack of statutory authorization, his due process rights were

violated because the process was fundamentally unfair.         He further

presses the argument by seeking disclosure of the tapes of the “illegal”

closed sessions.

      Nabb counters that the closed sessions were authorized by Iowa

Code section 21.5(1)(f). This section of the Open Meetings Law provides

that closed deliberations may be utilized “[t]o discuss the decision to be

rendered in a contested case conducted according to the provisions of

chapter 17A.” Iowa Code § 21.5(1)(f).

      It is true, of course, that a local civil rights commission is not an

agency under the IAPA and thus the IAPA is not directly applicable. Iowa

Code § 17A.2(1).   The fact that a local civil rights commission is not

explicitly subject to chapter 17A, however, is not determinative on the

issue here. The precise question is whether the proceedings in this case

before the commission were conducted “according to the provisions of

chapter 17A,” even if chapter 17A did not expressly govern the matter.

      One of the common meanings of “accordance” is agreement or

conformity.   Merriam-Webster’s Collegiate Dictionary 7 (10th ed. 2002).

Courts interpreting the phrase “in accordance with” have relied upon this

common definition in a variety of contexts.     See, e.g., Love v. Bd. of

County Comm’rs, 701 P.2d 1293, 1295 (Idaho 1985) (finding the phrase

“in accordance” did not require a zoning ordinance to be an exact copy of

the master plan, but rather required the ordinance to reflect the goals of
                                     8

the plan in light of all the facts and circumstances); Holmgren v. City of

Lincoln, 256 N.W.2d 686, 690 (Neb. 1977) (same); Thomas Group, Inc. v.

Wharton Senior Citizen Hous., Inc., 750 A.2d 743, 748 (N.J. 2000) (finding

that the phrase “in accordance with the contract” in construction lien

statute must be read sensibly and consistent with the statute’s overall

intent and thus requires parties to perform work under the contract in

order to be entitled to a lien, but does not require that a party satisfy all

the contract’s terms and conditions).

      Utilizing this common definition, we determine that section

21.5(1)(f) requires a contested case hearing to be conducted under

procedures consistent with, but not an exact replica of, chapter 17A in

order for its deliberations to meet the open meetings exception. Whether

the commission’s proceedings were conducted “in accordance with”

chapter   17A     must   be   determined   “in   light   of   all   the   relevant

circumstances.” Mathew v. Mathew, 209 N.W.2d 573, 578 (Iowa 1973).

      As noted previously, Iowa Code section 216.19 requires cities to

“maintain an independent local civil rights agency or commission

consistent with commission rules adopted pursuant to chapter 17A.”

Iowa Code § 216.19. Local civil rights commissions cooperate with the

Iowa Civil Rights Commission in the investigation and prosecution of civil

rights actions.     These commissions, therefore, largely pattern their

procedures after the state commission and chapter 17A. For example,

under the Davenport ordinance, a litigant has rights and responsibilities

that are parallel to those provided by the contested case provisions of

chapter 17A, including the right to notice, to counsel, and to an

evidentiary hearing.     Davenport Mun. Code § 2.58.170.            The parties,

moreover, concede that on appeal, the standards of review established by

chapter 17A are applicable.      As a result, we conclude that this local
                                          9

proceeding amounts to “a contested case conducted according to the

provisions of chapter 17A.”         Under Iowa Code section 21.5(1)(f), the

commission acted lawfully when it conducted closed meetings to

deliberate in this matter.

       We next turn to the question of whether the otherwise lawful

closed deliberations violate Botsko’s right to procedural due process of

law.   We conclude statutorily-authorized closed meetings to conduct

deliberations do not violate procedural due process rights.                  Juries,

executive agency boards and commissions, and appellate courts engage

in closed deliberations every day.        The law is fiercely protective of the

deliberative process of multi-member bodies in order to promote candid

and uninhibited discussion which produces the give-and-take that is the

hallmark of effective collective decisionmaking. See Kholeif v. Bd. of Med.

Exam’rs, 497 N.W.2d 804, 806–07 (Iowa 1993) (noting the strong public

policy reasons to avoid inquiry into mental processes of administrative

decisionmakers). We find no procedural due process infirmity as a result

of the closed deliberations in this case.
    V.     Procedural Due Process Challenge Arising from the
Conduct of the Director.
       A.   Introduction.       Botsko also challenges the role of Director

Morrell in this proceeding as violating procedural due process under the

Fourteenth Amendment of the United States Constitution and article I,

section 9 of the Iowa Constitution. 3 He launches a two-pronged attack,

objecting to the presence of Director Morrell during the commission’s

deliberations.      The first challenge goes to Morrell’s role in the

       3While Botsko cites article I, section 9 of the Iowa Constitution, he does not
make an argument that the Iowa due process clause should be interpreted differently
than the Due Process Clause of the Fourteenth Amendment to the United States
Constitution. We therefore assume that the standards of due process are the same
under the state and federal constitutions. State v. Feregrino, 756 N.W.2d 700, 703 n.1
(Iowa 2008).
                                      10

investigation of Nabb’s claim, specifically when she participated in the

initial finding of probable cause. The second challenge goes to Morrell’s

alleged role as an advocate for Nabb at the administrative hearing and in

presenting a joint brief to this court.

      Nabb counters Botsko’s arguments by asserting that a paralegal,

and   not   Morrell   personally,   investigated     the    case   and   made   a

recommendation to Morrell after completing her investigation.                 She

further asserts there was no evidence that Morrell prosecuted the case,

noting that under the ordinance, the duties and power of the director do

not include prosecution. Davenport Mun. Code § 2.58.070.

      She additionally asserts that Botsko failed to show actual bias

sufficient to overcome the presumption of honesty and integrity by

persons who serve as adjudicators.               Nabb argues the undisputed

evidence shows that Morrell had no vote in the deliberative process, did

not tell anyone how to vote, and did not try to influence anyone’s vote.

Nabb finally argues that Morrell participated in the closed sessions solely

to advise the commissioners if they had any questions, to talk with them

about procedures, and to record their votes.

      B.      Analytic    Framework        for    Due      Process   Claims     in

Administrative Proceedings. A party in an administrative proceeding is

entitled to procedural due process. Richardson v. Perales, 402 U.S. 389,

401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842, 852 (1971). The question is

generally not whether a party is entitled to due process, but rather what

process is due in any particular proceeding. Morrissey v. Brewer, 408

U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484, 494 (1972). Due

process always involves, however, a constitutional floor of a “ ‘fair trial in

a fair tribunal.’ ” Withrow v. Larkin, 421 U.S. 35, 46, 95 S. Ct. 1456,
                                     11

1464, 43 L. Ed. 2d 712, 723 (1975) (quoting In re Murchison, 349 U.S.

133, 136, 75 S. Ct. 623, 625, 99 L. Ed. 942, 946 (1955)).

       The key United States Supreme Court case regarding procedural

due process in the context of the conflicting roles of agency personnel is

Withrow v. Larkin. In Withrow, the United States Supreme Court held

that procedural due process is not denied where investigative and

adjudicative functions were both housed within a medical examination

agency. Withrow, 421 U.S. at 47–55, 95 S. Ct. at 1464–68, 43 L. Ed. 2d

at 723–28. The Court generally embraced the notion that due process

required basic fairness in an administrative proceeding and noted that in

some    situations,   such   as   those   involving   pecuniary   interest   or

demonstrated personal bias, “experience teaches that the probability of

actual bias on the part of the judge or decisionmaker is too high to be

constitutionally tolerable.” Id. at 47, 95 S. Ct. at 1464, 43 L. Ed. 2d at

723.

       In contrast to these settings, however, the Court stated that a

combination of investigative and adjudicative functions faces a much

more difficult burden of persuasion.      Id.   When a party challenges on

procedural due process grounds the combination of investigative and

adjudicative processes within an agency,
       [i]t must overcome a presumption of honesty and integrity in
       those serving as adjudicators; and it must convince that,
       under a realistic appraisal of psychological tendencies and
       human weakness, conferring investigative and adjudicative
       powers on the same individuals poses such a risk of actual
       bias or prejudgment that the practice must be forbidden if
       the guarantee of due process is to be adequately
       implemented.
Id. at 47, 95 S. Ct. at 1464, 43 L. Ed. 2d at 723–24.

       The Court furthered observed in Withrow that the variety of

administrative mechanisms in the country will not yield any single
                                       12

organizing principle for procedural due process analysis. Id. at 51, 95

S. Ct. at 1466–67, 43 L. Ed. 2d at 726.            Nonetheless, several of the

principles articulated in Withrow have appeared consistently in the case

law and appear to have general application.

      First,   the   mere   fact    that    investigative,   prosecutorial,   and

adjudicative functions are combined within one agency does not give rise

to a due process violation.        Morongo Band of Mission Indians v. State

Water Res. Control Bd., 199 P.3d 1142, 1146 (Cal. 2009); Pub.

Employees’ Ret. Sys. v. Stamps, 898 So. 2d 664, 678 (Miss. 2005);

Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 847 (Tenn. 2008). Such

combinations inhere in the very nature of the administrative process

before an agency.      Dep’t of Alcoholic Beverage Control v. Alcoholic

Beverage Control Appeals Bd., 145 P.3d 462, 464 (Cal. 2006); State ex rel.

Martin-Erb v. Mo. Comm’n on Human Rights, 77 S.W.3d 600, 610 (Mo.

2002).   In addition, the mere fact that an agency adjudicator has a

supervisory role over agency actors involved in the investigatory or

prosecutorial functions of the agency does not establish a procedural due

process claim. R.A. Holman & Co. v. Sec. & Exch. Comm’n, 366 F.2d 446,

452–53 (2d Cir. 1966).

      Second, consistent with Withrow, there is a consensus in the case

law that even where investigative and adjudicative functions are

combined in a single individual or group of individuals, there is no due

process violation based solely upon the overlapping investigatory and

adjudicatory roles of agency actors. For instance, the mere knowledge or

participation of an adjudicatory fact finder in a preliminary investigation

does not taint the proceedings when there is a later evidentiary hearing

before the agency on the merits of the case.             Fisher v. Iowa Bd. of

Optometry Exam’rs, 510 N.W.2d 873, 877 (Iowa 1994); Wedergren v. Bd.
                                     13

of Dirs., 307 N.W.2d 12, 17 (Iowa 1981). As noted by one appellate court,

state administrators are assumed to be professionals capable of

distinguishing between investigations to determine if a threshold

requirement for commencing the action has been met and the actual

factual adjudication of those actions.     Colquitt v. Rich Twp. High Sch.

Dist. No. 227, 699 N.E.2d 1109, 1114 (Ill. App. Ct. 1998); see also Fisher,

510 N.W.2d at 877.

      In order to prove a procedural due process violation in the context

of a combination of investigative and adjudicative roles, even in a single

individual, the challenging party must bear the difficult burden of

persuasion to overcome the presumption of honesty and integrity in

those serving as adjudicators.      Fisher, 510 N.W.2d at 877, see also

Cronin v. Town of Amesbury, 895 F. Supp. 375, 387 (D. Mass. 1995);

Hartwig v. Bd. of Nursing, 448 N.W.2d 321, 323 (Iowa 1989).

      A more serious problem, however, is posed where the same person

within an agency performs both prosecutorial and adjudicative roles. As

noted by Michael Asimow, a leading authority on administrative law, the

primary purpose of separating prosecutorial from adjudicative functions

is to screen the decisionmaker from those who have a “will to win”—“a

psychological commitment to achieving a particular result because of

involvement on the agency’s team.” Michael Asimow, When the Curtain

Falls: Separation of Functions in the Federal Administrative Agencies, 81

Colum. L. Rev. 759, 773 (1981) [hereinafter Asimow]. Richard J. Pierce,

Jr. in his leading administrative law treatise also observed, “It is difficult

for anyone who has worked long and hard to prove a proposition . . . to

make the kind of dramatic change in psychological perspective necessary

to assess that proposition objectively . . . .”    2 Richard J. Pierce, Jr.,

Administrative Law Treatise § 9.9, at 681 (4th ed. 2002).
                                    14

      The distinction between combining prosecutorial rather than

investigatory roles with adjudication in a single individual has been

recognized by courts. The court in Howitt v. Superior Court, 5 Cal. Rptr.

2d 196 (Ct. App. 1992) observed:
             A different issue is presented, however, where
      advocacy and decision-making roles are combined.             By
      definition, an advocate is a partisan for a particular client or
      point of view. The role is inconsistent with true objectivity, a
      constitutionally necessary characteristic of an adjudicator.
Howitt, 5 Cal. Rptr. 2d at 202. Many of these cases find that such a

combination poses so great a risk that due process has been violated
without a showing of actual prejudice.     See, e.g., Gonzales v. McEuen,

435 F. Supp. 460, 465 (D.C. Cal. 1977); Dorr v. Wyo. Bd. of Certified Pub.

Accountants, 21 P.3d 735, 745 (Wyo. 2001). The ordinary requirement of

actual bias or prejudice in separation of functions challenges does not

apply because the risk of impartiality is thought to be too great when an

advocate with the “will to win” also has a role in the adjudication of the

dispute. Nightlife Partners v. City of Beverly Hills, 133 Cal. Rptr. 2d 234,

246 (Ct. App. 2003). Other cases have finessed the issue of whether the

appearance of impropriety alone is sufficient to result in a due process

violation by finding the presence of actual prejudice. See, e.g., Allen v.

La. State Bd. of Dentistry, 543 So. 2d 908, 915 n.15 (La. 1989).

      At least one case, however, stands for the proposition that while an

attorney who prosecuted charges and then accompanied a board to

deliberate may have acted imprudently, the fact that the counsel cast no

vote and the apparent absence of any substantial prejudice did not

warrant reversal of the adjudication. Weissman v. Bd. of Educ., 547 P.2d

1267, 1276 (Colo. 1976). The Weissman court advised in future cases

that counsel who plays a role as an advocate should not take part in the

deliberations of the board. Id. While some cases may allow one person
                                     15

to combine prosecutorial and adjudicative roles, the context is generally

one where swift decisionmaking is a necessity and the interests at stake

are minimal. See generally Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729,

42 L. Ed. 2d 725 (1975) (allowing principal to mete out student

discipline).

      The contours of procedural due process in an administrative

proceeding, involving the combination of prosecutorial and adjudicative

functions, were explored in depth in Nightlife. In Nightlife, the owner of

an adult cabaret appealed a denial of a regulatory permit by city officials.

Nightlife, 133 Cal. Rptr. 2d at 237–38. An assistant city attorney who

participated in the city’s decision to deny the permit then appeared at the

appeal hearing, where the hearing officer stated that the assistant city

attorney would advise him regarding the appeal. Id. at 238. The court in

Nightlife ruled that the cabaret’s due process rights were violated by the

dual roles of the assistant city attorney. Id. at 239.

      After stating the broad general principles of procedural due

process, the Nightlife court emphasized that due process in the

administrative setting required “the appearance of fairness and the

absence of even a probability of outside influence on the adjudication.”

Id. at 242–43.    In support of its contention that the “appearance of

fairness” implicates due process concerns, the court cited provisions of

the California Administrative Procedure Act, the Federal Administrative

Procedure Act, and other state administrative procedure acts that

provide for the separation of prosecutorial and adjudicatory functions.

Id. at 244–45.

      The Nightlife court recognized that the combination of investigative

and adjudicative functions, standing alone, did not generally create a due

process violation in the absence of some showing of bias. Id. at 243. The
                                      16

court observed, however, that “the same cannot be so readily said when

prosecutorial and adjudicative functions are too closely combined.” Id. at

243–44. In analyzing the combination of prosecutorial and adjudicative

functions, the Nightlife court stated,
      [T]o permit an advocate for one party to act as the legal
      advisor for the decision-maker creates a substantial risk that
      the advice given to the decision-maker will be skewed,
      particularly when the prosecutor serves as the decision-
      maker’s advisor in the same or a related proceeding.
Id. at 245. As a result, the court concluded that it was improper for an

attorney to serve as a partisan advocate and as a legal advisor to the
neutral decision-maker. Id. at 248.

      Even the Nightlife court noted, however, that the mere asking of

questions by an agency lawyer in an administrative hearing did not

amount to partisan activity. Id. at 247. For instance, in 12319 Corp. v.

Business License Commission, 186 Cal. Rptr. 726, 731 (Ct. App. 1982), a

government lawyer in an administrative hearing asked whether a witness

was familiar with a signature and whether the witness could recognize

the signature on a document. The court held that the questioning was

not inconsistent with the role of a neutral advisor taking action to ensure

that the evidence was properly before the commission and did not

amount to adoption of the prosecutorial role.      12319 Corp., 186 Cal.

Rptr. at 731.

      Determining whether an individual’s actions amount to neutral

participation or are prosecutorial, for due process purposes, is not

always clear.   Asimow, 81 Colum. L. Rev. at 776–77.         As noted by

Asimow, while it is possible to take the position that all participation of

any kind in prosecution raises the problem, a strict approach is

oversimplified and could be quite costly. Id. at 776. “Agency technical
                                    17

staff is a limited and valuable resource” that should be available as a

source of expertise to agency decisionmakers. Id.

      As a result, Asimow questions whether the mere giving of technical

advice to an adversary is sufficient participation in the prosecution to

preclude an individual from later participation in the adjudication as an

advisor. Id.; see also Dittus v. N.D. Dep’t of Transp., 502 N.W.2d 100,

103–04 (N.D. 1993) (offering of foundational exhibits in proceeding

insufficient basis to preclude agency official from participating in

adjudication). Additionally, the mere approval of the form of a draft order

by a staffer who was an advocate may not be sufficient to trigger a

procedural due process violation. Richview Nursing Home v. Minn. Dep’t

of Pub. Welfare, 354 N.W.2d 445, 460 (Minn. Ct. App. 1984).

      A number of cases also hold that, like a judge in a judicial

proceeding, neutral staff members of an agency may ask questions in an

adjudicative proceeding in order to clarify the record without being

regarded as a partisan advocate and violating due process if they

subsequently participate in adjudicatory functions.      12319 Corp., 186

Cal. Rptr. at 731.   In addition, the mere filing of a complaint by an

executive director is considered ministerial in nature and does not give

rise to a due process issue in the event the executive director participates

in the final agency adjudication.    Eaves v. Bd. of Med. Exam’rs, 467

N.W.2d 234, 236–37 (Iowa 1991); see also Finer Foods Sales Co. v. Block,

708 F.2d 774, 779–80 (D.C. Cir. 1983).

      Finally, the involvement of agency staff in judicial proceedings after

the agency has reached a final decision is not generally regarded as

raising procedural due process problems. In this setting, the advocate is

defending a final agency action that is unlikely to produce the same

psychological commitment as when an agency staffer seeks to persuade
                                     18

the agency on the merits.     Asimow, 81 Colum. L. Rev. at 777; Ceres

Marine Terminal, Inc. v. Md. Port Admin., No. 94-01, 1999 WL 287321, *6–

*12 (F.M.C. April 16, 1999) (finding participation in briefing before

appellate court defending agency action not prosecution that engenders a

“will to win” sufficient to raise procedural due process infirmity when

combined with other agency roles).

      On the other hand, as in Nightlife, when a staff member becomes

involved in the plaintiffs’ litigation strategy or assumes a personal

commitment to a particular result, he or she becomes an adversary with

the “will to win.”   Asimow, 81 Colum. L. Rev. at 778.          In Withrow

terminology, when an agency staffer functions as an advocate, experience

teaches that the probability of actual bias is too high to allow the staffer

to also participate in the adjudicative process. See, e.g., Gonzales, 435

F. Supp. at 464–65 (finding procedural due process violation without

showing of bias where school district attorneys acted as prosecutors and

then as legal advisors to the board in school expulsion matter); Schmidt

v. Indep. Sch. Dist. No. 1, Aitkin, 349 N.W.2d 563, 568 (Minn. Ct. App.

1984) (finding procedural due process violation where counsel presented

case for terminating teacher, advised board chairman on legal rulings,

and drafted and presented the findings of fact and conclusions of law).

As is often the case with respect to procedural due process, the question

is one of line-drawing and balancing. See generally Mathews v. Eldridge,

424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).

      C.   Application.    We reject Botsko’s claim that Morrell’s mere

participation in the probable cause finding and the deliberations of the

commission violates due process. The fact that Morrell may have made

an initial finding of probable cause in this matter does not necessarily

give rise to a due process violation if she later participates as an advisor
                                           19

in the commission’s deliberations. Under Withrow, a party who contends

that the participation of an agency staff member in investigatory and

adjudicatory    functions       violated     due     process    must    overcome     a

presumption of honesty and integrity. Withrow, 421 U.S. at 47, 95 S. Ct.

at 1464, 43 L. Ed. 2d at 723–24.                The fact that Morrell had some

involvement in the initial finding of probable cause and later participated

in the deliberations is not sufficient to give rise to a due process violation

in the absence of a demonstration of actual bias.

        Botsko argues, however, that Morrell did not simply participate in

the initial finding of probable cause and the agency’s later deliberations.

Botsko    claims      that   Morrell   was      an   advocate    for   Nabb    at   the

administrative hearing.        Botsko notes that Morrell introduced several

exhibits into the record for jurisdictional purposes. She was also seated

at counsel table with Nabb’s attorney. Botsko further notes that during

the evidentiary presentation, Morrell and Nabb’s counsel engaged in

numerous off-the-record consultations.               Finally, Botsko asserts that

Morrell joined Nabb’s counsel in its brief to this court. The commission

and the district court, however, found that Morrell did not improperly act

as an advocate in the proceedings.

        First, we are not troubled by the fact that Morrell entered several

exhibits into the record for jurisdictional purposes. These actions related

to uncontested matters that simply set the stage for the proceeding.

These    activities    are   the   kind    of    marginal      participation   in   the

administrative process that do not give rise to the “will to win” that would

unduly tilt the playing field when prosecutorial and adjudicatory

functions are combined. Dittus, 502 N.W.2d at 103–04.

        Second, we also are not concerned about Morrell’s participation in

the litigation after the agency made its final determination. Such post-
                                    20

decision defense of agency action does not inject unacceptable risks of

bias into the agency determination. Ceres, No. 94-01, 1999 WL 287321

at *6–*12.

      Of more concern is the fact that Morrell sat at counsel table for the

plaintiff and participated in off-the-record conferences with Nabb’s

private counsel at the close of testimony. While it is true that Morrell did

not ask any questions directly of any witness, on at least one occasion,

after discussions between Morrell and counsel for Nabb, counsel for

Nabb asked additional questions, which led to Botsko’s impeachment.

Morrell did not engage in similar private conferences with counsel for

Botsko.      While the record does not indicate the nature of these

conversations, the ALJ apparently believed that Morrell was participating

in the prosecution of the case, observing at the close of evidence that the

burden of proof was on “Ms. Greve [Nabb’s attorney] or Ms. Morrell.” If

Morrell were a neutral observer, she would have no burden of proof.

      Where it is undisputed that the director of an agency sits at

counsel table with a complainant, confers with that counsel at the close

of the testimony of witnesses, and does not object when the hearing

officer suggests that she, along with counsel for the complainant, bears

the burden of proof, we conclude, as a matter of law, that the director

was engaged in advocacy on behalf of the complainant. That advocacy is

of a sufficient nature to preclude her later participation in the

adjudicatory process in the case under the due process clauses of the

state and federal constitutions. Nightlife, 133 Cal. Rptr. 2d at 248. The

combination of advocacy and adjudicative functions has the appearance

of fundamental unfairness in the administrative process. Id. at 242–43.

Further, because of the risk of injecting bias in the adjudicatory process,

Botsko is not required to show actual prejudice. Id.
                                        21

      The commission, nevertheless, argues that Morrell did not perform

as an advocate in the adjudicative stage of the proceeding.                 The

commission points out that Morrell did nothing more than answer

questions of the commissioners in its closed sessions. Further, affidavits

from various commission members state that they made their findings

independently. These arguments and declarations, however, provide this

court with little comfort. An advocate can accomplish much by simply

answering questions. Indeed, that is what happens in every case where

there are oral arguments before this court, where a skilled advocate will

answer the court’s questions in terms as objective as possible as a means

of convincing the court to adopt a client’s position. We cannot accept the

contention that Morrell, after assisting Nabb as a second-chair advocate,

may retreat into the closed sessions of the agency to “answer questions.”

      D. Remedy. In light of the due process violation, the decision of

the commission must be vacated and the case remanded for further

proceedings.    The commission may avoid the due process violation by

submitting     the   case,   on   the   record   previously   developed,   to   a

disinterested quorum of current commission members. See In the Matter

of Broome County Dep’t of Pub. Transp. v. New York State Div. of Human

Rights, 632 N.Y.S.2d 266, 267 (App. Div. 1995) (calling for remand for

further proceedings before an impartial arbitrator in light of due process

violation). In addition, the commission may explore the possibility under

any applicable cooperation agreement of presenting the case before an

untainted body of the Iowa Civil Rights Commission.             See Iowa Code

§ 216.19(2), (3) (2009).

      VII. Conclusion.

      For the above reasons, the decision of the court of appeals is

affirmed in part and vacated in part and the district court judgment is
                                    22

affirmed in part and reversed in part.        The case is remanded to the

commission for further proceedings consistent with this opinion. Costs

on appeal are taxed to the parties equally.

      DECISION OF THE COURT OF APPEALS AFFIRMED IN PART

AND VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED

IN PART AND REVERSED IN PART.

      All justices concur except Baker, J., who takes no part.
