               IN THE SUPREME COURT OF IOWA
                               No. 06–1368

                          Filed October 9, 2009


IN THE MATTER OF THE COLLEGE COMMUNITY SCHOOL DISTRICT
BOARD OF DIRECTORS’ CONSIDERATION OF THE RECOMMENDED
TERMINATION OF THE TEACHING CONTRACT OF JOHN
GIANFORTE.

JOHN GIANFORTE,

      Appellee,

vs.

RICHARD WHITEHEAD
and COLLEGE COMMUNITY SCHOOL DISTRICT,

      Appellants.



      Appeal from the Iowa District Court for Linn County, Amanda P.

Potterfield, Judge.



      School district and superintendent appeal from district court order

entered in response to report of noncompliance with subpoenas in a

teacher-termination proceeding. REVERSED AND REMANDED.



      Donald C. Hoskins, Marion, for appellant College Community

School District.

      Brian L. Gruhn of Gruhn Law Firm, Cedar Rapids, for appellant

Richard Whitehead.



      Douglas R. Oelschlaeger and Sarah J. Gayer of Shuttleworth &

Ingersoll, P.L.C., Cedar Rapids, for appellee John Gianforte.
                                   2

      David W. Nelmark of Belin Lamson McCormick Zumbach Flynn,

P.C., Des Moines, for amicus curiae Iowa Association of School Boards.
                                        3

CADY, Justice.

        In this appeal from a district court order issued in response to a

report by a school board of noncompliance by witnesses with subpoenas

issued by the board in a teacher-termination proceeding, we are

presented with two issues of prehearing discovery. First, we consider the

use of a subpoena duces tecum by a teacher to obtain documents from

the superintendent of the school district. Second, we consider whether

the district court may order school board members to answer

interrogatories propounded by the teacher to inquire into claims of

prejudice and bias. On our review, we reverse the decision of the district

court and remand the case for further proceedings before the school

board.

        I. Background Facts and Proceedings.

        John Gianforte was a special education teacher employed by the

College Community School District in Cedar Rapids. He taught at Prairie

High School and was the head coach of the boys’ basketball team.

Richard Whitehead is the superintendent of the district.

        On April 17, 2006, Gianforte was notified by Whitehead that he

was making a recommendation to the College Community School District

that his teaching contract be terminated.       The written notice provided

eight    reasons   for   termination,   including   poor   performance   and

inappropriate conduct as a teacher. The reasons did not relate to his

performance as a coach. In addition to the notice, Whitehead provided

Gianforte with a detailed written memorandum prepared by the high

school principal describing the claims of poor teaching performance and

unprofessional conduct.         Among other things, the memorandum

described claims that Gianforte did not maintain an appropriate grading

system, made improper statements to students, and failed to properly
                                      4

develop and implement individual education plans for his special

education students. Whitehead also provided Gianforte with a lengthy

written evaluation prepared by an associate principal describing the

problems and concerns with Gianforte’s teaching performance.            The

evaluation essentially described the teaching performance of Gianforte as

measured against the Iowa teaching standards. The termination was to

be effective at the end of the school year.

      Gianforte responded to the notice and recommendation by

requesting a private hearing before the school board. The hearing was

set for May 10, 2006, but was continued on two occasions at Gianforte’s

request to Tuesday, June 6, 2006. Gianforte and Whitehead were at all

relevant times represented by counsel.

      On June 1, Whitehead furnished Gianforte the documentation he

intended to present to the school board at the hearing, as well as a list of

persons who would address the board in support of the recommendation

to terminate Gianforte. On June 2, Gianforte requested the board issue

a subpoena to Whitehead directing him to produce a host of documents

identified by seventy-five separate categories.    He also requested the

board issue subpoenas for fifty-seven witnesses, including each member

of the school board, to appear at the hearing.

      In the afternoon of June 5, Gianforte furnished Whitehead with the

documents he expected to present at the hearing and his list of

witnesses.   He also requested that Whitehead produce the documents

subject to the subpoena he had requested from the board.          Gianforte

informed Whitehead the documents requested in the subpoena would be

included as documents he expected to present at the hearing.            The

president of the school board issued the subpoenas and the subpoena

duces tecum on June 6.
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         Whitehead objected to the subpoena duces tecum and to the

method used by Gianforte to provide the documentation he expected to

use at the hearing. The school board also objected to the subpoena of its

members. As a result, the hearing was continued, and the matter was

submitted to the district court without evidence offered by either party.

         Many of the requests for documents described in the subpoena

sought documentation dating back five or ten years and included such

general subjects as “all documentation concerning the charges,” as well

as specific subjects such as lists and records of former students and all

individual educational plans prepared by other teachers.         Whitehead

claimed most of the documents were not relevant to the grounds for

termination. He also claimed that compliance with the subpoena duces

tecum would require him to examine thousands, if not tens of thousands,

of documents. The district court directed Whitehead to produce fifty-two

of the seventy-five requests for documents. Essentially, the district court

only quashed the subpoena duces tecum relating to the requests for

documents concerning Gianforte’s performance as a basketball coach.

         The district court also quashed the subpoenas directed to the

members of the board. Notwithstanding, the district court subsequently

directed the board members to submit an answer to an interrogatory

from Gianforte relating to any prior contacts and communications they

had concerning Gianforte’s teaching.

         Whitehead and the board appealed the decision of the district

court.    The appeals were consolidated.    Gianforte was suspended with

pay pending the outcome of the termination proceeding and is not

currently teaching at the high school.

         Whitehead claims on appeal the district court abused its discretion

by enforcing the subpoena duces tecum served on him the day of the
                                     6

scheduled hearing. He claims the subpoena duces tecum was untimely

under the statutory scheme governing termination hearings.         He also

asserts the subpoena duces tecum was untimely because he did not have

a reasonable time to comply with the production of documents. Finally,

he claims the subpoena duces tecum was unduly burdensome.               The

board asserts the district court had no authority to subject its members

to any form of discovery through the use of interrogatories.

      II. Standard of Review.

      The district court intervenes in a teacher-termination proceeding

only to decide questions pertaining to the refusal of witnesses to comply

with a subpoena. Iowa Code § 279.16(3) (2005). Normally, the district

court is given discretion when deciding disputes that arise over the

issuance of administrative subpoenas.         See State ex rel. Miller v.

Publishers Clearing House, Inc., 633 N.W.2d 732, 736 (Iowa 2001); Portz

v. Iowa Bd. of Med. Exam’rs, 563 N.W.2d 592, 592 (Iowa 1997); see also

Bousman v. Iowa Dist. Ct., 630 N.W.2d 789, 796 (Iowa 2001).

Accordingly, as a discovery proceeding legally before the district court, we

review the decision reached for an abuse of discretion.

      An abuse of discretion occurs when “the court exercise[s]
      [its] discretion on grounds or for reasons clearly untenable or
      to an extent clearly unreasonable.” State v. Maghee, 573
      N.W.2d 1, 5 (Iowa 1997). “A ground or reason is untenable
      when it is not supported by substantial evidence or when it
      is based on an erroneous application of the law.” Graber v.
      City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000). In other
      words, a court has no discretion to issue a discovery order
      that lacks factual support or is in contravention of governing
      constitutional or statutory provisions.

Bousman, 630 N.W.2d at 796.

      III. Overview of Statutory Termination Procedure.

      Public school teachers in Iowa work during a school year under a

written contract of employment with the board of directors of the school
                                     7

district. Iowa Code § 279.13(1). The term of the contract can cover the

school year and is automatically renewed for subsequent school years,

except when altered by mutual agreement or terminated by the board.

See id. § 279.13(2).   The termination of a contract by the board is

governed by rules and regulations established by the legislature in

chapter 279 of the Code.          Generally, the process requires the

superintendent of the school district, or a designee, to give the teacher

written notice no later than April 30 of the school year that the

superintendent will recommend to the school board at its next meeting,

held no later than May 15, that the teacher’s contract be terminated at

the end of the current school year.      Id. § 279.15(1).   The termination

notification and recommendation must contain “a short and plain

statement of the reasons” to support just cause for the recommendation.

Id. § 279.15(2).

      Within five days after receipt of the notice, the teacher is permitted

to request a private hearing with the school board. Id. If a request is

made, the hearing must be held within twenty days, but no earlier than

ten days, unless the parties agree to a hearing date outside the statutory

time frame. Id. Prior to the hearing, an “exchange of information” takes

place. Id. At least five days prior to the hearing, the board must furnish

the teacher with any documentation that may be presented at the

hearing, as well as a list of persons who may address the board in

support of the termination recommendation.        Id.   At least three days

before the hearing, the teacher must likewise provide any documentation

the teacher expects to present, together with the names of any persons

who may address the board on behalf of the teacher.               Id.   The

information must be exchanged pursuant to this time line, unless

otherwise agreed by the board and the teacher. Id.
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      The board must hold the hearing in a manner best suited to

“ascertain and conserve the substantial rights of the parties.”            Id.

§ 279.16(4). However, the process and procedure is to be “as summary

as reasonably” possible. Id. The board does not adhere to “technical or

formal rules of procedure” and is not bound by common law or statutory

rules of evidence. Id.

      The evidence at the hearing is limited to the “specific reasons”

stated in the termination notice and recommendation. Id. § 279.16(1).

The superintendent presents evidence and argument on the issues

presented.    Id.   The teacher is also permitted to present evidence and

argument and may cross-examine witnesses. Id. The parties may also

stipulate to evidence. Id.

      The presiding officer of the board is authorized to administer oaths

to witnesses and is required to issue subpoenas for witnesses and for the

production of documents as the board or teacher “may designate.” Id.

§ 279.16(2). If a subpoenaed witness refuses to attend the hearing or if

the witness appears and refuses to testify or produce documents

requested by a subpoena duces tecum, the board must report the matter

to the district court. Id. § 279.16(3). On receipt of the report, the district

court is required to resolve the matter as if it occurred in a proceeding

before the court. Id.

      IV. Production of Documents.

      We first consider the issue of whether or not the district court

abused its discretion by ordering the superintendent to produce the

documents described in fifty-two of the seventy-five categories of

production.    We begin our resolution of this issue by examining the

legislature’s intent with regard to a teacher’s ability to compel discovery

of documents and information prior to the hearing. See Ayers v. Straight,
                                    9

422 N.W.2d 643, 645 (Iowa 1988) (stating that “[i]n interpreting statutes,

our ultimate goal is to ascertain and give effect to the intention of the

legislature”). Our goal is to determine whether the legislature intended a

teacher to obtain documents in the course of a termination proceeding in

the manner pursued by Gianforte.

      The preceding overview of the statutory framework governing the

process of terminating the contract of a teacher reveals the legislature

only provided the teacher with two opportunities to formally obtain

documents and information prior to the hearing.       First, the teacher’s

complete personnel file of employment with the school district, including

all periodic evaluations, must be made available to the teacher during

the proceeding. Iowa Code § 279.15(2). Second, the teacher is entitled to

receive all documentation expected to be presented to the board by the

superintendent at the hearing in support of the recommendation to

terminate the contract. Id. No statutory provision specifically permits

the teacher to discover or obtain other documents prior to the hearing.

      While the documents and information made available under the

statute to a teacher prior to the hearing may generally be adequate for

the teacher to successfully argue against a recommendation of

termination at a private hearing, we have recognized that additional

documents and information may be needed in some cases to enable a

teacher to conduct an adequate defense. See Smith v. Bd. of Educ., 293

N.W.2d 221, 225 (Iowa 1980) (recognizing the legislative purpose of

prehearing disclosure of information described in the statute is to help

facilitate prehearing preparation and enable the parties to better present

their cases).   For example, we have held that the evaluations of other

teachers in the school system may be obtained by a teacher so the board

can compare the performance of the teacher with the performances of
                                          10

other teachers. In re Gillespie, 348 N.W.2d 233, 237 (Iowa 1984). We

have also held that transcripts of students scheduled to testify against

the teacher may be obtained by the teacher to permit the teacher to

challenge the credibility of the students by suggesting the students were

motivated to testify against the teacher due to low grades given to the

students by the teacher. Id. These examples recognize the statute does

not prohibit production of documents that are reasonably necessary for

the teacher’s defense against a recommendation of termination.

       Although the statute does not describe a method for the teacher to

obtain or discover additional documents prior to the hearing, the statute

does allow the teacher to request the board to issue a subpoena to secure

the presence of a witness at the hearing and for the witness to produce

documents designated by the teacher.1                While Gianforte argues the

statutory process to subpoena a witness permits a teacher to request

documents from the superintendent in addition to those described in the

statute, the superintendent generally argues that the legislature could

not have intended for the subpoena process to operate in such a way

because all documents expected to be presented at the hearing are

required to be exchanged under the statute prior to the hearing. At a
minimum, the superintendent argues, the statute does not permit a

teacher to request the issuance of a subpoena for the production of

documents after the three-day deadline for disclosure of documents. The


       1The  statute does not specifically permit a teacher to use the subpoena power of
the board to obtain documents prior to the hearing. Instead, the statute describes the
use of the subpoena as a means to secure the appearance of witnesses at the hearing
and the production of documents by witnesses. See Iowa Code § 279.16(1) (describing
the participants at a hearing, including “witnesses for the parties”); id. § 279.16(2)
(authorizing the board to administer oaths and cause subpoenas to be issued for “such
witnesses” and for the production of documents); id. § 279.16(3) (describing procedure
when a subpoenaed witness “refuses to attend” or “appears and refuses” to produce
documents).
                                     11

superintendent asserts that allowing the teacher to seek additional

documents by subpoena beyond the three-day deadline is inconsistent

with the legislature’s clear language; otherwise, the teacher could easily

circumvent the unequivocally written statutory deadline in any case.

      In Smith, we observed the role of the board and the court in

deciding if evidence not included in the prehearing exchange of

information could nevertheless be accepted at the hearing. 293 N.W.2d

at 225. In doing so, we held the board properly accepted testimony from

a rebuttal witness who was not disclosed in the superintendent’s

prehearing list of witnesses.      Id.     We recognized the exchange-of-

information deadline serves to provide a fair hearing by eliminating

surprise at the hearing and facilitating advance preparation. Yet, we also

observed the deadline should not operate to broadly exclude undisclosed

rebuttal witnesses at the hearing because a party cannot be expected to

disclose information in advance of the hearing that was not known at the

time of the deadline. Id. Thus, we found the legislature only intended

the witness-list requirement to limit testimony presented during a party’s

case in chief, but not rebuttal.     Id.    Clearly, the pretrial disclosure

deadlines   have   meaning   and    may     preclude   the   presentation   of

undisclosed witnesses at the hearing.          However, Smith reveals the

deadlines must be applied consistent with the statutory goals of a fair

and timely hearing.

      The approach we took in Smith in response to undisclosed

witnesses is compatible with allowing a party to present undisclosed

documents not included in the prehearing exchange of information. As

with undisclosed witnesses, undisclosed documents may be accepted at

the hearing when doing so does not offend the purposes of the

requirement for the documents to be exchanged. Accordingly, we reject
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the   superintendent’s        argument       that    the    statutory      exchange-of-

information process precludes a teacher from seeking undisclosed

documents from a superintendent by means of a subpoena.                          Instead,

when the board issues a subpoena to a superintendent to produce

undisclosed documents designated by the teacher, the superintendent is

given the choice to comply with the subpoena or refuse to comply.

Compliance will allow the hearing to proceed as scheduled, yet permit

the superintendent to ask the board to reject the documents if the

purposes of the requirements for pretrial disclosure are adversely

impacted. Refusal to produce the documents transfers the matter to the

district court and will likely delay the hearing until the dispute is

resolved by the court.2

       The district court intervenes in a termination proceeding only when

the subpoenaed witness fails to attend the hearing or, as in this case,

refuses to produce the designated documents.                 Iowa Code § 279.16(3).

When a subpoenaed witness refuses to produce the designated

document, the issue turns to the reasons for the refusal, including

noncompliance with the statutory disclosure deadlines. Consistent with

our approach in Smith, the district court must not only consider a
teacher’s need for the documents and the reasonableness of the request,

but also the ability of the board or the superintendent to timely produce

the documents.         A subpoena for the production of documents not

included in the pretrial exchange of information is compatible with the

          2Nothing in the statute prevents the parties from engaging in voluntary discovery

in a reasonable manner to enable the statute to operate to provide a fair and prompt
private hearing. The process of adjudicating disputes between parties in a fair manner
is best served when the parties voluntarily pursue discovery in a reasonable,
cooperative manner. See Iowa R. Civ. P. 1.517(5) (recognizing requirement of parties in
civil litigation to make a good-faith effort to resolve discovery disputes). This approach
is especially appropriate in teacher-termination proceedings, where the stakes can be
high, but the time to prepare for the hearing is very limited.
                                    13

statutory framework when the documents requested are necessary for

the teacher to defend against the termination recommendation and are

otherwise discoverable, but only if the board or the superintendent can

comply with the subpoena consistent with the statutory goal of a prompt

hearing.

      In this case, the superintendent argues the directive in the

subpoena to produce the seventy-five categories of documents was overly

burdensome. He also argues he was not provided a reasonable time for

compliance. See Iowa R. Civ. P. 1.1701(4)(d)(1) (requiring court to quash

a subpoena failing to allow a reasonable time for compliance).

      In ordering the superintendent to produce the bulk of the

requested documents, the district court focused narrowly on the reasons

the teacher wanted to examine each category of documents and basically

ordered the production of those documents that could potentially be

helpful to the teacher in the preparation of his case.           While the

prehearing production of documents must be consistent with the goal of

providing a teacher with a fair opportunity to challenge the termination

recommendation and present a defense, this goal cannot be pursued to

the exclusion of the other legislative goal of a prompt, informal and

summary hearing. The termination process must not become mired in

discovery expeditions, or otherwise slowed by the parties’ prehearing

conduct, inconsistent with the intended objectives of the legislature.

      We conclude the district court abused its discretion in this case to

order production of documents by failing to balance the legislative

directive for a prompt, informal and summary hearing with the teacher’s

right to a fair hearing. Gianforte clearly failed to show he was attempting

to obtain undisclosed documents while simultaneously respecting the

statutory intent for a prompt, informal, and summary hearing.            Even
                                      14

though some of the requests for documents may have related to relevant

information, the timing and volume of the request, as well as the

inclusion of requests for irrelevant documents, revealed the request was

inconsistent with the statutory timeline for a hearing. This conclusion is

supported by the circumstances presented in this case.

      Gianforte was provided approximately six weeks to prepare for his

hearing. He was timely provided with the documents and information

required under the statute to prepare for the hearing. Yet, he did not

engage in any informal discovery of additional documents during the

course of the proceedings. He made no claim the superintendent refused

to voluntarily produce the specific documents he needed to prepare for

the hearing.

      Instead,    Gianforte   essentially   waited   until   the   eve   of   the

rescheduled hearing to request thousands of additional documents as

part of a broad, sweeping discovery expedition. The production request

left the superintendent with little or no opportunity to timely produce the

documents, to sort through the specific requests with counsel to

determine the nature and scope of the documents requested, or to

formulate objections and other responses. The last minute production

request virtually assured Gianforte of another delay in the hearing.

      In the end, Gianforte effectively hijacked the termination process

and imposed delays unrelated to the need to defend against the

recommendation.      Considering these circumstances, we conclude the

district court abused its discretion to order the production of additional

documents.       The district court should have quashed the subpoena

issued to the superintendent by the presiding officer of the board.

Accordingly, we quash the subpoena and remand the case to the school

board to proceed with a prompt hearing. On remand, the teacher shall
                                     15

not be precluded from requesting a new subpoena for the production of

documents in a manner consistent with this opinion.

      V. Interrogatories to School Board Members.

      We next turn to the issue of whether the district court abused its

discretion by ordering the board members to answer an interrogatory

propounded by the teacher.        The district court is only authorized to

intervene in a teacher termination proceeding when a witness fails to

comply with a subpoena. Iowa Code § 279.16(3). There is no additional

authority for the district court to order a witness to respond to

interrogatories.   See id.   Furthermore, the district court’s authority to

resolve disputes over the refusal of a witness to comply with a subpoena

does not imply authority to order discovery through interrogatories. See

In re Melodie L., 591 N.W.2d 4, 7 (Iowa 1999) (holding that, when a court

exercises judicial authority pursuant to a statute, such authority “must

be expressly provided or exist by plain implication. . . . [The exercised

authority] must be necessary and essential to carry out the purposes of

the statute.” (citations omitted)). Accordingly, the district court abused

its discretion to resolve witness disputes by ordering discovery not

permitted under the statute. See Bousman, 630 N.W.2d at 796. Yet, this

conclusion does not mean a teacher in a termination proceeding is not

protected from claims of bias or prejudice.

      Our law establishes a presumption that board members acting as

adjudicators are objective. Bd. of Dirs. v. Justmann, 476 N.W.2d 335,

340 (Iowa 1991). This general presumption of objectivity prevails against

assertions of bias and prejudice absent “direct, compelling evidence to

the contrary.” Id. The presumption may be overcome by evidence that a

fair hearing before the board is not possible due to such circumstances

as prejudgment voting or when board members act as investigators in
                                       16

the absence of a subsequent evidentiary hearing. See Wedergren v. Bd.

of Dirs., 307 N.W.2d 12, 17–18 (Iowa 1981); Keith v. Cmty. Sch. Dist., 262

N.W.2d 249, 258–61 (Iowa 1978).

       Although chapter 279 does not provide a procedure by which a

teacher may raise claims of bias or prejudice, school board members are

quasi-judicial officers when exercising their statutory duty to adjudicate

teacher-termination proceedings. Courtright v. Consol. Indep. Sch. Dist.,

203 Iowa 26, 30, 212 N.W. 368, 370 (1927). Generally, presiding judges

and judicial officers are immune from testifying. See Iowa R. Evid. 5.605

(prohibiting presiding judges from testifying as witnesses); see also State

v. Gardner, 661 N.W.2d 116, 117–18 (Iowa 2003) (“This rule [prohibiting

judges from testifying] is violated whenever the judge functions as a

witness, even though the judge may not actually take the stand to

testify.”).   By analogy, the same rule of quasi-judicial immunity would

apply to written questions propounded to board members acting as

quasi-judicial officers: as with testimony, interrogatories involve answers

to questions under oath. Board members, like judges, must generally be

immune from providing any form of testimony at hearings.

       Nevertheless, this immunity does not prevent claims of board

member bias or prejudice from being raised and addressed.                 Board

members are subject to “ ‘the common-law rule of disqualification

applicable to judges.’ ” Keith, 262 N.W.2d at 261 (quoting 1 Am. Jur. 2d

Administrative Law § 63 (now substantially found at 2 Am. Jur. 2d

Administrative Law § 38 (2004))) (further holding common-law rule

“ ‘extends    to   every   tribunal   exercising   judicial   or   quasi-judicial

functions’ ”). We have generally described this rule as follows:

       Any board member who harbors prejudice or predilection
       should recuse himself or herself. Board members possessing
       personal knowledge must place it aside or, if they are unable
                                      17
      to do so, themselves step aside. The board must be mindful
      that the decision turns on its own finding of the presence or
      absence of qualifications and not on the recommendation of
      an administrator or prior employer—although these may of
      course be received and considered.

Bishop v. Keystone Area Educ. Agency No. 1, 275 N.W.2d 744, 752 (Iowa

1979).   As with judges, recusal by board members will depend on the

remoteness of the interest and the extent or degree of the interest. See

State v. Mann, 512 N.W.2d 528, 533 (Iowa 1994). Yet, the process does

not rest entirely with the adjudicator. In the event board members do

not disqualify themselves on their own, a party is permitted to raise the

issue by motion on the record. See State v. Smith, 242 N.W.2d 320, 324

(Iowa 1976). This record provides a means for judicial review of the claim

of bias or prejudice.

      The recusal and disqualification process reveals teachers are

adequately protected from fears of bias or prejudice by board members

just as litigants in civil proceedings are protected from fears of judicial

bias or prejudice.      These procedures justify the school board’s general

immunity from testifying or answering interrogatories, protect teachers

from bias and prejudice, and support the limited role of the district court

when intervening in termination proceedings.

      VI. Conclusion.

      We reverse the decision of the district court and remand the case

to the school board to proceed with the termination hearing without

further delay and without the production of additional documents

pursuant to the subpoena issued to the superintendent.

      REVERSED AND REMANDED.

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