              IN THE SUPREME COURT OF IOWA
                              No. 12–0827

                          Filed July 11, 2014


IOWA FARM BUREAU FEDERATION, IOWA RENEWABLE FUELS
ASSOCIATION, and IOWA WATER ENVIRONMENT ASSOCIATION,

      Appellants,

and

AGRIBUSINESS ASSOCIATION OF IOWA, ASSOCIATION OF
BUSINESS AND INDUSTRY, IOWA CATTLEMEN’S ASSOCIATION,
IOWA INSTITUTE FOR COOPERATIVES, IOWA LIMESTONE
PRODUCERS     ASSOCIATION,   IOWA   PORK     PRODUCERS
ASSOCIATION, IOWA POULTRY ASSOCIATION, IOWA TURKEY
FEDERATION, and IOWA CORN GROWERS ASSOCIATION,

      Appellants,

vs.

ENVIRONMENTAL PROTECTION COMMISSION
and IOWA DEPARTMENT OF NATURAL RESOURCES,

      Appellees,

and

ENVIRONMENTAL LAW & POLICY CENTER OF THE MIDWEST,
IOWA ENVIRONMENTAL COUNCIL, and the SIERRA CLUB,

      Appellees.



      Appeal from the Iowa District Court for Polk County, Bradley

McCall and Mary Pat Gunderson, Judges.



      Petitioners and intervenors appeal from the summary judgment

granted by the district court in a judicial review action. AFFIRMED.
                                    2

      Michael L. Mock and Karl T. Olson of Parker, Simons & McNeill,

P.L.C., West Des Moines, and Julia L. Vyskocil and Eldon L. McAfee of

Beving, Swanson & Forrest, P.C., Des Moines, for appellants.



      Thomas J. Miller, Attorney General, David R. Sheridan and

David S. Steward,    Assistant   Attorneys    General,    for    appellees

Environmental Protection Commission and Iowa Department of Natural

Resources.

      Bradley D. Klein, Chicago, Illinois, and Joshua T. Mandelbaum,

Des Moines, for intervenor-appellee Environmental Law & Policy Center,

and Wallace L. Taylor, Cedar Rapids, for appellee Sierra Club.
                                      3

CADY, Chief Justice.

      In this appeal, we decide two issues concerning the qualifications

of persons who serve state government on commissions that engage in

rulemaking. First, we must decide whether an Iowan who served on a

commission was disqualified to vote on the adoption of a rule and

regulation when she engaged in activities in her employment in support

of the rule.     Second, we must decide whether a rule adopted by a

commission was invalid after it was discovered that a member who

participated in the voting was not actually qualified to serve on the

commission because she had lost her status as an elector in Iowa.

      On our review of the decision by the district court, we conclude the

nature of rulemaking does not disqualify a commission member from

voting to adopt rules she personally and professionally supported. We

also conclude that the disqualification of a commission member does not

invalidate the action taken by the commission when the particular

disqualification did not undermine the integrity of the process and when

the   public    interest   supports   validating   the   rule     despite   the

disqualification. We affirm the decision of the district court.

      I. Background Facts and Proceedings.

      The Environmental Protection Commission exists to protect Iowa’s

environment and conserve its natural resources.          One of its primary

duties is to establish policies and make rules governing the environment,

including the adoption of rules to implement federal environmental

programs.      See Iowa Code § 455A.6(6)(a) (2009).      The Commission is

composed of nine members appointed by the Governor subject to senate

confirmation. Id. § 455A.6(1). The members serve staggered four-year

terms. Id. The Commission meets at numerous times throughout the

year, usually monthly, and the members receive per diem compensation
                                   4

in addition to reimbursement for expenses.         Id. § 455A.6(3), (4).

Membership on the Commission is not a full-time position.      Members

usually have other careers and employment, but join hundreds of other

Iowans to participate in the operation of government by serving on

various boards and commissions that assist in the operation of

government.

      In March 2007, Governor Chet Culver appointed Susan Heathcote

to the Commission.     The appointment was confirmed by the senate.

Heathcote was employed by the Iowa Environmental Council. The Iowa

Environmental Council is a nonprofit corporation located in Des Moines.

Its function is to work to protect Iowa’s natural environment. Heathcote

held the position of Water Program Director and was responsible for

researching environmental issues, advising the Council on policy, and

representing the Council on advisory groups. Heathcote began working

for the Council in 1996.

      In May 2009, Governor Culver appointed Carrie La Seur to the

Commission. Her appointment was also confirmed by the senate. She

lived in Mount Vernon, Iowa, at the time of her appointment. La Seur is

a lawyer and ran an organization called Plains Justice. She served as

secretary of the Commission.

      In July 2009, La Seur moved to Montana.      Her husband was a

professor at Cornell College in Mount Vernon, and she accompanied him

when he left Iowa on a teaching sabbatical in Montana.         La Seur,

however, continued to own a home in Mount Vernon during the

sabbatical and continued to serve on the Commission. She returned to

Iowa for Commission meetings or appeared by telephone conference call.

      La Seur obtained a Montana drivers’ license after moving and

registered to vote in Montana in July 2009.        She was previously
                                      5

registered to vote in Iowa. The sabbatical turned into a permanent move

after La Seur’s husband accepted a job offer to work in Montana in

January 2010.

      Heathcote and La Seur served on the Commission during a critical

period of time when it considered the adoption of rules to prevent the

degradation of existing water quality of Iowa’s water resources.          The

United States Environmental Protection Agency (EPA) promulgated a

regulation in 1983, which required states to adopt policies aimed at

preventing degradation of existing water quality and consistent with

federal criteria. See 48 Fed. Reg. 51,400–01 (Nov. 8, 1983) (codified at 40

C.F.R. § 131.6 (2010)). The EPA promulgated the regulation pursuant to

the Federal Water Pollution Control Act, which is better known as the

Clean Water Act (CWA). See 33 U.S.C. § 1313(a)(3)(A) (2006) (requiring

states to establish water quality standards). One component of a state’s

water quality standards submission is “[a]n antidegradation policy

consistent with § 131.12.” 40 C.F.R. § 131.6(d). For an antidegradation

policy to be consistent with federal criteria, it must, at a minimum,

maintain   and    protect   certain   existing   uses   of   waterways.   Id.

§ 131.12(a)(1).   Iowa law similarly requires the Iowa Department of

Natural Resources (IDNR), through the Commission, to “[e]stablish,

modify, or repeal water quality standards, pretreatment standards, and

effluent standards.” Iowa Code § 455B.173(2).

      Iowa was slow to respond to the federal regulation, despite efforts

by federal authorities over the years to spur Iowa to begin the

implementation process. In July 2007, the IDNR finally initiated what

ultimately would be a three-year process of adopting rules to implement

the federal antidegradation program. The process began with a meeting

between the individuals from the IDNR, Iowa Environmental Council,
                                      6

Iowa Chapter of the Sierra Club, Hawkeye Fly Fishing Association, and

the Environmental Law and Policy Center. Two petitions for rulemaking

with recommended antidegradation rules were subsequently submitted

to the IDNR in support of the development of appropriate antidegradation

standards.     The first petition was submitted in October 2007 by a

coalition of water quality groups consisting of the Iowa Environmental

Council, Iowa Chapter of the Sierra Club, and Hawkeye Fly Fishing

Association.    In June 2008, Iowa Farm Bureau Federation and other

agribusiness and industrial interests filed a second petition for

rulemaking that sought a different set of antidegradation standards. The

antidegradation rules advocated in the first petition were generally more

stringent than the rules advocated in the second petition.

       Heathcote played an active role in her employment with the Iowa

Environmental Council in developing the proposed rules submitted to the

IDNR in the October petition by her employer and the other coalition

groups.     She was also active in pushing the IDNR to initiate the

rulemaking process, and she remained involved in the process the IDNR

followed after the petitions for rulemaking were filed.       Heathcote was

recognized as a lead person among the environmental groups advocating

for the first petition.

       The IDNR held numerous workshops and meetings with various

stakeholders after the petitions were filed.        It also solicited public

comments and held various public hearings.           Heathcote advocated in

support of the first petition at all stages of the process.

       After considering the petitions and the input provided by the

rulemaking process, the IDNR drafted a proposed antidegradation rule

for the state, as well as proposed implementation procedures.           The

proposed rules and procedures would eventually be submitted to the
                                             7

Commission for approval. The rules drafted by the IDNR differed from

the rules proposed by the two petitions, but they were more closely

aligned to the proposals in the first petition.

      In     December       2009,      the    Commission        approved       the    final

antidegradation rules and procedures by a vote of six to two. Heathcote

and La Seur voted to approve the rules, and one member of the

Commission abstained.

      The rules and procedures approved by the Commission were then

approved by a legislative committee and submitted to the EPA for review

and approval.         Iowa’s antidegradation rules and procedures were

approved by the EPA in September 2010.

      In October 2010, Iowa Farm Bureau Federation and two other

associations filed a petition for judicial review under section 17A.19 of

the Iowa Administrative Procedure Act (IAPA). 1                The petition sought to

overturn the Iowa Antidegradation Standards and Implementation

Procedures. They allege the action taken by the Commission was invalid

because Heathcote was disqualified to vote due to a conflict of interest,

and La Seur was disqualified to serve on the Commission at the time she

voted because she did not satisfy the requirement for Commission
members to be eligible Iowa electors.

      In April 2011, the Commission filed a motion for summary

judgment in response to the petition for judicial review.                     It claimed

neither Heathcote nor La Seur was disqualified from voting as a matter of

law. Farm Bureau responded to the motion by requesting time to reply

so that it could pursue discovery of facts and information relevant to the

summary judgment proceedings. It also moved to compel discovery from

      1The   petitioners will be collectively referred to in this opinion as Farm Bureau.
                                     8

the Iowa Environmental Council, which had intervened in the case.

Farm Bureau had previously obtained extensive documents and

materials from the Commission, IDNR, and Iowa Environmental Council

pursuant to subpoenas and other methods of discovery, but wanted

additional production of internal records and documents relating to

Heathcote’s employment and other activities related to her employment,

as well as all other communications by Heathcote relating to the process

and the adoption of the antidegradation rule.       This request included

emails and other communications between staff, attorneys, donors, and

others. The Iowa Environmental Council claimed the discovery request

sought   confidential   and    protected   information   and   was   overly

burdensome and largely unnecessary to resolve the substantive issues.

      The district court denied the motion to compel discovery and

granted the motion to quash filed by the Iowa Environmental Council.

Farm Bureau eventually filed a resistance to the summary judgment

motion and sought summary judgment on the issue involving the

disqualification of La Seur.

      The district court granted summary judgment for the Commission,

denied summary judgment sought by Farm Bureau, and dismissed the

petition. Farm Bureau appealed and raised three issues. First, it claims

the district court erred by granting summary judgment prior to the close

of discovery.   Second, it claims the district court erred by granting

summary judgment to the Commission on Farm Bureau’s claim that

Heathcote had a conflict of interest that required vacating the

antidegradation policy. Finally, Farm Bureau contends the district court

erred by granting summary judgment to the Commission regarding Farm

Bureau’s claim that La Seur’s registration to vote in Montana voided her

status as an eligible Iowa elector and that she was in turn no longer
                                    9

qualified to serve on the Commission. Accordingly, Farm Bureau argues

the district court also erred by not vacating the antidegradation policy on

this ground.

      II. Scope of Review.

      We review a decision to deny discovery by the district court for

abuse of discretion.   Kulish v. Ellsworth, 566 N.W.2d 885, 889 (Iowa

1997).   We review a decision by the district court to grant summary

judgment for correction of errors at law. Rucker v. Humboldt Cmty. Sch.

Dist., 737 N.W.2d 292, 293 (Iowa 2007); Iowa R. App. P. 6.907.

      III. Discovery Prior to Summary Judgment.

      The decision to deny or grant a continuance of a motion for

summary judgment to pursue discovery lies within the discretion of the

trial court. Kulish, 566 N.W.2d at 889. Generally, a party to a lawsuit

should be allowed to complete discovery before summary judgment is

considered. Miller v. Cont’l Ins. Co., 392 N.W.2d 500, 503 (Iowa 1986).

      Although a continuance would ordinarily be appropriate in a case

of this nature, it is clear the salient facts relevant to the claim that

Heathcote was disqualified from voting had emerged by the time the

summary judgment was filed. As an employee of the Iowa Environmental

Council, Heathcote unquestionably played an active role in urging the

IDNR to move forward with antidegradation rules and procedures and

she actively participated in filing and promoting a petition for rulemaking

with the IDNR.    She also advocated on behalf of her employer for the

stringent rules proposed by the advocacy groups responsible for filing the

petition and was engaged in the process established by the IDNR to

address both petitions for rulemaking.     Heathcote advocated that the

IDNR propose stringent antidegradation rules and procedures to the
                                      10

Commission, upon which she served, for approval.         Farm Bureau had

obtained ample discovery to pursue its legal challenge in this case.

      Importantly, the structural claim of a conflict of interest asserted

by Farm Bureau was not based on hidden conduct by the Iowa

Environmental Council or the IDNR.            Instead, the claims squarely

centered on a very open and visible dual role that Heathcote performed

as   an   advocate   and   ultimate     adjudicator.   There   were    ample

considerations to balance by the district court, and it was within the

court’s discretion to deny discovery.

      IV. Disqualification of Commissioner Heathcote.

      The resolution of this case first requires a full understanding of the

process followed in our government to implement regulations within the

executive branch. At first blush, the idea of an individual serving as both

an advocate and a decision-maker seems contrary to our general

governmental approach.     We must decide if this initial response rings

true upon deeper inquiry into the rulemaking function of government.

      Within our governmental structure, the IDNR is administered by a

director appointed by the Governor, subject to senate confirmation. Iowa

Code § 455A.3. The director serves at the pleasure of the Governor. Id.

Generally, the director has the power and duty to administer the IDNR as

provided by the legislature. Id. § 455A.4. Our legislature, however, also

established the Environmental Protection Commission to perform certain

overview responsibilities, including the duty to establish policy and rules

for the effective administration of the IDNR. Id. § 455A.6(6)(a).

      Consistent with most commissions within the executive branch of

government, the Environmental Protection Commission is composed of a

citizen panel. This approach is part of the larger venerable governmental

process of citizen participation and voice in our democracy that together
                                      11

with direct participation by publicly elected officials marks the strength

and vibrancy of our democracy.

      As a component of the executive branch of government, the

members of the Environmental Protection Commission are appointed by

the Governor, subject to senate confirmation.        Id. § 455A.6(1).    The

integrity and strength of citizen participation is established by the

required composition of the membership of the Commission.                 All

members must be electors of Iowa and all members must have

knowledge of the subjects embraced under the governing laws. Id. More

specifically, three members of the Commission must be actively engaged

in livestock and grain farming, one member must be an active manager

of a manufacturing company, and one member must be actively working

in finance or commerce. Id. § 455A.6(1)(a), (b), (c). The remaining four

members do not need any specific employment or background, other

than to be an elector and have knowledge of the subject matter of the

Commission. Id. § 455A.6(1)(d). An elector is a person eligible to vote in

Iowa. See Iowa Const. art. II, § 1.

      The Governor may not make appointments to the Commission

based on political considerations, other than to meet the general

requirements for the membership of appointive boards and commissions

in this state to satisfy the balance of political affiliation under Iowa Code

section 69.16. Iowa Code § 455A.6(1). Yet, this statutory requirement

does not infringe upon the prerogative of a governor to otherwise appoint

individuals to the Commission who may share the views of the Governor

on the subject matter of the Commission or individuals who may even

publicly advocate those views in their personal or professional life. All

individuals who work in a particular discipline acquire special knowledge

and develop perspectives and views about various issues. By requiring
                                    12

some    members    of   the   Environmental   Protection   Commission    to

specifically work in certain areas and by requiring all members to have

special knowledge of the subject matter of the Commission, the

legislative scheme appears to contemplate that individual views,

perspectives, and knowledge are desired strengths.

       Moreover, a governor, as the top-elected representative of the

people, has always had the ability to shape the overall perspective and

direction of commissions through the power of appointment. Thus, the

“political considerations” excluded from the appointment process by

statute do not normally extend to the ability of a governor to appoint

Commission members who have particular views about subjects expected

to come before the Commission that may be consistent with the views of

the Governor or the political party of the Governor. Instead, this concept

reflects the basic nature of governing through public elections and is

deeply embedded within the executive and legislative branches of

government.

       This background does not undermine or oppose the claim asserted

by Farm Bureau in this case that Heathcote should have been

disqualified. Instead, it permits it. See id. § 17A.19. One of the specific

grounds for judicial review of agency action permits courts to grant relief

from an action taken by an agency when it was “[t]he product of decision

making undertaken by persons who were improperly constituted as a

decision-making body, were motivated by an improper purpose, or were

subject to disqualification.”    Id. § 17A.19(10)(e).   Accordingly, Farm

Bureau uses the IAPA to frame its core claim that its rights were

prejudiced by the Commission action in this case because Heathcote was

“motivated by an improper purpose” and should have been disqualified

from voting. Id.
                                     13

      The claim by Farm Bureau that the Commission rulemaking action

was   motivated    by   an   improper     purpose   and   was    subject   to

disqualification is based on the dual role of Heathcote as a strong and

active advocate, both personally and on behalf of her employer, before

the IDNR at the same time as she was a member of the Commission that

would ultimately be responsible to approve an antidegradation rule

developed by the IDNR.       More specifically, Farm Bureau argued the

actions of Heathcote violated the conflict-of-interest statute that restricts

outside employment and activities by a person who is employed by the

state or otherwise serves the state.      See id. § 68B.2A(1)(a), (b).   This

statute prohibits a state employee or other person serving the state from

engaging in outside employment or activity that conflicts with the

person’s official duties and responsibilities. See id. § 68B.2A(1).

      To aid in a determination whether a particular outside employment

or activity creates an unacceptable conflict of interest, the legislature

identified three types of unacceptable conflicts. See id. One situation

concerns outside employment or activity that involves the use of state

time or resources or the use of state identification that gives the person

an advantage or benefit not available to the general public.               Id.

§ 68B.2A(1)(a).   Another situation deemed an unacceptable conflict by

the legislature is when the outside employment or activity involves

consideration received by a state employee from someone other than the

state for performing work that is a part of the duties and responsibilities

of state employment. Id. § 68B.2A(1)(b).

      We have in the past determined that a statutory conflict can serve

to disqualify the vote of a member of a governmental council or

commission. Wilson v. Iowa City, 165 N.W.2d 813, 823 (Iowa 1969). In

Wilson, we confronted a statute that prohibited a public official from
                                             14

acquiring a personal interest in an urban renewal project and,

specifically, disqualified officials with such an interest from voting on a

project.   Id. at 817; see also Iowa Code § 403.16 (1966) (prohibiting

interested officials from participating in urban renewal proceedings).2

We held a city councilman violated this statute and was disqualified from

voting to approve an urban renewal plan because he was employed by an

entity that owned real estate in the project area that would directly

benefit by the renewal project. Wilson, 165 N.W.2d at 823. Furthermore,

the councilman was expected to work with the city in his employment on

various interests in the renewal project. Id. We found the nature of the

employment duties created a disqualifying personal interest, even though

there was no direct financial advantage to the councilman. Id. at 821–

23. We recognized the councilman had dual interests at stake—duties to

his employer and duties of the city council—and that his dual interests

had a potential to present the disqualifying conflict.              Id. at 823.     We

emphasized that the councilman’s employer had an “unusual and direct”

financial interest in the renewal proceedings: his employer had the


       2That   section provided, in relevant part:
       No public official or employee of a municipality, or board or commission
       thereof . . . shall voluntarily acquire any personal interest, direct or
       indirect, in any urban renewal project, or in any property included or
       planned to be included in any urban renewal project of such
       municipality, or in any contract or proposed contract in connection with
       such urban renewal project. . . . If any such official, commissioner or
       employee presently owns or controls, or has owned or controlled within
       the preceding two years, any interest, direct or indirect, in any property
       which he knows is included or planned to be included in an urban
       renewal project, he shall immediately disclose this fact in writing to the
       local governing body, and such disclosure shall be entered upon the
       minutes of the governing body; and any such official, commissioner or
       employee shall not participate in any action by the municipality, or board
       or commission thereof, or urban renewal agency affecting such property.
Iowa Code § 403.16 (1966).
                                     15

exclusive right to purchase some of the land the city condemned. Id. at

821, 823.

      Farm Bureau avers section 68B.2A(1)(a) and (b) provides the

applicable statutory standard for the disqualification of Heathcote in this

case. Yet, unlike the underlying statute in Wilson, section 68B.2A does

not prohibit members of commissions from voting if they have an

unacceptable conflict as defined in subsections (1)(a) and (b); instead, it

merely requires the official to “cease the employment or activity.” Iowa

Code § 68B.2A(2). This is not to say section 68B.2A does not support

disqualification of those officials who have unacceptable conflicts of

interest. It does, just not for the conflict of interest Farm Bureau alleges

should have disqualified Heathcote.       See id. (providing that officials

whose outside employment creates a conflict under either subsection

(1)(c) or else a rule promulgated by the ethics board pursuant to

subsection (4) shall “refrain from taking any official action or performing

any official duty that would detrimentally affect or create a benefit for the

outside employment or activity” if the official does not cease the activity).

The violations of section 68B.2A claimed by Farm Bureau do not

necessarily support automatic disqualification as a remedy for violation.

      We also recognize chapter 68B includes a specific ban on lobbying

by state officials before certain boards.       Id. § 68B.5A; see City of

Des Moines v. City Dev. Bd., 633 N.W.2d 305, 311–12 (Iowa 2001)

(discussing the relationship between general and specific statutes). The

Government Ethics and Lobbying Act, however, excludes members of

boards and commissions from that ban. See Iowa Code §§ 68B.2, .5A.

Section 68B.5A(1) prohibits lobbying by any “statewide elected official,

the executive or administrative head of an agency of state government,

the deputy executive or administrative head of an agency of state
                                     16

government, or member of the general assembly.”            Id. § 68B.5A(1).

Section 68B.5A(2) prohibits “[t]he head of a major subunit of a

department or independent state agency whose position involves

substantial exercise of administrative discretion or the expenditure of

public funds” as well as certain employees “whose position involves

substantial exercise of administrative discretion or the expenditure of

public funds” from “lobbying before the agency in which the person is

employed or before . . . whom the person has substantial or regular

contact as part of the person’s duties.”         Id. § 68B.5A(2).    Section

68B.5A(3) prohibits other employees from lobbying with respect to “any

particular case, proceeding, or application with respect to which the

person is directly concerned and personally participates as part of the

person’s employment.” Id. § 68B.5A(3). All three subsections create a

limited exception that permits an individual to lobby if specifically

designated by the agency for which the individual works.                  Id.

§ 68B.5A(1)–(3).

      However, a member of a board or a commission does not fall into

any of these statutory categories. A member of a board or commission is

an “official,” a term that consists of a specific enumeration of positions.

Id. § 68B.2(17).    Notably, many of the individuals who constitute the

class of “officials” are identified in the outright ban on lobbying contained

in section 68B.5A(1), with the notable exceptions of the heads of major

subunits of departments or agencies and members of boards or

commissions.       See id. § 68B.5A(1).   Of course, the heads of major

subunits are barred from a narrower scope of lobbying—lobbying before

their agency or an agency they regularly contact—in section 68B.5A(2).

See id. § 68B.5A(2).     Yet, the first two subsections do not mention

members    of   boards    or   commissions.     See   id. § 68B.5A(1),   (2).
                                   17

Furthermore, a “[s]tate employee” is not an “official.”     Id. § 68B.2(25).

Thus, the narrowest ban on lobbying contained in section 68B.5A(3) does

not apply to members of boards or commissions. In construing section

68B.2A as identified by Farm Bureau, we cannot ignore the more specific

statute on point that does not prohibit lobbying by members of boards or

commissions.

       Of course, many of the general principles identified in Wilson

remain applicable. As Farm Bureau points out, Wilson recognized many

conflict of interest statutes “are merely declaratory of the common law.”

165 N.W.2d at 822.     Indeed, we did not “limit ourselves to the literal

language of [section 403.16] alone” in Wilson.        Id.    Here, section

68B.2A(3) expressly disavows displacing common law.         See Iowa Code

§ 68B.2A(3) (“Unless otherwise specifically provided the requirements of

this section shall be in addition to, and shall not supersede, any other

rights or remedies provided by law.”).    Additionally, we think section

17A.19(10) of the IAPA incorporates general common law conflict-of-

interest principles.   Notably, section 17A.19(10)(e) not only prohibits

action that was “motivated by an improper purpose,” but also action

taken when the administrator was “subject to disqualification.”           Id.

§ 17A.19(10)(e).   It seems that the legislature intended to incorporate

general conflict-of-interest standards and enable judicial development of

these standards.

       Conflict-of-interest rules, “whether common law or statutory, are

based on moral principles and public policy.”     Wilson, 165 N.W.2d at

822.   “They demand complete loyalty to the public and seek to avoid

subjecting a public servant to the difficult, and often insoluble, task of

deciding between public duty and private advantage.”         Id.   “It is not

necessary that this advantage be a financial one,” and “[t]he employer–
                                     18

employee relationship has always been recognized as one source of

possible conflict of interest.” Id. at 822, 823. To be more accurate, we

have viewed the specific conflict in an employer–employee relationship

context “as a conflict of duties rather than a conflict of interest.” Id. at

823. In this regard, our basic inquiry considers how the conflict impacts

loyalty and duty to perform the commission work. See id. To be sure, an

urban renewal proceeding is only one type of official action, and Wilson

itself treated its facts as unique. See id. at 821–23. Therefore, section

68B.2A is relevant, but we must examine the particular claim of conflict

asserted within the role of rulemaking.     We thus proceed to identify a

standard to utilize to resolve the conflict-of-interest issue presented.

      We begin by examining the nature of agency rulemaking.               The

standard of disqualification based on a conflict of interest would not

necessarily be the same in every type of agency action. Generally, agency

action encompasses the product of rulemaking, contested cases, and

other agency action. Smith v. Iowa Bd. of Med. Exam’rs, 729 N.W.2d 822,

826 (Iowa 2007). A contested case is

      a proceeding including but not restricted to ratemaking,
      price fixing, and licensing in which the legal rights, duties or
      privileges of a party are required by Constitution or statute
      to be determined by an agency after an opportunity for an
      evidentiary hearing.

Iowa Code § 17A.2(5).      In contrast, rulemaking is the “process for

adopting, amending, or repealing a rule.” Id. § 17A.2(12).       A rule is a

“statement of general applicability that implements, interprets, or

prescribes law or policy.” Id. § 17A.2(11). A rule is not, however, “[a]

determination, decision, or order in a contested case.” Id. § 17A.2(11)(d).

Section 17A.2 thus creates an irreducible dichotomy between rulemaking
                                      19

and contested cases. The importance of this dichotomous relationship is

fully revealed by the facts of this case.

      The diverse forms of agency action necessitate different standards

of review depending on the agency action and the context of the

challenge.    See Iowa Code § 17A.19(10).           We have also said the

distinction between forms of agency action is important for determining

the amount of “due process afforded to parties.”        Greenwood Manor v.

Iowa Dep’t of Pub. Health, 641 N.W.2d 823, 834 (Iowa 2002). For the

reasons that follow, we think the distinction is similarly relevant to the

standard for disqualifying an administrator. One standard—employed in

Wilson and suggested by Farm Bureau—focuses on the potential for a

conflict or the appearance of bias.        See 165 N.W.2d at 822 (“It is the

Potential for conflict of interest which the law desires to avoid.”). We take

note that this standard is closely similar to a standard utilized by federal

courts in some contexts, which defines a disqualifying interest as any

interest on the part of an administrator that could cause “ ‘a

disinterested observer [to] conclude that (the agency) has in some

measure adjudged the facts as well as the law of a particular case in

advance of hearing it.’ ” See Cinderella Career & Finishing Sch., Inc. v.

FTC, 425 F.2d 583, 591 (D.C. Cir. 1970) (quoting Gilligan, Will & Co. v.

SEC, 267 F.2d 461, 469 (2d Cir. 1959)). Under the Cinderella standard,

adjudicatory hearings before the agency “ ‘must be attended, not only

with every element of fairness but with the very appearance of complete

fairness.’ ” Id. (quoting Texaco, Inc. v. FTC, 366 F.2d 754, 760 (D.C. Cir.

1964)).

      The Cinderella standard is generally compatible, not only to the

standard employed in Wilson, but the standard we have applied in the

context of contested cases as well. See Anstey v. Iowa State Commerce
                                          20

Comm’n, 292 N.W.2d 380, 390 (Iowa 1980) (“We believe that agency

personnel charged with making decisions of great import . . . should be

guided by the rationale of [Canon 2 of the Code of Judicial Conduct as it

existed in 1980, which provided that ‘[a] judge should avoid impropriety

and the appearance of impropriety in all of his activities.’]”). 3                  Yet,

Anstey’s contemporary cases reveal bias is not an unlimited concept. We

stated in another case:

             As here employed the term “bias” means adverse,
       preconceived mental attitude or disposition, toward a party
       to a controversy, of such weight and nature as to materially
       impair or destroy that impartiality essential to a fair hearing.
       It does not relate to views entertained regarding the subject
       matter involved . . . .

Cedar Rapids Steel Transp., Inc. v. Iowa State Commerce Comm’n, 160

N.W.2d 825, 837 (Iowa 1968) (emphasis added). After all, a claim of bias

in the context of contested cases “becomes a justiciable issue only as it

bears on the fairness of the hearing.” Anstey, 292 N.W.2d at 390. In the

context of due process in adjudicative proceedings before school boards,

the presumption of objectivity and impartiality in contested cases “will

typically be determinative of the bias issue” and can only be overcome by

“direct, compelling evidence to the contrary.” Bd. of Dirs. v. Justmann,

476 N.W.2d 335, 340 (Iowa 1991).

       Anstey itself recognized that comments generally suggestive of a

particular    policy   position    do    not   require    disqualification     in   the

adjudicatory context.       See 292 N.W.2d at 391.            In the context of an

administrator who had made statements in a contested case surrounding

extension of electrical transmission lines, we said:

       3A  current component of the Code of Judicial Conduct requires a judge to
“disqualify himself or herself in any proceeding in which the judge’s impartiality might
reasonably be questioned.” Iowa Ct R. 51:2.11(A).
                                     21
      Van Nostrand’s statements at the Energy Policy Council that
      few objections are good, that most objectors are motivated by
      financial considerations and that most objectors merely want
      the lines to cross other peoples’ property, while they might
      be interpreted as leaning toward the general view that
      electrical transmission franchises should be extended, are
      not shown to be directly referable to this particular line or to
      the objections to it.

Id. at 390. Thus,

      taking a position, even in public, on a policy issue related to
      the dispute does not disqualify a decision maker. In order to
      disqualify him, it must be shown “that he is not capable of
      judging a particular controversy fairly on the basis of its own
      circumstances.”

Id. (quoting Hortonville Joint Sch. Dist. No. 1 v. Hortonville Educ. Ass’n,

426 U.S. 482, 493, 96 S. Ct. 2308, 2314, 49 L. Ed. 2d 1, 9 (1976));

accord United States v. Morgan, 313 U.S. 409, 421, 61 S. Ct. 999, 1004,

85 L. Ed. 1429, 1435 (1941).

      Notwithstanding, a rulemaking is different from a contested case

and follows a different standard for disqualification.        Ass’n of Nat’l

Advertisers, Inc. v. FTC, 627 F.2d 1151, 1165–70 (D.C. Cir. 1979); accord

Lead Indus. Ass’n v. EPA, 647 F.2d 1130, 1179 (D.C. Cir. 1980). This

different standard is based on the broad distinctions between rulemaking

and a contested case proceeding, as well as the different due process
concerns.

      In a rulemaking, agencies are expected to “allocate resources more

efficiently, act with greater speed, and give specific notice to industries of

the scope” of the proposed rule. Ass’n of Nat’l Advertisers, 627 F.2d at

1166; see also Nat’l Petroleum Refiners Ass’n v. FTC, 482 F.2d 672, 690–

91 (D.C. Cir. 1973) (recognizing the efficiency that accrues to rulemaking

proceedings).   “The legitimate functions of a policymaker, unlike an

adjudicator, demand interchange and discussion about important

issues.” Ass’n of Nat’l Advertisers, 627 F.2d at 1168. Indeed, effective
                                     22

officials “must engage in debate and discussion about policy matters

before [the Agency],” and “ ‘informal contacts between agencies and the

public are the “bread and butter” of the process of administration.’ ” Id.

at 1169 (emphasis added) (quoting Home Box Office, Inc. v. FCC, 567 F.2d

9, 57 (D.C. Cir. 1977) (per curiam)).

      Thus, “[t]he Cinderella view of a neutral and detached adjudicator

is simply an inapposite role model for an administrator who must

translate broad statutory commands into concrete social policies.” Id. at

1168–69. Due process in a rulemaking does not “impose judicial roles

upon administrators when they perform functions very different from

those of judges.”    See id. at 1168.     Consequently, the Association of

National Advertisers standard will disqualify a commissioner “only when

there has been a clear and convincing showing that the agency member

has an unalterably closed mind on matters critical to the disposition of

the proceeding.” Id. at 1170.

      The D.C. Circuit has uniformly applied this standard to challenges

to informal rulemaking proceedings asserting an administrator should

have recused himself or herself. See Air Transp. Ass’n of Am., Inc. v. Nat’l

Mediation Bd., 663 F.3d 476, 487 (D.C. Cir. 2011); PLMRS Narrowband

Corp. v. FCC, 182 F.3d 995, 1002 (D.C. Cir. 1999); C & W Fish Co. v. Fox,

Jr., 931 F.2d 1556, 1564 (D.C. Cir. 1991); Consumers Union of U.S., Inc.

v. FTC, 801 F.2d 417, 427 (D.C. Cir. 1986); United Steel Workers of Am.,

AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1209 (D.C. Cir. 1980). Other

courts have adopted this rubric as well.       See Alaska Factory Trawler

Ass’n v. Baldridge, 831 F.2d 1456, 1467 (9th Cir. 1987); Citizens for a

Better Env’t v. Illinois Pollution Control Bd., 504 N.E.2d 166, 171 (Ill. App.

Ct. 1987); Fogle v. H & G Rest., Inc., 654 A.2d 449, 462 (Md. 1995); Nw.

Bell Tel. Co. v. Stofferahn, 461 N.W.2d 129, 133–34 (S.D. 1990); Tenn.
                                       23

Cable Tel. Ass’n v. Tenn. Pub. Serv. Comm’n, 844 S.W.2d 151, 165 (Tenn.

Ct. App. 1992); see also Mun. Servs. Corp. v. State ex rel. N.D. Dep’t of

Health & Consol. Labs., 483 N.W.2d 560, 563–64 (N.D. 1992) (citing

favorably cases applying the Association of National Advertisers rule, but

applying the stricter Cinderella standard to adjudicative facts).              A

subsequent panel of the D.C. Circuit did seem to call into question the

Association of National Advertisers rule, but did so by suggesting due

process should not apply at all in rulemakings. See Natural Res. Def.

Council, Inc. v. EPA, 859 F.2d 156, 194 (D.C. Cir. 1988).            It does not

appear any court has rejected the Association of National Advertisers rule

in favor of the Cinderella standard.

      The D.C. Circuit’s standard is based in part upon a pair of

century-old United States Supreme Court cases that distinguished

between administrative proceedings that resemble legislative action and

proceedings that resemble adjudicatory action.               See Ass’n of Nat’l

Advertisers, 627 F.2d at 1165. See generally Bi-Metallic Inv. Co. v. State

Bd. of Equalization, 239 U.S. 441, 36 S. Ct. 441, 60 L. Ed. 372 (1915);

Londoner v. City and Cnty. of Denver, 210 U.S. 373, 28 S. Ct. 708, 52

L. Ed. 1103 (1908); Arthur Earl Bonfield, The Definition of Formal Agency

Adjudication Under the Iowa Administrative Procedure Act, 63 Iowa L. Rev.

285, 323–24 (1977) [hereinafter Bonfield] (discussing the influence of

Londoner   and   Bi-Metallic   Investment Co. on        the     development    of

administrative law).   In Londoner, the City of Denver established an

administrative   scheme    permitting       local   boards     “to   make   local

improvements and to assess the cost upon property specially benefited.”

210 U.S. at 375, 28 S. Ct. at 709, 52 L. Ed. at 1108. Determining the

affected landowners were entitled to a hearing, the Court reasoned:
                                    24
             In the assessment, apportionment, and collection of
       taxes upon property within their jurisdiction, the
       Constitution of the United States imposes few restrictions
       upon the states. . . . But where the legislature of a state,
       instead of fixing the tax itself, commits to some subordinate
       body the duty of determining whether, in what amount, and
       upon whom it shall be levied, and of making its assessment
       and apportionment, due process of law requires that, at
       some stage of the proceedings, before the tax becomes
       irrevocably fixed, the taxpayer shall have an opportunity to
       be heard, of which he must have notice, either personal, by
       publication, or by a law fixing the time and place of the
       hearing.

Id. at 385–86, 28 S. Ct. at 714, 52 L. Ed. at 1112.

       By contrast, in Bi-Metallic Investment Co., the Colorado Tax

Commission and State Board of Equalization adopted a substantial

uniform tax increase. 239 U.S. at 443, 36 S. Ct. at 142, 60 L. Ed. at

374.   The Court rejected the challenge without any significant pause,

reasoning:

             Where a rule of conduct applies to more than a few
       people, it is impracticable that everyone should have a direct
       voice in its adoption. The Constitution does not require all
       public acts to be done in town meeting or an assembly of the
       whole. General statutes within the state power are passed
       that affect the person or property of individuals, sometimes
       to the point of ruin, without giving them a chance to be
       heard. Their rights are protected in the only way that they
       can be in a complex society, by their power, immediate or
       remote, over those who make the rule.

Id. at 445, 36 S. Ct. at 142, 60 L. Ed. at 375. In doing so, the Court

distinguished Londoner as a case in which “[a] relatively small number of

persons was concerned, who were exceptionally affected, in each case

upon individual ground.” Id. at 446, 36 S. Ct. at 142, 60 L. Ed. at 375.

The Court continues to adhere to this well-established framework. See

generally United States v. Florida E. Coast Ry., 410 U.S. 224, 93 S. Ct.

810, 35 L. Ed. 2d 223 (1973); United States v. Allegheny-Ludlum Steel

Corp., 406 U.S. 742, 92 S. Ct. 1941, 32 L. Ed. 2d 453 (1972).
                                      25

      Decisions by federal courts interpreting the Federal Administrative

Procedure Act are persuasive in our interpretation of the IAPA. See Iowa

Citizen/Labor Energy Coal., Inc. v. Iowa State Commerce Comm’n, 335

N.W.2d 178, 180 (Iowa 1983). Nevertheless, we think our cases already

provide a foundation for crafting a distinction similar to the one made by

Ass’n of National Advertisers.       See Geringer v. Iowa Dep’t of Human

Servs., 521 N.W.2d 730, 734 (Iowa 1994) (noting Anstey’s rule “must be

tempered so as to harmonize with the dictates of the administrative

process as established by the legislature”); cf. Ass’n of Nat’l Advertisers,

627 F.2d at 1166 (“[W]e must apply a disqualification standard that is

consistent with the structure and purposes of [the FTC Act].”).

      After all, the IAPA presupposes a number of significant differences

between rulemakings and contested cases.          For example, the IAPA

specifically prohibits ex parte communications in contested cases. Iowa

Code § 17A.17(1)(a).     Yet, the rule is silent on ex parte contacts in

informal rulemakings. See id. This suggests the legislature was not as

concerned with ex parte contacts in informal rulemakings.              This

conclusion is consistent with the approach taken by federal courts when

determining    whether    ex parte    agency   contacts   during   informal

rulemakings violate the Federal Administrative Procedure Act. See Ass’n

of Nat’l Advertisers, 627 F.2d at 1169 n.39; see also Hercules, Inc. v. EPA,

598 F.2d 91, 124–25 (D.C. Cir. 1978) (holding intra-agency contacts

during an informal rulemaking do not violate the Federal Administrative

Procedure Act); Home Box Office, 567 F.2d at 57 (“[W]e recognize that

informal contacts between agencies and the public are the ‘bread and

butter’ of the process of administration and are completely appropriate
                                          26

so long as they do not frustrate judicial review or raise serious questions

of fairness.”). 4

       Chapter 17A similarly provides a disqualification standard for

administrators acting in contested cases but not informal rulemakings.

See Iowa Code § 17A.11(2).           The absence of a statutory standard for

disqualification in the rulemaking context is instructive.              See Ass’n of

Nat’l Advertisers, 627 F.2d at 1169 n.39 (discussing differences in

processes between rulemaking and adjudication).                    Section 17A.2(5)

indicates a contested case is any administrative action “in which the

legal rights, duties or privileges of a party are required by Constitution or

statute to be determined by an agency after an opportunity for an

evidentiary hearing.”       Iowa Code § 17A.2(5) (emphasis added).                 The

common thread tying contested cases together in the due process

context—a fair tribunal—is only truly necessary because of the function

of determining adjudicative facts.         Hollinrake v. Iowa Law Enforcement

Acad., 452 N.W.2d 598, 602 (Iowa 1990); Bonfield, 63 Iowa L. Rev. at

323–24. Adjudicative facts “concern[] immediate parties,” Kenneth Culp

Davis, An Approach to Problems of Evidence in the Administrative Process,

55 Harv. L. Rev. 364, 402 (1942) [hereinafter Davis], and “the facts of the

particular case,” Bonfield, 63 Iowa L. Rev. at 323. In contrast, when an

agency implements statutory policy and acts legislatively, it considers

“legislative facts,” which do not concern the immediate parties but

society as a whole, Davis, 55 Harv. L. Rev. at 402–04, and for which an

evidentiary hearing is generally unnecessary, see Bonfield, 63 Iowa L.

       4While Home Box Office expresses limits on this principle, a subsequent panel
backed away from its proposed limits. See Action for Children’s Television v. FCC, 564
F.2d 458, 477–78 (D.C. Cir. 1977); see also Ass’n of Nat’l Advertisers, 627 F.2d at 1169
n.40 (discussing the relationship between Home Box Office and Action for Children’s
Television).
                                   27

Rev. at 325. Adjudicative facts play no role in an informal rulemaking,

making a hearing unnecessary. See Ass’n of Nat’l Advertisers, 627 F.2d

at 1161–62.    Neither the United States or Iowa Constitutions nor any

statute requires the Commission hold a formal evidentiary hearing on the

record before adopting a rule.

      In this regard, chapter 17A suggests a virtual absence of due

process in the context of rulemakings.      See Greenwood Manor, 641

N.W.2d at 834 (“The importance of the distinction between the categories

[of agency action] lies in the due process afforded to parties involved in

contested case proceedings.”); Polk County v. Iowa State Appeal Bd., 330

N.W.2d 267, 276 (Iowa 1983) (same); Lunde v. Iowa Bd. of Regents, 487

N.W.2d 357, 359 (Iowa Ct. App. 1992) (“ ‘Other agency action’ entitles the

person affected to no more than an informal hearing, without the

procedural    due   process   safeguards   inherent   in   an   adversarial

proceeding.”). Federal law is in accord. See Ass’n of Nat’l Advertisers,

627 F.2d at 1165–66 (“When a proceeding is classified as a rulemaking,

due process ordinarily does not demand procedures more rigorous than

those provided by Congress.”); see also Vt. Yankee Nuclear Power Corp. v.

Natural Res. Def. Council, Inc., 435 U.S. 519, 524, 98 S. Ct. 1197, 1202,

55 L. Ed. 2d 460, 467 (1978) (stating the Federal Administrative

Procedure Act’s informal rulemaking procedures contained in 5 U.S.C.

§ 553 establish “the maximum procedural requirements which Congress

was willing to have the courts impose upon agencies in conducting

rulemaking procedures”).

      In this case, the Commission acts under a delegation of authority

from the legislature, see Iowa Code § 455A.6(6), which from a theoretical

standpoint the Commission shares with the Governor, see Iowa Const.

art. IV, § 1 (vesting “supreme executive authority” in the Governor); id.
                                    28

art. IV, § 9 (providing that the Governor “shall take care that the laws are

faithfully executed”).   As a consequence, section 455A.6 represents a

broad mandate of authority to the Commission, which oversees

overwhelming complex and technical subject matter. This, of course, is

consonant with one obvious, general purpose of administrative agencies

within the modern regulatory state: the subjects of regulation are

justifiably   numerous    and   complex,   and   the   importance    of   an

administrator’s legal, technical, and scientific expertise cannot be

understated.    The commissioners are not mere functionaries of the

legislative will; rather, they are executive officers who exercise sound

discretion within the policy-making guidelines the legislature has

provided them. Accordingly, it is understandable the Governor (and the

Iowa Senate, which unanimously confirmed Heathcote based on her

outstanding credentials) would have viewed the expertise Heathcote

could bring to the antidegradation policy rulemaking as indispensable.

See Ass’n of Nat’l Advertisers, 627 F.2d at 1168 (“Rulemaking involves

the kind of issues ‘where a month of experience will be worth a year of

hearings.’ ” (quoting Am. Airlines, Inc. v. Civil Aeronautics Bd., 359 F.2d

624, 633 (D.C. Cir. 1966))).

      Similarly, we cannot forget that the legislature, like Congress, “is

not confined to that method of executing its policy which involves the

least possible delegation of discretion to administrative officers.” Yakus

v. United States, 321 U.S. 414, 425–26, 64 S. Ct. 660, 668, 88 L. Ed.

834, 849 (1944). On the contrary, the discretion can be quite significant

so long as an “intelligible principle” exists to guide its exercise.      See

Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 474, 476, 121 S. Ct.

903, 913, 914, 149 L. Ed. 2d 1, 17, 18 (2001) (holding the EPA could

regulate air pollutants under the Clean Air Act solely on the basis of the
                                         29

pollutant’s risk to human health).            Finally, the Iowa Constitution also

contains       a   provision     permitting    the   legislature   to   nullify   an

administrative rule “by the passage of a resolution by a majority of all of

the members of each house of the general assembly.” Iowa Const. art.

III,   § 40;    see   also     Jerry L. Anderson     &   Christopher    Poynor,   A

Constitutional and Empirical Analysis of Iowa’s Administrative Rules

Review Committee Procedure, 61 Drake L. Rev. 1, 64 (2012) (describing

the legislature’s authority to nullify rules under article III, section 40).

        We recognize, however, as the D.C. Circuit did, that some limited

conception of due process should accompany informal rulemaking. We

understand that meaningful judicial review requires some narrow

opportunity to challenge an administrator for bias. We note, of course, a

commissioner acting in a rulemaking “is presumed to be objective and

‘capable of judging a particular controversy fairly on the basis of its own

circumstances.’ ”       United Steelworkers, 647 F.2d at 1208 (quoting

Morgan, 313 U.S. at 421, 61 S. Ct. at 1004, 85 L. Ed. at 1435). Yet, the

appropriate inquiry does not center merely on whether a disinterested

observer could conclude an administrator acting in a rulemaking had in

some measure prejudged the merits of the proposed quasi-legislative

action.        Placing the Commission and its commissioners—and the

rulemaking in this case—in the proper context, we think a district court

may vacate a rulemaking on the ground of bias upon no less than a

showing by clear and convincing evidence that the administrator has

undertaken the agency action with an “unalterably closed mind,” thereby

making their action “motivated by an improper purpose.” See Ass’n of

Nat’l Advertisers, 627 F.2d at 1170.

        “This showing should focus on the agency member’s prejudgment,

if any, rather than a failure to weigh the issues fairly.” C & W Fish Co.,
                                           30

931 F.2d at 1564.         The showing should essentially demonstrate the

administrator was so predisposed to one position that they were

“unwilling to consider arguments to the contrary.” PLMRS Narrowband,

182 F.3d at 1002. Therefore, “[a]gencies are required to consider in good

faith, and to objectively evaluate, arguments presented to them; agency

officials, however, need not be subjectively impartial.”              Carolina Env’tl

Study Grp. v. United States, 510 F.2d 796, 801 (D.C. Cir. 1975); accord

United    Steelworkers,    647      F.2d    at     1209.     After     all,   “[a]gency

decisionmakers     are     appointed       precisely    to   implement        statutory

programs, and so inevitably have some policy preconceptions.”                       Lead

Indus. Ass’n, 647 F.2d at 1179. Thus, even favoring a specific rule over

another is not a basis for disqualification absent evidence that the

administrator’s    view    “could    not    be     changed    by     the   rulemaking

proceedings that were to follow.” Consumers Union, 801 F.2d at 427.

        Indeed, environmental statutes themselves often presume a certain

amount of institutional bias. See Env’tl Def. Fund v. Corps of Eng’rs, 470

F.2d 289, 295 (8th Cir. 1972) (“[W]e do not agree with the view implicit in

the contentions of appellants that [the National Environmental Policy

Act] requires agency officials to be subjectively impartial.”).               Far from

being    neutral   and     dispassionate         regarding   preservation      of    our

environment, a commissioner is expected to have a position in favor of

expanding environmental protections in all forms:

              “A Trade Commissioner should not be neutral on anti-
        monopoly policies, and a Securities and Exchange
        Commissioner should not be apathetic about the need for
        governmental restrictions.
             The theoretically ideal administrator is one whose
        broad point of view is in general agreement with the policies
        he administers.”
                                        31

Lead Indus. Ass’n, 647 F.2d at 1179 (quoting Kenneth Culp Davis,

Administrative Law Text § 12.01, at 247 (3d ed. 1972)). While extreme

singlemindedness in favor of a position that makes an administrator

“totally incapable of giving fair consideration to the issues that are

presented for decision” is likely unacceptable, participating in a

rulemaking with a preexisting policy position is well within the ambit of

permissible conduct, absent clear and convincing evidence to the

contrary. See id. at 1179, 1180; PLMRS Narrowband, 182 F.3d at 1002

(distinguishing    an   administrator’s      “unalterable   prejudgment”   and

“legitimate policy preconceptions”).

      Turning to the facts of this case, Farm Bureau emphasizes

Heathcote’s    preexisting    support    for   and   advocacy   of   a   robust

antidegradation policy.       Indeed, at all times during the rulemaking

proceedings, Farm Bureau argues, Heathcote actively advocated for the

antidegradation policy’s adoption. It bolsters this argument by pointing

out a number of similarities between the Iowa Environmental Council’s

proposed rule, which Heathcote helped draft, and the final rule adopted

by the Commission. Farm Bureau also maintains Heathcote’s salary was

a factor—asserting Heathcote’s job duties included “paid advocacy” and

likening her to a lobbyist.

      We observe that a similar challenge was rejected in Lead Industries

Association.      See 647 F.2d at 1174–80.            In that case, an EPA

administrator had previously worked as an attorney with the Natural

Resources Defense Council in a suit seeking to compel the EPA to list

lead as a hazardous air pollutant under the Clean Air Act. Id. at 1172.

See generally Natural Res. Def. Council, Inc. v. Train, 545 F.2d 320 (2d

Cir. 1976). After the EPA was required to list lead as an air pollutant,

the administrator joined the EPA’s staff and participated in the
                                       32

subsequent rulemaking that listed lead as a pollutant and prescribed the

maximum amounts of acceptable lead pollution in the atmosphere. Lead

Indus. Ass’n, 647 F.2d at 1172. The court rejected the Lead Industry

Association’s challenge to the rules based on the administrator’s

participation.

      The court observed that no other court had ever—under any

standard—disqualified an administrator from participating in an informal

rulemaking proceeding on the basis of policy bias.         Id. at 1179.   The

court concluded that “under the prejudgment test for rulemaking in

[Association of National Advertisers] . . . there can be no question but

that [the administrator’s] disqualification from the lead standards

rulemaking is unwarranted.” Id. at 1180.

      Here,      evidence   supports   a    conclusion   that    Commissioner

Heathcote had a preconceived position about the value of a muscular

antidegradation policy. As Farm Bureau points out, she was involved in

drafting policy for the Iowa Environmental Council and was instrumental

in drafting the 2007 rulemaking petition. We also agree that the final

rule adopted by the Commission was similar in some key aspects to the

proposed rule by the Iowa Environmental Council.            Nevertheless, the

similarities or differences are not evidence of bias. See Consumers Union,

801 F.2d at 427. Likewise, Farm Bureau has failed to proffer clear and

convincing evidence of an unalterably closed mind.

      We recognize factual distinctions exist between this case and Lead

Industries Association.     First, Heathcote’s participation both in crafting

the policy before being nominated to the Commission and during the

rulemaking proceedings was likely greater than the administrator’s in

Lead Industries Association.      See 647 F.2d at 1174.         While the D.C.

Circuit commented on the lack of evidence demonstrating any outside
                                     33

influence by the administrator, it proceeded to emphasize that as an

official expected to implement a policy for the executive, he was not

expected to be—and ideally should not be—neutral from a policy

standpoint. See id. at 1177–79. Of course, it does not seem the scope of

influence the challenged administrator had over a rule has ever been

dispositive.   The challenged administrator in C & W Fish Co. had a

considerable impact on the rulemaking proceedings, but the D.C. Circuit

held his participation was not improper. See 931 F.2d at 1559, 1564–65.

      Second, and perhaps more importantly, Heathcote continued her

employment with the Iowa Environmental Council.           Yet, we are not

persuaded that this would be a dispositive distinction. The Commission

contains built-in policy conflicts of interest. The statute provides five of

the nine commissioners must be actively engaged in or employed in—and

thereby presumably represent—certain industries that might conceivably

be subject to regulation by the Commission. See Iowa Code § 455A.6(1).

It would be anomalous to conclude that the other four commissioners

would not similarly be expected to bring with them both policy

experience and preconceived policy positions.      To paraphrase Justice

Rehnquist: Susan Heathcote’s years of experience and continued

employment as Water Policy Director for the Iowa Environmental Council

are the source of indispensable qualifications, not the source of

disqualifying bias. See Laird v. Tatum, 409 U.S. 824, 835, 93 S. Ct. 7,

13–14, 34 L. Ed. 2d 50, 59 (1972).

      Accordingly, we hold Commissioner Heathcote’s employment with

the Iowa Environmental Council—including her job duties of policy

research and advocacy—do not require us to vacate the antidegradation

policy.   The process of rulemaking simply does not give rise to the

standard of disqualification urged by Farm Bureau.
                                         34

       V. Disqualification of Commissioner La Seur.

       The Commission concedes La Seur was not an eligible elector on

December 15, 2009, when the Commission voted to adopt the

antidegradation policy. 5      Nonetheless, the Commission argues Iowa’s

long-standing de facto officer doctrine validates the Commission’s action

despite the failure of La Seur to qualify for office after she moved. Farm

Bureau responds the de facto officer doctrine is not without limit and

does not apply in this case. In the alternative, Farm Bureau asserts the

de facto officer doctrine was superseded by the 1998 IAPA amendments.

Specifically, Farm Bureau contends the doctrine is incompatible with the

amended form of section 17A.19(10)(e).

       A. De Facto Officer Doctrine.              The de facto officer doctrine

validates official action taken without legal authority by giving authority

to an official who lacks de jure authority to take official action. See Allen

v. State, 528 N.W.2d 583, 588 (Iowa 1995). In other words, “the acts of a

de facto officer are valid as to the public and third persons.” Waite v.

City of Santa Cruz, 184 U.S. 302, 322, 22 S. Ct. 327, 334, 46 L. Ed. 552,

566 (1902).       The de facto officer doctrine has been a key stitch in the

fabric of our common law since our earliest days of statehood. See State

ex rel. Rice v. Cnty. Judge, 7 Iowa (7 Clarke) 186, 195 (1858).               It has

“ancient origin,” Herbst v. Held, 194 Iowa 679, 684, 190 N.W. 153, 155

(1922), dating at least to an early English common law case called The

Abbé of Fountaine, Y.B. 9 Hen. 6, f. 32, pl. 3 (1431), see State v. Carroll,

38 Conn. 449, 458 (1871) (tracing the history of the doctrine through

English common law). Over time, the doctrine has achieved “practically

       5Because  the Commission concedes La Seur’s lack of qualifications, we need not
decide whether she was actually an “elector” at the time the Commission voted to adopt
the antidegradation policy.
                                             35

universal acceptance by the courts.” Herbst, 194 Iowa at 684, 190 N.W.

at 155. We applied this ancient doctrine as recently as 1997. See City of

Windsor Heights v. Spanos, 572 N.W.2d 591, 593–94 (Iowa 1997).

       At its core, the doctrine limits the ability of a plaintiff “to challenge

governmental action on the ground that the officers taking that action

are improperly in office.”         Andrade v. Lauer, 729 F.2d 1475, 1493–94

(D.C. Cir. 1984). It operates in a way that

       distinguishes between “collateral” attacks, in which plaintiffs
       attack government action on the ground that the officials
       who took the action were improperly in office, and “direct”
       attacks, in which plaintiffs attack the qualifications of the
       officer, rather than the actions taken by the officer.

Id. at 1496. 6 Under the doctrine, the legality of the officer’s qualifications
to hold office cannot be attacked collaterally as a means of invalidating

        6The distinction the de facto officer doctrine draws is itself distinct from the

more commonly used meanings of “direct” and “collateral,” as used, for instance, in the
context of whether a new constitutional rule applies retroactively. See, e.g., State v.
Ragland, 836 N.W.2d 107, 114 (Iowa 2013); Perez v. State, 816 N.W.2d 354, 358 (Iowa
2012). As used in the retroactivity inquiry, the terms distinguish between direct
appeals from an initial conviction or proposed application of a new constitutional rule in
a postconviction relief action, which by definition occurs when the underlying
conviction is “final.” Perez, 816 N.W.2d at 358. In other words, the direct–collateral
distinction ordinarily refers to when and in what proceeding a challenge may be
brought. The same is basically true in the context of a collateral attack on a court’s
exercise of personal jurisdiction over a civil defendant, although the distinction
contemplates different fora. See Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de
Guinee, 456 U.S. 694, 706, 102 S. Ct. 2099, 2106, 72 L. Ed. 2d 492, 504 (1982) (“A
defendant is always free to ignore the judicial proceedings, risk a default judgment, and
then challenge that judgment on jurisdictional grounds in a collateral proceeding.”).
         In contrast, the direct–collateral distinction in the context of the de facto officer
doctrine refers to the object of the attack—the officer’s qualifications to hold office or the
official action that is the result of the officer’s actions. In other words, instead of the
“when” or “where” of a challenge, the direct–collateral distinction focuses in the de facto
officer context on the “what” of the petitioner’s challenge. In Windsor Heights, for
example, we applied the de facto officer doctrine to a challenge to the authority of the
city attorney to prosecute a traffic case on direct review from the defendant’s conviction.
572 N.W.2d at 593–94. As we discuss below, challenges to official qualifications are
permitted through a narrow procedural framework that closely circumscribes the types
of persons who may bring an action. See Iowa R. Civ. P. 1.1302. In this regard, the
direct–collateral distinction also contemplates the “who” of a challenge in addition to the
                                          36

their official actions. Keeney v. Leas, 14 Iowa 464, 469 (1863); see also

Nat’l Ass’n of Greeting Card Publishers v. U.S. Postal Serv., 569 F.2d 570,

579 (D.C. Cir. 1976) (“In short, the remedy for improper composition is

not invalidation of the Commission’s action through indirect challenge,

but rather removal of the allegedly disqualified Commissioner by way of

direct attack.”), vacated on other grounds by 434 U.S. 884, 98 S. Ct. 253,

54 L. Ed. 2d 169 (1977). The doctrine is based on necessity and seeks to

protect the public by sustaining the orderly functions of government

despite some defect in the qualifications of an officer. Windsor Heights,

572 N.W.2d at 593; accord State v. Driscoll, 455 N.W.2d 916, 917 (Iowa

1990); Buck v. Hawley & Hoops, 129 Iowa 406, 409, 105 N.W. 688, 689

(1906).     Clearly, the doctrine adopts a practical approach to an

infrequent problem.        We have also observed that the de facto officer

doctrine “is consistent with the broader rule that presumes the validity of

official agency actions.” Allen, 528 N.W.2d at 588; see also Teleconnect

Co. v. Iowa State Commerce Comm’n, 404 N.W.2d 158, 162 (Iowa 1987)

(“An agency rule is presumed valid and the burden is on the party

challenging it to demonstrate that a ‘rational agency’ could not conclude

the rule was within the agency’s delegated authority.”).                 The United

States Supreme Court has explained that the public and third parties

“are not required to investigate” the officer’s title and “may safely act

upon the assumption” that the officer is legally in office. Waite, 184 U.S.

at 323, 22 S. Ct. at 334, 46 L. Ed. at 566. After all, citizens have a right

“to accept the law as it is written” and are not “required to determine its
_____________________
“what.” Consequently, the fact that the IAPA permits direct review of administrative
action, see Iowa Code § 17A.19, is immaterial. The point of our holding today is that
Farm Bureau did not fit its challenge within the narrow parameters that permit a court
to set aside agency action on the ground that the officer did not lawfully hold perfect
title to office.
                                      37

validity.”   Lang v. City of Bayonne, 68 A. 90, 92 (N.J. 1907).        Just as

citizens do not make the law, they should not bear the responsibility of

determining its validity. See id. “It is manifest that endless confusion

would result if in every proceeding before such officers their title could be

called in question.” Norton v. Shelby County, 118 U.S. 425, 442, 6 S. Ct.

1121, 1125, 30 L. Ed. 178, 186 (1886).

       Moreover, “the doctrine gives no weight to the public interest in

enforcing legal norms concerning eligibility and appointment to office and

individuals’ interests in having the government act against them only

through lawfully appointed agents.”        Andrade, 729 F.2d at 1497.         It

“assumes that an individual suffers no judicially cognizable injury when

he is the subject of adverse governmental action that is legitimate in all

respects save that the official taking the action lacks lawful title to office.”

Kathryn A. Clokey, Note, The De Facto Officer Doctrine: The Case for

Continued Application, 85 Colum. L. Rev. 1121, 1122 (1985) [hereinafter

Clokey]; see also Hussey v. Smith, 99 U.S. (9 Otto) 20, 24, 25 L. Ed. 314,

315 (1878) (“The acts of [de facto] officers are held to be valid because the

public good requires it. The principle wrongs no one.”). But see Ryder v.

United States, 515 U.S. 177, 182–83, 115 S. Ct. 2031, 2035, 132

L. Ed. 2d 136, 143 (1995) (holding an individual who makes a timely

challenge to a judicial officer based on the Appointments Clause is

entitled to a determination of the merits of his claim).

       The doctrine “applies where a qualified official, by technical

infirmity, does not validly hold the official position.”     Windsor Heights,

572 N.W.2d at 593–94.

              In order to support the acts of one on the ground that
       he is a de facto officer, they must be done under color of the
       office, the duties of which must have been assumed and
       discharged by the person claiming to fill the office.
                                     38

Bailey v. Fisher, 38 Iowa 229, 231 (1874). There must be a de jure office

in order for the court to find the officer to be one de facto.       Town of

Decorah v. Bullis, 25 Iowa 12, 18 (1868); accord Norton, 118 U.S. at 441,

6 S. Ct. at 1125, 30 L. Ed. at 186 (“[T]here can be no officer, either

de jure or de facto, if there be no office to fill.”). The duties performed by

the de facto officer must also be within the powers of the office.        See

Bailey, 38 Iowa at 231. Early cases assumed color of appointment or

election was also a necessary element of the doctrine’s application. See

Herkimer v. Keeler, 109 Iowa 680, 683, 81 N.W. 178, 179 (1899); Carroll,

38 Conn. at 471–72.       Yet, we later held an appointment or election

establishing color of title is not indispensable. Buck, 129 Iowa at 409,

105 N.W. at 689.

      In the past, we have applied the doctrine to a variety of defects in

official title. Some instances in which we have applied the doctrine have

surely been minor technical infirmities of those who otherwise clearly

had color of title to their office. See State v. Sheets, 291 N.W.2d 35, 37

(Iowa 1980) (applying the doctrine to a county attorney who, following

election to the office, failed to submit a written oath with his bond); Bd.

of Dirs. v. Cnty. Bd. of Educ., 257 Iowa 106, 112, 131 N.W.2d 802, 806

(1964) [hereinafter Grimes Indep. Sch. Dist.] (applying the doctrine to

members of the board of directors of a school district who performed

three years of board functions before being sworn in as required by

statute); State ex rel. Hartnett v. Powell, 101 Iowa 382, 385–86, 70 N.W.

592, 593 (1897) (applying the doctrine to school board directors who took

a required oath from a person not legally authorized to administer the

oath); Wheeler & Wilson Mfg. Co. v. Sterrett, 94 Iowa 158, 159, 62 N.W.

675, 675–76 (1895) (applying the doctrine to a deputy county clerk who

had been appointed by the clerk, but the board of supervisors had not
                                    39

approved the appointment, and the deputy had not given bond required

by statute); State ex rel. Rice, 7 Iowa (7 Clarke) at 195 (applying the

doctrine to ex officio judges of election results who had failed to take the

statutorily required oath).

      In each of these cases, the application of the doctrine was obvious.

Yet, we have never downplayed the importance of the requisite

qualification for officials to act. For example, we have not ignored the

importance of officials taking the oath of office. See Grimes Indep. Sch.

Dist., 257 Iowa at 113, 131 N.W.2d at 806; State ex rel. Hartnett, 101

Iowa at 386, 70 N.W. at 593.      To the contrary, we have stressed the

necessity and justice of the doctrine’s application on behalf of the public

and third parties. See Grimes Indep. Sch. Dist., 257 Iowa at 113, 131

N.W.2d at 806.

      We have also applied the doctrine to more serious errors in election

or appointment. See State v. Cent. States Elec. Co., 238 Iowa 801, 818,

28 N.W.2d 457, 466 (1947) (applying the doctrine to a mayor and city

councilman who accepted positions as trustees contended to be

incompatible with their municipal offices); Cowles v. Indep. Sch. Dist.,

204 Iowa 689, 698–99, 216 N.W. 83, 87–88 (1927) (applying the doctrine

to two school board members appointed to fill the vacancies of two

current school board members who had already resigned, thereby

technically depriving the board of a quorum); Metro. Nat’l Bank v.

Commercial State Bank, 104 Iowa 682, 687, 74 N.W. 26, 28 (1898)

(applying the doctrine to a clerk of court who accepted a position as

receiver for a bank in insolvency proceedings before the court at which

he worked, allegedly disqualifying him from continuing to serve as clerk).

Some of these cases suggest the specter of a lurking conflict of interest

between incompatible positions.     See, e.g., Cent. States Elec. Co., 238
                                    40

Iowa at 818, 28 N.W.2d at 466; Metro. Nat’l Bank, 104 Iowa at 687, 74

N.W. at 28. We also applied the doctrine to a peace officer who had failed

to undergo a statutorily required psychological evaluation. Driscoll, 455

N.W.2d at 918.

      Furthermore, we have opined that the doctrine could validate the

acts of a quasi-official when the public relied on the official’s consistent

assertions of authority. See Buck, 129 Iowa at 408–09, 105 N.W. at 689.

Additionally, we have even applied the doctrine to factual situations in

which an officer’s lack of lawful title to office arguably implicated larger

concerns, such as due process.      See Windsor Heights, 572 N.W.2d at

593–94 (applying the doctrine to a city attorney who did not actually

have contractual authority to prosecute a traffic violation occurring in a

neighboring city under chapter 32B, which allows political subdivisions

to contract with each other for the performance of governmental services

for mutual advantage); Allen, 528 N.W.2d at 588 (applying the doctrine to

appeals committee members who were appointed by the director of the

department of personnel in violation of a statute requiring appointment

by the personnel commission); Koss v. City of Cedar Rapids, 271 N.W.2d

730, 737 (Iowa 1978) (applying the doctrine to a district judge whose

term as assistant chief judge, and thus whose authority to appoint a

district associate judge in a condemnation proceeding, had expired).

      Similarly, federal courts have applied the doctrine to pure

challenges to the constitutional propriety of an appointment or what has

been called attempts to “enforc[e] legal norms concerning eligibility and

appointment to office.” Andrade, 729 F.2d at 1497. For example, the

United States Supreme Court validated all pre-1976 actions by the

Federal Election Commission, even though its members were appointed

unconstitutionally in violation of the Appointments Clause of Article II,
                                    41

Section 2, Clause 2. Buckley v. Valeo, 424 U.S. 1, 142–43, 96 S. Ct. 612,

693, 46 L. Ed. 2d 659, 758 (1976), superseded by statute on other

grounds as recognized in McConnell v. FEC, 540 U.S. 93, 124 S. Ct. 619,

157 L. Ed. 2d 491 (2003). Perhaps most dramatically, the United States

Supreme Court applied the doctrine to the actions of the insurrectionist

government of civil-war-era Texas. See Texas v. White, 74 U.S. (7 Wall.)

700, 732–33, 19 L. Ed. 227, 240 (1868). These dramatic applications of

the de facto officer doctrine are possible in part because courts are

cognizant of what the consequences of declaring a government actor

without power entails. Cf. Luther v. Borden, 48 U.S. (7 How.) 1, 38–39,

12 L. Ed. 581, 597–98 (1849) (applying the political question doctrine to

the martial law used by the charter government of Rhode Island during

the Dorr Rebellion in part because of the consequences associated with

effectively declaring one proffered government illegal). The Luther Court

reasoned:

      [T]he question presented is certainly a very serious one: For,
      if this court is authorized to enter upon this inquiry as
      proposed by the plaintiff, and it should be decided that the
      charter government had no legal existence during the period
      of time above mentioned,—if it had been annulled by the
      adoption of the opposing government,—then the laws passed
      by its legislature during that time were nullities; its taxes
      wrongfully collected; its salaries and compensation to its
      officers illegally paid; its public accounts improperly settled;
      and the judgments and sentences of its courts in civil and
      criminal cases null and void, and the officers who carried
      their decisions into operation answerable as trespassers, if
      not in some cases as criminals.

Id. at 38–39, 12 L. Ed. at 597.

      Historical application of the doctrine—both inside and outside of

this state—reveals it is not uniquely reserved for mere minor oversights.

As Judge Learned Hand commented, “It is not wholly clear how far the

conditions upon a[n] [official’s] qualifications may be absent and his acts
                                           42

still be immune from collateral attack.” Johnson v. Manhattan Ry., 61

F.2d 934, 938 (2d Cir. 1932).

       However, the doctrine has its limits.                 For example, we have

recognized it does not apply to a third person who “is chargeable with the

knowledge of the defect in the title of a claimed officer to his office.”

Heyland v. Wayne Indep. Sch. Dist. No. 5, 231 Iowa 1310, 1314, 4 N.W.2d

278, 280 (1942); accord Herkimer, 109 Iowa at 684, 81 N.W. at 179; State

v. Mayor of Jersey City, 44 A. 709, 712 (N.J. 1899). The “appearance of

right is the essence of a de facto officer’s authority, [and] ‘[i]f an official’s

claim to office is known to be unlawful, the notoriety of his title defect

prevents a finding of color of authority.’ ” Sierra Club v. Castle & Cooke

Homes Hawai’i, Inc., 320 P.3d 849, 865 (Haw. 2013) (quoting Clokey, 85

Colum. L. Rev. at 1123). If the defect in the authority of a public official

was known to the public, then the doctrine does not apply. See id. at

868. Nevertheless, in this case, there was no allegation that La Seur’s

lack of elector status was notorious during the time the Commission

considered and approved the antidegradation policy. 7

       A very important factor in the application of the de facto officer

doctrine can be drawn from two cases we decided involving peace officers
who had arrested persons for the crime of operating a motor vehicle while


        7Of course, La Seur herself might have been put on notice that she lost her

elector status by registering to vote in Montana. See Millwright v. Romer, 322 N.W.2d
30, 33 (Iowa 1982) (“Every citizen is assumed to know the law and is charged with
knowledge of the provisions of statutes.”). However,
                [s]ince the primary purpose of the doctrine is to protect the public
       and the government agencies which act in reliance on the validity of an
       officer’s actions, the fact that the officer himself knew or should have
       known that he lacked official authority would not be dispositive of the
       issue. More directly pertinent is the appearance to others at the time.
EEOC v. Sears, Roebuck & Co., 650 F.2d 14, 18 (2d Cir. 1981).
                                      43

intoxicated prior to the time they had completed all the required law

enforcement training. In State v. Palmer, we held a peace officer who had

not completed the required statutory course of instruction relating to the

processing of drivers suspected of operating a motor vehicle while

intoxicated was not a de facto officer for purposes of invoking the

implied-consent statute. 554 N.W.2d 859, 864–65 (Iowa 1996); see also

Iowa Code § 321J.1(7) (1995) (defining “peace officer” to include “[a]ny

other law enforcement officer who has satisfactorily completed an

approved course relating to motor vehicle operators under the influence

of alcoholic beverages at the Iowa law enforcement academy or a law

enforcement training program approved by the department of public

safety”).   The de facto officer doctrine did not apply to validate the

invocation of the implied-consent procedures because the lack of

qualifications went “to the heart of section 321J.1(7)(e).”      Palmer, 554

N.W.2d at 865.     In other words, the peace officer was not “ ‘otherwise

trained for and certified to administer the test.’ ” Id. (quoting Driscoll, 455

N.W.2d at 918).

      In contrast, in Driscoll, a peace officer had completed the required

implied-consent training, but had not yet completed a psychological

evaluation required for all peace officers prior to employment.           455

N.W.2d at 917–18.       We held the de facto officer doctrine applied to

validate the administration of the blood-alcohol test by the officer

because the disqualification at issue did not undermine the ability of the

officer to properly administer the test and protect the public from being

subjected to inaccurate and indiscriminate testing. See id. at 918.

      These two cases make it very clear that the de facto officer doctrine

is not applied when the particular disqualification at issue undermines

the integrity and confidence demanded in actions taken or decisions
                                      44

made by government. See Clokey, 85 Colum. L. Rev. at 1135 (“Although

the de facto officer doctrine generally denies individuals an interest in

enforcing title requirements, the doctrine should not apply when a

qualification for specific office aims to protect the individuals subject to

that official’s authority.”). In Palmer, the lack of qualifications threatened

the basic objective of the implied-consent procedures, but the lack of

qualifications in Driscoll did not.    When the disqualification does not

undermine the integrity and confidence of the action taken or the

decision made by government, it would be contrary to the public good to

allow the action to be collaterally attacked. Driscoll, 455 N.W.2d at 918.

This distinction is critical to the ultimate resolution in this case.

      This approach is also consistent with the approach taken by other

courts and commentators. One commentator has said:

             When a court considers a collateral title challenge, it
      should discern the policies embodied in the particular
      requisite to office and determine whether they are designed
      to protect the interests of individuals appearing before such
      officers or to protect the administration of government.

See Clokey, 85 Colum. L. Rev. at 1138. Other courts follow this model.

See Fair Political Practices Comm’n v. Californians Against Corruption, 134

Cal. Rptr. 2d 659, 665 (Ct. App. 2003); Daniels v. Indus. Comm’n, 775

N.E.2d 936, 940 (Ill. 2002) (plurality opinion); id. at 946 (McMorrow, J.,

specially concurring); In re Fichner, 677 A.2d 201, 206–07 (N.J. 1996).

      This approach also resembles the rule of the United States

Supreme Court decision in Glidden Co. v. Zdanok, which indicated the

de facto officer rule did not apply when the qualification for an officer

embodied “a strong public policy” concerning the proper administration

of government or was “based upon nonfrivolous constitutional grounds.”

370 U.S. 530, 535–36, 82 S. Ct. 1459, 1465, 8 L. Ed. 2d 671, 678–79
                                    45

(1962) (plurality opinion).   A similar reason can be found in American

Construction Co. v. Jacksonville, Tampa & Key West Railway, 148 U.S.

372, 387–88, 13 S. Ct. 758, 764–65, 37 L. Ed. 486, 492 (1893), although

the de facto doctrine was not specifically identified.     In that case, a

statute prohibited a judge whose order was before the court of appeals

from sitting on the panel reviewing the order. Id. at 387, 13 S. Ct. at

764, 37 L. Ed. at 492; see Circuit Court of Appeals Act of 1891, ch. 517,

§ 3, 26 Stat. 826, 827 (1891) (“[N]o justice or judge, before who a cause

or question may have been tried or heard in a district court . . . shall sit

on the trial or hearing of such cause or question in the circuit court of

appeals.”); see also 28 U.S.C. § 47 (2012) (“No judge shall hear or

determine an appeal from the decision of a case or issue tried by him.”).

Without mentioning the doctrine, the Court reasoned:

      If the statute made him incompetent to sit at the hearing,
      the decree in which he took part was unlawful, and perhaps
      absolutely void, and should certainly be set aside or quashed
      by any court having authority to review it by appeal, error, or
      certiorari.

Am. Constr. Co., 148 U.S. at 387, 13 S. Ct. at 764, 37 L. Ed. at 492.

      Similarly, the Supreme Court has held:

      [O]ne who makes a timely challenge to the constitutional
      validity of the appointment of an officer who adjudicates his
      case is entitled to a decision on the merits of the question
      and whatever relief may be appropriate if a violation indeed
      occurred.

Ryder, 515 U.S. at 182–83, 115 S. Ct. at 2035, 132 L. Ed. 2d at 143.

The Court explained, “Any other rule would create a disincentive to raise

Appointments Clause challenges with respect to questionable judicial

appointments.” Id. at 183, 115 S. Ct. at 2035, 132 L. Ed. 2d at 143.

      In this case, it is difficult to discern with precision the underlying

objective or policy the legislature had in mind in imposing the
                                     46

requirement for commissioners to be electors. The legislature could have

wanted Commission members to be electors in order to help determine

with greater accuracy the required political balance for the Commission,

to help ensure members were engaged Iowa citizens, in order to help

ensure members were connected by residency to Iowa, or other reasons.

Overall, the reasonableness of the requirement is likely derived from the

perspective that the state would not want Commission members with

little or no contact to the state making rules governing Iowans. Thus, it

is reasonable to view the purpose of the requirement as consistent with

this perspective.   Nevertheless, there is nothing to suggest the elector

requirement was designed to protect individuals who may be subjected to

the authority of a public official or to protect the orderly administration

of government.

       Importantly, La Seur was an elector when appointed to the

Commission.      This is important because the policy of the requirement

was clearly satisfied in the inception. While La Seur subsequently lost

her status as an elector when she moved from the state, the move did not

totally undermine the objectives of the requirement that were initially

met.   The move did not eviscerate her background and qualifications.

Moreover, the challenged vote cast by La Seur occurred only five months

after she left Iowa, and the vote took place at a time when she still owned

a home in Iowa. It is very difficult to see, in reality, how La Seur was less

fit to consider the rule adopted by the Commission five months after she

left the state when she continued to participate in every Commission

hearing in person or by telephone. The facts of this case fall well short of

those in Palmer, in which the officer was never properly trained to

perform the task at issue in the first place and the purpose of the
                                      47

statutory qualifications were undermined by the failure to qualify.

Instead, the facts fit more with Driscoll.

      It is also important to keep in mind that the qualifications to be an

elector do not exist for the benefit of an individual or to protect an

individual from the authority of a public officer. Additionally, the case

does not implicate any constitutional challenge. The Commission serves

all Iowans and the action sought to be declared invalid by Farm Bureau

would affect all Iowans. The very purpose of the de facto officer doctrine

is to ensure the orderly function of government despite defects in the

qualifications of an officer when the defects are minor or technical.

Ryder, 515 U.S. at 180–81, 115 S. Ct. at 2034, 132 L. Ed. 2d at 142. We

think the public policy of this state requires the vote cast by La Seur five

years ago to approve the rules be considered valid today, and we decline

to undo all that has been done because she was not an elector at the

time of the vote. Under all the circumstances, there is a stronger public

policy to maintain the orderly functioning of government than the policy

to undo the process of government based on a defect.

      In truth, the public policy behind the de facto officer doctrine is

found throughout government.        For example, in the area of criminal

prosecution, we do not reverse a conviction in a criminal case on appeal

merely because a legal error occurred at trial. See State v. Peterson, 663

N.W.2d 417, 430 (Iowa 2003). If we did not take this practical approach

to the operation of government, chaos and uncertainty could prevail. To

err is human, and errors in the process of government that are

nonprejudicial and technical in nature should not require government

action predicated on that error to be undone.

      The situation presented in this case is comparable to that of an

elected official who fails to properly take the oath of office.    For 150
                                    48

years, we have rejected every claim that government action must be

invalidated when an official failed to properly take the oath of office. See

Sheets, 291 N.W.2d at 37 (dealing with a county attorney who failed to

submit a written oath); Grimes Indep. Sch. Dist., 257 Iowa at 112, 131

N.W.2d at 806 (concerning school board members who did not take the

oath); State ex rel. Hartnett, 101 Iowa at 386, 70 N.W. at 593 (dealing

with school board members who took oath of office from an individual

not authorized to administer it); State ex rel. Rice, 7 Iowa (7 Clarke) at

195 (dealing with ex officio judges of election results who failed to take

the statutorily required oath).    The oath of office is a fundamental

requirement, but it does not otherwise undermine action taken by an

official who failed to properly take the oath if the official otherwise

understood the duties of the office and the requirements to perform those

duties.   The de facto officer doctrine seeks practicality and is applied

when the defect at issue did not undermine the administration of

government or an individual’s rights. In this case, the defect did neither.

      Finally, we have previously applied the de facto officer doctrine to

residency requirements of a kind. See Rich Mfg. Co. v. Petty, 241 Iowa

840, 842, 846, 42 N.W.2d 80, 81, 84 (1950) (applying the doctrine when

one member of a county board of supervisors was not a freeholder and

other members were not adequately representative of certain townships).

Farm Bureau emphasizes the need for “geographical . . . boundaries” to

the de facto officer doctrine. In this regard, Farm Bureau imagines an

elaborate scenario in which La Seur could move to a foreign country and

renounce her American citizenship, and yet the Commission would still

assert the doctrine applies. Of course, nothing in section 455A.6 beyond

the elector requirement suggests actual residency is a qualification of

office. Compare Iowa Code § 455A.6, with id. § 39.27 (“An elected official
                                     49

shall continue to be a resident of the state, district, county, township,

city, or ward by or for which the person was elected, or in which the

duties of the office are to be exercised for the duration of the term of

office.”).

       Our result in Rich Manufacturing is in accord with many other

courts considering whether the de facto officer doctrine applies to elector

and residency requirements. See, e.g., Gwin v. State, 808 So. 2d 65, 67

(Ala. 2001); Gates v. City of Tenakee Springs, 954 P.2d 1035, 1038

(Alaska 1998); Juliani v. Darrow, 119 P.2d 565, 568 (Ariz. 1941); Brown

v. Anderson, 198 S.W.2d 188, 191 (Ark. 1946); People ex rel. Hoffman v.

Hecht, 38 P. 941, 944 (Cal. 1895); State ex rel. James v. Deakyne, 58

A.2d 129, 131 (Del. Super. Ct. 1948); Hagood v. Hamrick, 157 S.E.2d

429, 430–31 (Ga. 1967); State v. Duncan, 54 N.E. 1066, 1066–67 (Ind.

1899); Patterson v. Miller, 59 Ky. 493, 496 (1859); State v. White, 101 So.

136, 140 (La. 1924); Baker v. State, 833 A.2d 1070, 1086 (Md. 2003);

Greyhound Corp. v. Mich. Pub. Serv. Comm’n, 104 N.W.2d 395, 401–02

(Mich. 1960); Bird v. State, 122 So. 539, 540 (Miss. 1929); In re Oak St.,

273 S.W. 105, 109 (Mo. 1925); Prescott v. Hayes, 42 N.H. 56, 58–59

(1860); State ex rel. Newman v. Jacobs, 17 Ohio 143, 152–53 (1848);

Franks v. Ponca City, 38 P.2d 912, 913 (Okla. 1934); Graham v. Sch. Dist.

No. 69, 54 P. 185, 187 (Or. 1898); Dove v. Kirkland, 75 S.E. 503, 507

(S.C. 1912); Roche v. Jones, 12 S.E. 965, 966 (Va. 1891); Green Mountain

Sch. Dist. No. 103 v. Durkee, 351 P.2d 525, 528 (Wash. 1960); State

ex rel. Schneider v. Darby, 190 N.W. 994, 998 (Wis. 1922); Crawford v.

City of Sheridan, 392 P.2d 519, 520 (Wyo. 1964).       But see Orndorff v.

Potter, 25 S.E.2d 911, 912 (W. Va. 1943) (recognizing a nonresident who

receives the most votes for elected office does not hold the office, but not

discussing the de facto officer doctrine).
                                    50

      In the final analysis, the practical nature of the de facto officer

doctrine supports our conclusion to uphold the validity of the

Commission action taken in this case.         The only real support for a

contrary conclusion is found in the failure of La Seur to maintain her

required status as an elector. Yet, the de facto officer doctrine exists to

validate official action when an underlying requirement is not satisfied.

Thus, the mere failure to qualify is not enough.            Moreover, the

disqualification in this case did not undermine the integrity and

confidence in the process followed by the Commission or in the

Commission decision. When La Seur lost her status as an elector, the

loss did not render her unqualified to do her job.

      We understand a different scenario or fact situation can be

proposed that would render the application of the de facto officer

doctrine inappropriate. Such a proposition, however, does not serve to

undermine the appropriate application of the doctrine under the facts of

this case. Thus, we confine our analysis to the facts of this case, as we

are required to do, and apply the law consistently with its application in

the past.    The de facto officer doctrine has served a valid role in

maintaining the government process since the earliest years of our

statehood, and it continues to do so today.

      B. Amendment to IAPA. We next turn to the argument by Farm

Bureau that the 1998 amendments to the IAPA abrogated the de facto

officer doctrine. The IAPA establishes the exclusive means for a person

or party adversely affected by agency action to seek judicial review. Iowa

Code § 17A.19. Prior to 1998, the Act permitted a court to reverse or

grant other relief from agency action when, among other reasons, it was

“[a]ffected by other error of law.” See Iowa Code § 17A.19(8)(e) (1997). In

1998, the statute was amended to require a court to reverse, modify, or
                                    51

grant other relief when “[t]he product of the decision making undertaken

by persons who were improperly constituted as a decision-making body,

were   motivated    by   an   improper   purpose,    or   were   subject   to

disqualification” if the court determines the infirmity in the agency action

“prejudiced” the “substantial rights” of the person seeking judicial relief.

1998 Iowa Acts ch. 1202, § 24 (codified at Iowa Code § 17A.19(10)(e)

(2011)). The gist of Farm Bureau’s argument is that the de facto officer

doctrine is now incompatible with section 17A.19(10)(e), and has been

abolished by implication.

       When the legislature amends a statute, we have said that “any

material change in the language of a statute is presumed to alter the

law.” State v. Ahitow, 544 N.W.2d 270, 273 (Iowa 1996). Moreover, “[t]he

common law may be repealed by implication in a statute that plainly

expresses the legislature’s intent to do so.”       Atwood v. Vilsack, 725

N.W.2d 641, 644–45 (Iowa 2006).

       Yet, “[c]onstitutional or statutory provisions do not repeal the

common law by implication unless the intention to do so is plain.” Iowa

Civil Liberties Union v. Critelli, 244 N.W.2d 564, 568 (Iowa 1976).

       “To the contrary, the legislature will be presumed not to
       intend to overturn long-established principles of law, and the
       statute will be so construed, unless an intention to do so
       plainly appears by express declaration or necessary or
       unmistakable implication, and the language employed
       admits of no other reasonable construction.”

Ritter v. Dagel, 261 Iowa 870, 879, 156 N.W.2d 318, 323 (1968) (quoting

50 Am. Jur. Statutes § 340, at 333), superseded by rule as stated in In re

Estate of Steinberg, 443 N.W.2d 711, 712 (Iowa 1989); accord Wilson, 165

N.W.2d at 822; cf. State v. Osborn, 368 N.W.2d 68, 69–70 (Iowa 1985)

(“We start with the premise that changes made by revision of a statute

will not be construed as altering the law unless the legislature’s intent to
                                     52

accomplish a change in its meaning is clear and unmistakable.”). After

all, some statutes “are merely declaratory of the common law.” Wilson,

165 N.W.2d at 822; see also City of Hiawatha v. Reg’l Planning Comm’n,

267 N.W.2d 31, 32 (Iowa 1978) (“The statute merely codifies the

common-law rule.”).      Additionally, “[w]e are obliged . . . to interpret

statutes in conformity with the common law wherever statutory language

does not directly negate it.” Cookies Food Prods., Inc. v. Lakes Warehouse

Distrib., Inc., 430 N.W.2d 447, 452 (Iowa 1988). Thus, our focus is on

the intent of the legislature.

      In this case, there is simply no indication the legislature intended

to abolish the de facto officer doctrine when it amended section

17A.19(10)(e). Section 17A.19(10)(e) does not mention the de facto officer

doctrine, and we recognize the legislature certainly understands the

venerable role of the de facto officer doctrine that has been embedded

throughout our law. For example, in the area of disputes over title to

land, it specifically applied the doctrine by providing:

              In all actions and controversies involving the question
      of title to a parcel held under a county treasurer’s deed, all
      acts of assessors, treasurers, auditors, supervisors, and
      other officers de facto shall be of the same validity as acts of
      officers de jure.

Iowa Code § 448.14 (emphasis added).            Considering the historical

presence of the de facto officer doctrine in our law, it is very unlikely the

legislature would have intended to uproot and abrogate it by simply

identifying the grounds for judicial review in greater specificity.

      We also think it is significant that the leading authority on

administrative procedure law did not mention any claim or theory in his

treatise on the Act following the 1998 amendments to indicate the

amendments were intended to abrogate the de facto officer doctrine. In
                                         53

fact, Professor Bonfield’s comment on the amended section 17A.19(10)(e)

was limited to a single sentence: “Paragraphs (d) and (e) are beneficial,

clarifying elaborations of current IAPA § 17A.19(8) paragraphs (d)-(e).”

Arthur E. Bonfield, Proposed New Iowa Administrative Procedure Act (SF

2404)      with   Comments by Reporter-Draftsman            192    (1996);   accord

Arthur E. Bonfield, Amendments to Iowa Administrative Procedure Act

(1998), Chapter 17A, Code of Iowa (House File 667 as Adopted) Report on

Selected Provisions to Iowa State Bar Association and Iowa State

Government 64 (1998) (“Paragraphs (d) and (e) are beneficial, clarifying

elaborations of original IAPA section 17A.19(8)(d)-(e).”). 8          At the same

time, Professor Bonfield provided valuable and detailed comment on

other amendments to section 17A.19.             We think the nation’s leading

authority on administrative law, who has been instrumental over the

years in assisting the Iowa legislature in drafting its Act, would have

devoted considerable commentary and analysis to section 17A.19 (10)(e)

if the purpose of the 1998 amendments was to abrogate an important,

centuries-old common law doctrine that is deeply embedded into our law.

        In contrast, in Estate of Woodroffe, we reasoned that the drafters of

1984 Model Business Corporation Act (upon which our legislature based
the Iowa Act) expressly stated “they intended to do away with the de facto

corporation concept through provisions mirroring” Iowa Code sections

490.203 and 490.204.           742 N.W.2d 94, 103 (Iowa 2007) (citing 5

Matthew G. Doré, Iowa Practice Series, Business Corporations § 16:9

(2007)).       Unlike the statutes in Estate of Woodroffe, the IAPA



        8Theprevious version of the statute permitted reversal of an agency decision
when it was “(d) [m]ade upon unlawful procedure” or “(e) [a]ffected by other error of
law.” Iowa Code § 17A.19(8) (1997).
                                             54

amendments were merely intended to clarify the scope of the previous

statute. 9

       Finally, our rule that presumes the legislature intended to change

legal rights and construction of statutory terms by amending the

statutory text does not impact this case. We have said in the past, “ ‘The

legislature is presumed to know the state of the law, including case law,

at the time it enacts a statute.’ ”           Welch v. Iowa Dep’t of Transp., 801

N.W.2d 590, 600 (Iowa 2011) (quoting State v. Jones, 298 N.W.2d 296,

298 (Iowa 1980)). Similarly,


       9We  recognize many issues are presented by the amendments to the IAPA, but
these issues do not impact the de facto officer doctrine. We need not determine the
precise meaning of “improperly constituted.” Iowa Code § 17A.19(10)(e). After all, our
inquiry today is only whether a clear legislative intent to overrule a century-and-a-half
of caselaw plainly appears. See Ritter, 261 Iowa at 879, 156 N.W.2d at 323. It does
not. In all likelihood, of course, an improperly constituted board is probably one that
does not have quorum to act. Setting aside action taken without quorum is a
reasonable application of section 17A.19(10)(e). Nor would the de facto officer doctrine
apply in such a case, as the board as a whole is the problem, not the credentials of an
isolated board member.
         Interestingly, section 455A.6(5) itself provides that “[a] majority of the members
of the commission is a quorum, and a majority of a quorum may act in any matter
within the jurisdiction of the commission, unless a more restrictive rule is adopted by
the commission.” Iowa Code § 455A.6(5) In this case, all nine members of the
Commission were present at the vote regarding the antidegradation policy. Clearly, a
quorum existed. Similarly, section 455A.6 itself would seemingly only require five votes
in favor of the antidegradation policy. See id. § 455A.6(1). Because we have determined
Heathcote’s vote in favor of the rule was not improper, any inquiry into whether
La Seur’s participation was acceptable is conceivably moot. In this way, Farm Bureau’s
“substantial rights . . . have [not] been prejudiced.” Iowa Code § 17A.19(10); see also
City of Des Moines v. Pub. Emp’t Relations Bd., 275 N.W.2d 753, 759 (Iowa 1979)
(indicating the “substantial rights” language in the IAPA is “analogous to the harmless
error rule”). Of course, as we mentioned above, our decision in Wilson rejected the view
that a conflicted official’s participation is not insulated from scrutiny merely by not
being the deciding vote. See 165 N.W.2d at 819–20. Arguably, Wilson applies here as
well. Surely, however, a plain reading of Wilson reveals its reasoning is limited to
conflicts of interest and has nothing to do with good-faith participation by an official in
spite of a technical inability to hold office. See id. at 819 (“[A] vote case in violation of a
conflict of interest statute, even if immaterial to the outcome, vitiates the proceeding.”
(Emphasis added.)). Notwithstanding, no party has made such an argument, and we do
not consider it further here.
                                     55
      “The legislature is presumed to know the prior construction
      of terms in the original act, and an amendment substituting
      a new term or phrase for one previously construed indicates
      that the judicial or executive construction of the former term
      or phrase did not correspond with the legislative intent and a
      different interpretation should be given the new term or
      phrase. Thus, in interpreting an amendatory act there is a
      presumption of change in legal rights. This is a rule peculiar
      to amendments and other acts purporting to change the
      existing statutory law.”

State ex rel. Palmer v. Bd. of Supervisors, 365 N.W.2d 35, 37 (Iowa 1985)

(quoting 1A Sutherland, Statutory Construction § 22.30, at 178 (4th ed.

1973)). Thus, an amendment to statutory text following our construction

of the text raises a presumption that the legislature intended to alter the

rights explained by our cases. See Postell v. Am. Family Mut. Ins. Co.,

823 N.W.2d 35, 49 (Iowa 2012). In the present case, we decided three

de facto officer doctrine cases in the years immediately preceding the

1998 amendments, and the court of appeals decided one. See Windsor

Heights, 572 N.W.2d at 593–94; Palmer, 554 N.W.2d at 865–66; Allen,

528 N.W.2d at 587–88; Glawe v. Ohlendorf, 547 N.W.2d 839, 842 (Iowa

Ct. App. 1996). However, none of these cases purport to interpret the

predecessor of section 17A.19(10)(e). See Windsor Heights, 572 N.W.2d

at 593–94; Palmer, 554 N.W.2d at 865–66; Allen, 528 N.W.2d at 587–88.

Indeed, three of the four involved officers not subject to the Administrative

Procedure Act. See Windsor Heights, 572 N.W.2d at 593–94; Palmer, 554

N.W.2d at 865–66; Glawe, 547 N.W.2d at 842. Only Allen involved the

IAPA, but we did not interpret section 17A.19(8)(e) in that case. See 528

N.W.2d at 587–88. Unlike Postell, nothing about the statutory text or the

timing of the amendments suggests an intention to abolish our de facto

officer doctrine by amending section 17A.19(8)(e).

      In this case, the legislature merely identified specific challenges to

agency action in the amendments to section 17A.19(8)(e), some of which
                                    56

may overlap challenges considered under the de facto officer doctrine as

not serious enough to warrant overturning the official action that is

challenged.   The statute only directs the court to grant relief from an

agency decision by a person who was disqualified when substantial

rights of the petitioner were prejudiced because of the infirmity.     This

standard, as we have identified, is entirely consistent with the standard

governing the de facto officer doctrine. Compare Iowa Code § 17A.19(10)

and City of Des Moines v. Pub. Emp’t Relations Bd., 275 N.W.2d 753, 759

(Iowa 1979), with Windsor Heights, 572 N.W.2d at 593–94.             Under

section 17A.19(10)(e), as under the de facto officer doctrine, minor or

technical infirmities that did not prejudice the substantial rights of those

affected by the decision do not permit courts to grant relief. See Iowa

Code § 17A.19(10)(e).   Thus, the statute works hand-in-hand with the

amended statute. It is not inconsistent with the continuing purpose of

the doctrine, and it does not undermine the application of the doctrine.

Instead, the doctrine continues to play an important role in the operation

of the government in this state and recognizes that the grounds for relief

from official action does not always mean those grounds are enough to

overturn the action taken. We conclude the legislature did not intend to

abolish the de facto officer doctrine by implication. Because the doctrine

survived the 1998 Administrative Procedure Act amendments and

applies to the facts of this case, we hold the district court correctly

granted summary judgment to the Commission regarding Commissioner

La Seur.

      VI. Conclusion.

      The district court did not err by granting summary judgment to the

Commission regarding both Heathcote’s and La Seur’s participation. The

district court also did not err by granting summary judgment without
                                    57

affording Farm Bureau an opportunity to obtain the internal emails from

the Iowa Environmental Council regarding the scope of Heathcote’s job

function. Accordingly, we affirm the decision of the district court.

      AFFIRMED.

      All justices concur except Waterman, Mansfield, and Zager, JJ.,

who concur in part and dissent in part.
                                             58
                             #12–0827, Iowa Farm Bureau v. Env’tl Prot. Comm’n


WATERMAN, Justice (concurring in part and dissenting in part).
       I respectfully concur in part and dissent in part. I agree with the

majority’s conclusion that Commissioner Heathcote’s position with an

environmental organization did not disqualify her from voting on the

antidegradation rules promulgated by the Environmental Protection

Commission.        The statute creating the Commission provides that a

majority of the commissioners will be actively engaged in activities

directly   affected     by    environmental       regulations.        See    Iowa    Code

§ 455A.6(1)(a)–(c) (2009). 10 Accordingly, viewpoint bias is contemplated
and permitted, and Farm Bureau failed to establish grounds to disqualify

Heathcote. 11

       I   disagree,    however,      with    the    majority’s     conclusion      as   to

Commissioner La Seur. The law requires every commissioner to be an

“elector[] of the state.” Id. § 455A.6(1). It is undisputed La Seur lost that

status when she moved to Montana and registered to vote in Montana.

Yet, she continued to serve on the Commission, traveling back to Iowa to

vote in favor of the antidegradation rules.

       10Iowa Code section 455A.6 creates a nine-member commission and requires
that three members shall be “actively engaged in livestock and grain farming,” one
member shall be “actively engaged in the business of finance or commerce,” and one
member shall be “actively engaged in the management of a manufacturing company.”
Iowa Code § 455A.6(1)(a)–(c).
       11The record suggests that Commissioner Heathcote may have counseled her

colleagues in the environmental organization at the Iowa Environmental Council on how
to lobby for the antidegradation rules while the proposed rules were pending before the
Commission.      Farm Bureau, however, has not advanced this as a ground for
disqualifying her, focusing instead on allegations of bias and conflict of interest. I agree
with the majority that Commissioner Heathcote’s outside employment with Iowa
Environmental Council and her policy positions do not disqualify her from voting on the
antidegradation rules. I leave for another day whether a commissioner can vote on a
rulemaking proceeding when the commissioner also was personally involved in outside
lobbying on that same proceeding.
                                      59

      This is not some mere technicality. As the majority emphasizes in

the Heathcote portion of its opinion, the Commission has a “broad

mandate of authority” and engages in “policy rulemaking” for Iowa.

Thus, it is fair and reasonable for the legislature to require that its

members be Iowans. As I discuss below, the same requirement applies

to all elected state and local officials in Iowa, and all judicial officers, as

well as certain other boards and commissions.               The Commission

concedes La Seur was not an elector of this state when she voted for the

antidegradation rules.

      The majority acknowledges that La Seur ceased to be qualified to

serve once she moved to Montana, but nonetheless upholds her

participation based on the de facto officer doctrine.       According to the

majority’s view of the de facto officer doctrine, the only way to stop an

unqualified public official from voting or acting is to bring a quo warranto

proceeding to get her or him removed.            Meanwhile, while such a

proceeding works its way through the courts, the official can continue to

vote or act, and affected citizens have no remedy.

      I think this is wrong. The legislature corrected this unfairness and

narrowed the de facto officer doctrine when it adopted the 1998

amendments to the Iowa Administrative Procedure Act (IAPA), Iowa Code

ch. 17A.    See 1998 Iowa Acts ch. 1202, § 24 (codified at Iowa Code

§ 17A.19(10) (2001)).     While the de facto officer doctrine may still

preclude collateral attack on a past agency action, since 1998 a party

may seek direct review of agency action on the ground that one or more

decision-makers should have been disqualified.            Specifically, Farm

Bureau can challenge the Commission’s action under Iowa Code section

17A.19(10)(e) (2009) as “[t]he product of decision making undertaken by

persons who were improperly constituted as a decision-making body . . .
                                            60

or were subject to disqualification.”                The majority disregards that

amendment to the IAPA.               I would hold that because La Seur was

disqualified from voting and the Commission was improperly constituted

with her participating, the antidegradation rules are void.

       The majority’s use of the de facto officer doctrine—to uphold a vote

after La Seur moved her residence to Montana—undermines a variety of

residency requirements in the Iowa Code and Constitution.12 Justices of

this court, for example, must be Iowa residents. Iowa Code § 46.14(1);

see also Iowa Const. art. V, § 18 (requiring justices to be members of the

Iowa bar). Does the de facto officer doctrine allow me to move to Florida

and continue voting on decisions of our court, despite objections from

the parties, until I am thrown out of office?

       As the majority points out, the Commission was exercising a quasi-

legislative function when engaged in rulemaking.                        Our legislature

requires EPC commissioners to live in Iowa to ensure environmental

regulations are promulgated by Iowans who understand conditions in


       12See,   e.g., Iowa Const. art. III, § 4 (stating a state representative “shall have
been an inhabitant of this state one year next preceding his election, and at the time of
his election shall have had an actual residence of sixty days in the county, or district he
may have been chosen to represent”); id. art. III, § 5 (requiring state senators to satisfy
the same residence requirement as state representatives); id. art. IV, § 6 (requiring the
Governor and Lieutenant Governor to be Iowa residents); id. art. V, § 16 (requiring
members of the judicial nominating commissions to be Iowa electors); Iowa Code
§ 217.2(1)(c) (2013) (requiring members of the Council on Human Services to be Iowa
electors); id. § 330.20 (requiring members of local airport commission to be residents “of
the city or county establishing the commission or a resident of a city or county in this
state served by the airport”); id. § 347.9 (requiring trustees of a county public hospital
to be residents of the county); id. § 368.14 (“A local representative [to the City
Development Board] must be a registered voter of the territory or city which the
representative represents . . . .”); id. § 400.17(3) (“[Civil service e]mployees shall not be
required to be a resident of the city in which they are employed, but they shall become a
resident of the state within two years of such appointment or the date employment
begins and shall remain a resident of the state during the remainder of employment.”);
id. § 421.1(1) (“The state board of tax review . . . shall consist of three members who
shall be registered voters of the state . . . .”).
                                         61

our state and who will live under the rules they issue. See Iowa Code

§ 455A.6(1) (“The members shall be electors of the state . . . .”).

“Wherever qualifications are fixed there is a division into classes; that is

to say, there is a class which may serve, and another that may not.”

State ex rel. Jones v. Sargent, 145 Iowa 298, 307, 124 N.W. 339, 343

(1910) (emphasis added).         The legislature did not allow exceptions for

carpetbaggers. Common sense tells us that a public official will have a

greater interest in the rules he or she is voting on, will possess a greater

understanding of the issues in question, and will lend more credibility

and confidence to the proceeding if he or she is a resident—or specifically

in this case an elector—of the jurisdiction affected by the actions of that

public official.

      The important purposes served by residency requirements have

been noted in many court decisions.            See, e.g., Woodward v. City of

Deerfield Beach, 538 F.2d 1081, 1083 (5th Cir. 1976) (noting durational

residency requirements ensure “candidate knowledge of the issues and

problems of the area”); Triano v. Massion, 513 P.2d 935, 938 (Ariz. 1973)

(finding a residency requirement that candidates had to be qualified

electors for six months was supported by the conclusion that candidates

living in the districts they represent are likely to familiarize themselves

with the people and the problems of the district); State v. Macias, 783

P.2d 255, 258 (Ariz. Ct. App. 1989) (noting a state constitutional

provision requiring elected officers to be “qualified elector[s]” of the state

at   the   time    of   the   election   was   intended   to   prevent   “political

carpetbagging,” and without such qualifications, “anyone in Arizona or

elsewhere would be free to run for the office of Mayor of Nogales so long

as he or she established residence after the election in time to be a

qualified elector before the term of office began”); Wall v. Mun. Ct., 272
                                              62

Cal. Rptr. 702, 703–04 (Ct. App. 1990) (noting that “the possibility that

citizen confidence in the adjudication of traffic cases increases when they

are handled by local residents” was an important legislative goal that was

sufficient to justify the requirement that traffic commissioners be

residents of the county in which they are appointed); Snyder v. Boulware,

96 P.2d 913, 915 (Mont. 1939) (indicating the purpose of a residency

requirement for county commissioners “was to disqualify those who were

not familiar with the needs of the particular section of the county”);

Gangemi v. Rosengard, 207 A.2d 665, 668 (N.J. 1965) (noting its

previous       caselaw     supports       a    residency      requirement        for    city

commissioners on the theory that “residence assures a rudimentary

understanding of local conditions”); Horwitz v. Reichenstein, 103 A.2d

881, 882 (N.J. 1954) (stating the “lack of residence in his ward by a ward

councilman imperil[s] the representation of the ward in the sense

intended by the statute”); Farnsworth v. Jones, 441 S.E.2d 597, 602

(N.C. 1994) (indicating one rationale of a residency requirement is to

“ensure that elected officials sincerely represent the residents of a

particular district”). The majority opinion thwarts the legislature’s goal of

ensuring the Commission regulations are promulgated exclusively by

Iowans who will live under those regulations.

       But, the fundamental problem with the majority’s opinion is that it

conflicts with the IAPA. 13 Prior to 1998, the IAPA only allowed courts to

reverse or modify agency action



       13The  purpose of the IAPA is, in part, “to simplify the process of judicial review of
agency action as well as increase its ease and availability.” Iowa Code § 17A.1(3). The
IAPA “is meant to apply to all rulemaking and contested case proceedings and all suits
for the judicial review of agency action.” Id. § 17A.1(2); accord IES Utils., Inc. v. Iowa
Dep’t of Revenue & Fin., 545 N.W.2d 536, 539 (Iowa 1996) (“The [I]APA generally
                                           63
       if substantial rights of the petitioner ha[d] been prejudiced
       because the agency action [was]:
             a. In       violation    of    constitutional       or    statutory
       provisions;
              b. In excess of the statutory authority of the agency;
              c. In violation of an agency rule;
              d. Made upon unlawful procedure;
              e. Affected by other error of law;
             f. In a contested case, unsupported by substantial
       evidence in the record made before the agency when that
       record is viewed as a whole; or
            g. Unreasonable,      arbitrary or capricious or
       characterized by an abuse of discretion or a clearly
       unwarranted exercise of discretion.

Iowa Code § 17A.19(8) (1997).              Significantly, however, in the 1998

amendment, the following language was added:

       The court shall reverse, modify, or grant other appropriate
       relief from agency action, equitable or legal and including
       declaratory relief, if it determines that substantial rights of
       the person seeking judicial relief have been prejudiced
       because the agency action is any of the following:
              ....
             e. The product of decision making undertaken by
       persons who were improperly constituted as a decision-
       making body . . . or were subject to disqualification.

See 1998 Iowa Acts ch. 1202, § 24.                       La Seur was subject to

disqualification once she moved to Montana. 14                And, the Commission

was improperly constituted when it included a voting member, La Seur,

who had lost her required status as an Iowa elector.                    This provision

precludes use of the de facto officer doctrine here.

_____________________
allows . . . judicial review from an agency action to district court whether the action is
rulemaking, a contested case, or ‘other agency action.’ ”).
       14LaSeur is a graduate of the Yale Law School and a licensed attorney. She
should have known that moving to Montana and registering to vote there would end her
status as an Iowa elector and would disqualify her from continued service on the
Commission.
                                    64

      The 1998 amendment to the IAPA renders irrelevant the majority’s

lengthy discussion of the history and development of the common law

de facto officer doctrine in Iowa and the federal courts.        The 1998

amendment to the IAPA expressly allows parties to challenge and

empowers courts to review agency action that previously would have

been upheld under the common law de facto officer doctrine.             The

majority notes that, historically, we have “applied the [de facto officer]

doctrine to . . . errors in election or appointment.” However, none of the

cases cited by the majority address an improperly constituted decision-

making body or member subject to disqualification after the 1998

amendments to the IAPA. Those cases cited by the majority predated the

1998 amendment and are no longer apposite. See, e.g., State v. Cent.

States Elec. Co., 238 Iowa 801, 818, 28 N.W.2d 457, 466 (1947); Cowles

v. Indep. Sch. Dist., 204 Iowa 689, 698–699, 216 N.W. 83, 87–88 (1927);

Metro. Nat’l Bank v. Commercial State Bank, 104 Iowa 682, 687, 74 N.W.

26, 28 (1898). Similarly, because there is no analogous federal provision

to Iowa Code section 17A.19(10)(e) (2009), the federal caselaw discussed

by the majority is inapposite.

      The majority’s interpretation renders part of section 17A.19(10)(e)

without effect, contrary to our canons of construction. See Bearinger v.

Iowa Dep’t of Transp., 844 N.W.2d 104, 110 (Iowa 2014) (“We are to

interpret [legislation] in a manner to avoid . . . rendering any part of the

enactment superfluous.” (internal quotation marks omitted)); State v.

Keutla, 798 N.W.2d 731, 734 (Iowa 2011) (“We seek an interpretation

that does not render portions of [a statute] redundant or irrelevant.”). By

concluding the agency action must be upheld under the de facto officer

doctrine, the majority effectively cuts off any opportunity to seek review

under the “subject to disqualification” language of section 17A.19(10)(e)
                                      65

and leaves it meaningless.        What does that term mean if it can be

trumped by the de facto officer doctrine? The majority offers no answer.

      Rather, the majority concludes the de facto officer doctrine

survives the 1998 amendment because that term is not mentioned in

section 17A.19(10)(e).   Yet, as the majority acknowledges, we presume

amendments to statutes alter the law. See Postell v. Am. Family Mut. Ins.

Co., 823 N.W.2d 35, 49 (Iowa 2012) (“Finally, when the legislature

amends a statute, it raises a presumption that the legislature intended a

change in the law.”). And, as the majority further acknowledges, “[t]he

common law may be repealed by implication in a statute that plainly

expresses the legislature’s intent to do so.”    Atwood v. Vilsack, 725

N.W.2d 641, 644–45 (Iowa 2006).         That is what we have here.   The

majority’s interpretation is not supported by its reliance on the rule of

construction that statutes are presumed not to repeal the common law.

Our legislature has overruled that rule of construction:

             The rule of the common law, that statutes in
      derogation thereof are to be strictly construed, has no
      application to this Code. Its provisions and all proceedings
      under it shall be liberally construed with a view to promote
      its objects and assist the parties in obtaining justice.

Iowa Code § 4.2.

      Farm Bureau’s challenge is the exact situation contemplated by

the statute. There is no question that La Seur, at the time of the action

in question, was subject to disqualification under Iowa Code section

455A.6(1). The parties agree she was no longer an Iowa elector at the

time of the vote in question. Therefore, I would conclude the decision-

making body was improperly constituted with her voting participation.

See Iowa Code § 455A.6(1) (requiring all Commission members to be

electors of the State of Iowa).
                                    66

      Next, Farm Bureau has shown its “substantial rights” were

prejudiced by La Seur’s act of voting while disqualified. See Iowa Code

§ 17A.19(10) (“The court shall reverse, modify, or grant other appropriate

relief from agency action, equitable or legal and including declaratory

relief, if it determines that substantial rights of the person seeking

judicial relief have been prejudiced . . . .”).   We have described the

“substantial rights” language as follows:

      We have found this “substantial rights” language analogous
      to a harmless error rule. We recognize the commissioner’s
      action “should not be tampered with unless the complaining
      party has in fact been harmed.” This form of analysis is
      appropriate because it would be inefficient for us to provide
      relief from invalid agency action when the particular
      invalidity has not prejudiced the substantial rights of the
      petitioner. Therefore, [the complainant] bears the burden of
      demonstrating both the invalidity of the agency’s action and
      resulting prejudice.

Hill v. Fleetguard, Inc., 705 N.W.2d 665, 671 (Iowa 2005) (citations

omitted).

      Prejudice is easily established here. We have long held that a vote

is invalid when one member of a voting body should have been

disqualified from voting, even when the tainted member’s vote is not
decisive.   See, e.g., Wilson v. Iowa City, 165 N.W.2d 813, 819 (Iowa

1969). In Wilson, the five members of the city council of Iowa City voted

on and adopted resolutions related to urban renewal.        Id. at 816–17.

However, at the time of the votes, at least one member of the council was

prohibited by a statute from voting on issues related to urban renewal

because of an existing conflict of interest.      Id. at 817, 820–21.    In

determining whether the vote should be vacated, even when the vote of

the disqualified member would not have changed the outcome, we held

“the better rule holds a vote cast in violation of a conflict of interest

statute, even if immaterial to the outcome, vitiates the proceeding.” Id. at
                                     67

819.      We noted two rationales supported such a rule: (1) “the

participation of the disqualified member in the discussion may have

influenced the opinion of the other members,” and (2) “such participation

may cast suspicion on the impartiality of the decision.”         Id. at 820

(internal quotation marks omitted).       We stated, “It being impossible to

determine whether the virus of self-interest affected the result, it must

. . . be assumed that it dominated the body’s deliberations, and that the

judgment was its product.” Id. (internal quotation marks omitted). The

same is true here.

        La Seur’s participation while disqualified may have influenced the

opinion of the other members, and in the very least, it casts suspicion on

the decision.   As in Wilson, it is impossible for us to know the exact

impact of La Seur’s participation.    The Iowa cases relied upon by the

majority for the de facto officer doctrine predated both Wilson and the

IAPA.

        The majority, by denying Farm Bureau’s challenge raised on direct

review, renders meaningless the requirement that Commissioners be

Iowa residents. I would conclude La Seur’s failure to maintain her status

as an Iowa elector enables the district court to review the agency’s action

under Iowa Code section 17A.19(10)(e), and summary judgment was

improperly granted to the EPC on the issue.

        Even if this case was decided under our common law, I would find

La Seur’s vote is not validated by the de facto officer doctrine. Because of

the foregoing rationales for residency and elector requirements, I disagree

with the majority’s contention that La Seur’s failure to maintain her

status as an Iowa elector “is comparable to that of an elected official who

fails to properly take the oath of office.” Taking the oath of office is a

technical procedure to be performed before an otherwise qualified
                                     68

candidate takes office. By contrast, the requirement that each member

of the commission be an elector of this state is a condition of holding

office that is fundamental, not technical.        This residency requirement

cannot be remedied through a procedural step such as taking or retaking

an oath.

      La Seur’s failure to maintain her status as an Iowa elector is

similar to the failure of the officer in State v. Palmer to take the required

training course prior to administering a breath test.       See 554 N.W.2d

859, 864–65 (Iowa 1996). In that case, we noted allowing an officer to be

considered a de facto peace officer approved to administer the test

without the proper training would “ignore the legislature’s decision to

define ‘peace officer’ more narrowly for purposes of the implied consent

law,” and “would completely ignore [the statute]’s requirement of

specialized OWI training.” Id. at 865. We further noted the absence of

the training was more than a “technical infirmity” because the training

provided safeguards to protect the citizens of Iowa from improperly

administered tests with consequential criminal and administrative

penalties including loss of driving privileges. See id. at 865–66. As the

majority points out, “the de facto officer doctrine is not applied when the

particular disqualification at issue undermines the integrity and

confidence   demanded      in   actions   taken    or   decisions   made   by

government.”

      Here, allowing La Seur to vote on rules affecting the citizens of

Iowa when she did not meet the basic qualification that she be an Iowa

elector “ignore[s] the legislature’s decision” to require commissioners to

be electors of the state. See id. at 865; cf. Sargent, 145 Iowa at 307, 124

N.W. at 343 (“The fixing of qualifications for office is a legislative and not

a judicial function.”). Further, as noted above, the elector requirement
                                    69

protects Iowa’s citizens by ensuring that those individuals responsible for

making rules that will affect the citizens of the state will be interested

and invested in the outcome of the rulemaking procedures, as they

themselves will live under the rules that are enacted.      Therefore, the

failure to maintain status as an elector of the state is more than a

technical infirmity. As one of only two qualifications required of every

commission member, it “goes to the heart” of the qualifications set forth

under section 455A.6(1), and therefore, La Seur’s vote should not be

rescued by the de facto officer doctrine. See Palmer, 554 N.W.2d at 865.

      For these reasons, I conclude La Seur’s failure to maintain her

status as an Iowa elector, as required by Iowa Code section 455A.6(1),

left her subject to disqualification and rendered the Commission an

improperly   constituted   decision-making    body.     See   Iowa   Code

§ 17A.19(10)(e). That statute trumps the de facto officer doctrine. But,

even under the majority’s common law analysis, La Seur’s participation

should not be excused by the de facto officer doctrine. Her participation

in voting, therefore, invalidates the Commission’s antidegradation rules.

See Wilson, 165 N.W.2d at 820. Accordingly, I would reverse the district

court’s entry of summary judgment against Farm Bureau.

      Mansfield and Zager, JJ., join this concurrence in part and dissent

in part.
