What began as controversy over settlement agreements for three Davenport city officials who alleged they had been harassed has resulted in a win for Iowa State Auditor Rob Sand over Iowa Attorney General Brenna Bird after the state Supreme Court sided with Sand’s office.
Bird, a Republican who’s often been at odds with Sand, the sole statewide elected Democrat, argued in the case leading to the Friday, Dec. 5, ruling that her office, as the state’s legal counsel, should represent the auditor’s office in an ongoing court case regarding the legality of the settlement agreements for the Davenport employees.
Sand, a lawyer and former state assistant attorney general, contended that his office should be able to represent itself.
Sand, Bird disagree on state’s legal position, and he filed his own brief
At issue was Sand’s allegation that Davenport may have violated open-meetings laws when its City Council approved the settlements, totaling $1.8 million, in December 2023, weeks after they were announced and months after they were signed.
Sand noted the council had held closed sessions to discuss litigation around the period when the settlements were made and again before its vote. His office called Davenport’s city attorney, who allegedly approved the settlements without council authorization, a “walking audit risk” and suggested the city lacks effective internal legal controls over expenditures.
Sand subpoenaed records, including recordings or meeting minutes from the five closed City Council sessions.
Davenport objected, citing attorney-client privilege, and sued to have the courts block that portion of the Sand’s subpoena.
Iowa District Judge Jeffrey Bert did not rule that Sand could see the closed meeting records. But in a May 2024 order, Bert found that Sand’s office could access attorney-client protected information, as opposed to the separate category of “attorney work product,” and he ordered the city to provide the records to him for his private review to determine which category applies in this case.
Davenport appealed, arguing that both attorney-client communications and attorney work products should be protected from the auditor’s subpoena under Iowa law.
According to the Supreme Court’s 6-0 ruling, written by Justice Edward Mansfield, Bird’s office in an initial brief backed Sand’s position that state law entitles his office to request attorney-client communications. But the day before that brief was due, she advised him she was removing that part of the brief and would refuse to argue for that position.
The ruling said she explained that she disagreed and that the position was unlikely to succeed.
Sand then filed his own brief through the general counsel for his office and Asked the court to block the brief from Bird’s office, the ruling said.
Sand contends Bird’s office wants to limit his powers
Sand and Bird’s clash reflects a broader disagreement stemming from the Republican-dominated Iowa Legislature’s 2023 passage of a law that limited Sand’s ability to force state agencies to provide documents. Sand in a statement suggested Bird “doesn’t want the Auditor’s Office to argue we should get this evidence of waste, fraud and abuse, because that could lead to us getting evidence about other waste, fraud and abuse in other cases.”
Bird’s office described her dispute with Sand as a disagreement not over the scope of the auditor’s power but about legal strategy.
“Iowa law makes clear that it is the job of the Attorney General’s Office to represent the state in court, not the auditor’s. We have checks and balances for a reason,” Bird said in a statement. “As we have thoroughly discussed with the auditor’s team, our brief makes the most sound and strategic arguments to help the state win its case in court.”
Court finds Bird has conflict of interest
The Supreme Court in its ruling found that the Attorney General’s Office has a conflict of interest in representing Sand’s office because the “she believes it would be disadvantageous to the state as a whole” to allow the auditor’s office to view the attorney-client records.
“The auditor wants to argue for affirmance of the district court’s view of the auditor’s legal authority, and the attorney general does not want to do so in part because of legitimate concerns about the impact such a decision would have on other state officers and agencies,” Mansfield wrote. “That’s a conflict.”
Also at issue was whether the auditor’s office needed the approval of the Executive Council of Iowa — A state board comprised of Sand, Gov. Kim Reynolds, Secretary of State Paul Pate, State Treasurer Roby Smith and Agriculture Secretary Mike Naig — to use alternative counsel if the Supreme Court disqualified Bird’s office.
The court found that state law requires executive council approval to use paid attorneys outside of state government, not attorneys already working for the state, as was the case with Sand’s office. Mansfield noted in his opinion that Sand’s office previously represented itself in a 2021 case before the Supreme Court.
Justice Thomas Waterman recused himself from the case.
Sand: Attorney general can’t ‘unilaterally silence other constitutional officers’
In a statement about the ruling, Sand, who is running for governor, said it affirms “that taxpayers in Davenport, and across the state, deserve transparency and accountability.”
“It also reinforces that the Iowa Attorney General cannot unilaterally silence other constitutional officers or deny them access to the courts,” the statement said.
Bird’s office also issued a statement, saying, “Today the Court recognized the Office of the Attorney General’s concerns are legitimate and the Auditor’s position on attorney-client privilege, if he later prevails, will impact other state officers and agencies, and ultimately, Iowans in general. It is a long-standing legal principle to seek legal advice and have candid communications with attorneys without fear that those discussions will be disclosed.”
“We remain committed to our role of legally representing entities of the state of Iowa and to the checks and balances that make our government one of the people, by the people, and for the people,” the statement added. “We will continue to work diligently for Iowans.”
Philip Joens covers retail and real estate for the Des Moines Register. He can be reached at 515-284-8184 or pjoens@registermedia.com.
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This article originally appeared on Des Moines Register: Iowa Supreme Court rules for Democratic auditor in dispute with GOP AG
Reporting by Philip Joens, Des Moines Register / Des Moines Register
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