Iowa Supreme Court rules state auditor's office can represent itself in Davenport case

Iowa's auditor can be represented by his office's attorneys in a lawsuit over access to records concerning Davenport's nearly $2 million in settlements with three former employees, the Iowa Supreme Court ruled in a decision released Friday.

The Iowa Attorney General's Office and Iowa Auditor's Office reached an impasse earlier this year over subpoena authority of the auditor's office and how to argue the Davenport case.

At issue in the Davenport case is whether State Auditor Rob Sand's office should have confidential access to records of closed sessions as it audits how Davenport executed settlement payments with three former staffers in 2023.

After Davenport filed an appeal, the auditor's office wanted to argue that state code gives the auditor authority to subpoena attorney-client privileged information, an argument that was successful in a lower court prior to the appeal.

While Attorney General Brenna Bird's office initially prepared a brief with that argument, the day before it was due, the office's attorneys changed course and said they would make a more technical argument that the timing of the city's appeal wasn't right and the case should be remanded to lower courts for a decision.

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The attorney general's office argued that the change was strategic to avoid a potential precedent-setting ruling against the auditor's office.

But the auditor's office argued the attorney general's office had a conflict of interest in its position because the attorney general was concerned about how a ruling could impact other state agencies it defends.

The Supreme Court agreed with the auditor.

"The Auditor and the Attorney General disagree as to the subpoena authority of the Auditor," according to the opinion. "This is not a mere disagreement over strategy, as suggested by the Attorney General. The Attorney General doesn’t want the Auditor’s view of his own authority upheld on appeal. That is a conflict of interest, and it justifies the Auditor’s appearance through other counsel."

The opinion also called on the Attorney General's Office to file separately from the auditor's office as "it is important that the Attorney General’s views be considered."

"The Iowa Supreme Court's decision affirms what the State Auditor's Office has emphasized all along — that taxpayers in Davenport, and across the state, deserve transparency and accountability," the auditor's office said in a news release. "It also reinforces that the Iowa Attorney General cannot unilaterally silence other constitutional officers or deny them access to the courts."

Sand, the lone statewide elected Democrat and a candidate for governor, has faced pushback from other state agencies on requests for information, such as over state funds going toward private school tuition. Republicans in the Legislature have also authored legislation that aimed to limit Sand's authority.

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Justice Edward Mansfield penned the opinion, joined by Chief Justice Susan Christensen and Justices Dana Oxley and Matthew McDermott. Justice Christopher McDonald filed an opinion concurring in part and dissenting in part, joined by Justice David May. Justice Thomas Waterman was not a part of consideration or decision.

Davenport sued in February 2024 to squash a subpoena from the auditor's office for closed session records leading up to the late 2023 settlements, arguing that they are protected by attorney-client privilege. The auditor's office pointed to state law, which it argued gives the auditor access to materials relevant to an audit, even if they're confidential, but not to share them with the public. The auditor's office says the conversations are critical to determine whether proper procedures were followed in paying close to $2 million to former staffers.

The district court agreed with the auditor's office, set an evidentiary hearing and hinted that it could order the city to produce the records for a judge's review.

But the city filed an interlocutory appeal with the Iowa Supreme Court. Friday's opinion did not rule on the issue of whether the auditor can have access to the records.