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IN THE SUPREME COURT OF IOWA
No. 46 / 04-2013 Filed June 23, 2006 CHARLES A. STREAM and DIANE B. MCMAHAN, Appellees, vs. GREG GORDY, WILLIE VAN WEELDEN, and LAWRENCE ROUW, as MAHASKA COUNTY BOARD OF SUPERVISORS, Appellants.

Appeal from the Iowa District Court for Mahaska County, James Q. Blomgren, Judge.

Members of the board of supervisors appeal a district court order finding the supervisors' action illegal when they refused to provide full-time compensation and benefits to an employee shared by the county attorney's and the assessor's offices and requiring the county to pay outside counsel's legal fees. REVERSED AND CASE REMANDED WITH DIRECTIONS.

Carlton G. Salmons of Gaudineer, Comito & George, L.L.P., West Des Moines, for appellants.

Garold F. Heslinga of Heslinga, Heslinga, Dixon & Moore, Oskaloosa, for appellees.

2 WIGGINS, Justice. In this case, we must decide whether the district court was correct when it found the county supervisors acted illegally by refusing to provide full-time compensation and benefits to an employee shared between the county attorney's and the assessor's offices. We must also decide whether the county is responsible for the legal fees of the county attorney's and the assessor's outside counsel. Because the members of the board of

supervisors were exercising a legislative function at the time they disapproved the full-time compensation and benefits for the shared employee, a writ of certiorari will not lie against them. Additionally, the county is not responsible for the legal fees of the county attorney's and the assessor's outside counsel because the county attorney and the assessor failed to obtain authorization from their respective boards prior to retaining outside counsel. Accordingly, we reverse the judgment of the district court and remand the case for entry of judgment consistent with this opinion. I. Background Facts and Proceedings. Charles Stream, the Mahaska County attorney, shared a full-time employee with the sheriff's office, splitting the employee's time, salary, and benefits. When that employee left Stream's office, he decided to fill the vacancy in the same manner. In January 2003, Stream informed the

Mahaska County board of supervisors (Board) of his intention to do so at its meeting regarding his budget for fiscal year 2003-04. This budget included $11,000 for the county attorney's share of the employee's full-time salary as well as one-half the cost of family benefits for the employee. Stream then hired Carrie Ferguson to fill the part-time secretary vacancy in his office on February 1, paying her $9 an hour. At the time of Ferguson's hire, Stream told her that if she worked well he would attempt to make her position full-

3 time by having her work part-time in another county office. Stream did not tell Ferguson the employee-sharing arrangement was contingent on approval by the Board. Instead, he told her the Board had already approved such an arrangement. As he had done in the past, Stream sought the Board's approval for his hiring of Ferguson. The Board approved her hire at $9 an hour with no benefits. In March, the Board approved and certified Stream's budget for fiscal year 2003-04. In April, Stream became aware of a part-time clerk opening in the county assessor's office. He approached Diane McMahan, the Mahaska County assessor, about hiring Ferguson for that position. Stream and McMahan agreed to share Ferguson as an employee and to split equally the costs of her $22,000 salary and benefits. Although McMahan's office was not required to obtain the Board's approval for the hiring of Ferguson, Stream and McMahan jointly wrote a letter on May 23 to the Mahaska County auditor, with a copy to the Board, notifying the auditor of their arrangement so she could place Ferguson on the payroll at the higher rate of pay with benefits effective June 1. Around this time, McMahan also notified the Mahaska County conference board of this arrangement as a matter of courtesy. The assessor has the authority to hire office personnel subject to the budget limitations imposed by the conference board. Iowa Code

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