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IN THE COURT OF APPEALS OF IOWA No. 6-814 / 05-1504 Filed December 13, 2006

GARY MCCORMICK, Petitioner-Appellant, vs. IOWA DIVISION OF LABOR, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, James C. Bauch, Judge.

Gary McCormick seeks further judicial review of the decision of the Iowa Division of Labor which was affirmed by the district court. AFFIRMED.

Larry J. Cohrt of L.J. Cohrt Law Firm, Waterloo, for appellant. Thomas J. Miller, Attorney General, Mark Hunacek, Assistant Attorney General, for appellee.

Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.

2 VAITHESWARAN, J. Gary McCormick, an officer with the University of Northern Iowa Police Department, filed a complaint with the Iowa Division of Labor. He alleged that the University declined to equip officers with firearms and, thereby, failed to afford them a "safe work environment." He asked the Iowa Division of Labor to investigate his complaint. An administrator with the Division responded by

stating, "Both OSHA and IOSH[A] continue to have no specific standards that address equipping employees with firearms as personal protective equipment." 1 She also noted that the personal protective equipment available to the officers "meets the intent of the standard." The administrator concluded, "[W]e continue to be unable to take any action on your complaint." McCormick sought judicial review of this agency decision. He alleged that the Division had a "duty to investigate and enforce the requirements of the OSHA Act of 1970, including in particular, the General Duty Clause, 5(a)(1) and Section 88.4, Code of Iowa." He asked that the agency "be ordered to conduct an

investigation and issue such appropriate orders as may be necessary to correct the foresaid workplace hazard." McCormick separately asked for an evidentiary hearing before the district court. The court denied this request and issued a final ruling. In its ruling, the district court began by noting the "highly deferential standard" under which it was to review this type of agency action. The court cited the University's written policy that required officers "to carry a chemical
1

OSHA refers to the Occupational Safety and Health Act of 1970, 29 U.S.C. section 651 et. seq., and IOSHA refers to the Iowa Occupational Safety and Health Act, Iowa Code chapter 88 (2005).

3 agent, impact weapon and Taser on their person"; to notify the Cedar Falls Police Department if there was a threat that weapons would be used and avoid contact until they were present; and to retreat when they could not safely effect an arrest or defend themselves. The court also cited the Division's determination "that the current safety measures in place are adequate under OSHA and IOSHA." The court concluded that the Division's action "was not an error of law," nor was it "unreasonable, arbitrary or capricious." McCormick seeks further judicial review. We first address our standard of review. Agency action includes the whole or a part of an agency rule or other statement of law or policy, order, decision, license, proceeding, investigation, sanction, relief, or the equivalent or a denial thereof, or a failure to act, or any other exercise of agency discretion or failure to do so, or the performance of any agency duty or the failure to do so. Iowa Code

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