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State of Iowa v. Henry W. Van Weelden

March 13, 2013

STATE OF IOWA, PLAINTIFF-APPELLANT,
v.
HENRY W. VAN WEELDEN, DEFENDANT-APPELLEE.



Appeal from the Iowa District Court for Mahaska County, Paul D. Miller, Judge.

The opinion of the court was delivered by: Doyle, J.

The State appeals from the district court's order granting Henry Van Weelden a new trial. AFFIRMED.

Heard by Vogel, P.J., and Potterfield and Doyle, JJ.

The State appeals from the district court's order granting Henry Van Weelden a new trial based upon newly-discovered evidence. Upon our review, we find the district court properly exercised its discretion in granting Van Weelden's motion for new trial. We affirm.

I. Background Facts and Proceedings

A Mahaska County jury convicted county Supervisor Henry Van Weelden of theft in the first degree, felonious misconduct in office, and tampering with records for allegedly making false assertions on official letterhead in order to add his wife to the county's health insurance plan. The following facts can be gleaned from the record.

Van Weelden was elected to the Mahaska County Board of Supervisors in 2000. The county offers a self-funded health plan to its employees. The plan was administered by a third party administrator, Auxiant.*fn1 There are no underwriting requirements or pre-existing condition limitations for new employees and their families who timely enroll in the health plan. Late enrollees are subject to medical underwriting and waiting periods. Van Weelden's service as county supervisor began on January 1, 2001, and at that time, he enrolled himself and his wife, Bonnie, in the health plan.

In April 2004, Van Weelden cancelled Bonnie's coverage. She was then provided coverage under her employer's plan. In June 2008, Van Weelden submitted an employee change form to add Bonnie back onto the health plan.

Upon review of the application as well as "additional medical records [it] received as part of the review process," Auxiant declined the application "based upon underwriting guidelines."

Van Weelden was re-elected in November 2008. At that time, he contacted Thomas O'Brien of Auxiant to determine whether Bonnie could be enrolled onto the health plan. O'Brien responded via email, setting forth four options for the county to either extend or decline coverage to Bonnie, and stating in relevant part, "We can stay with the administration of the current language (which would mean the individual would not be covered), or the county can give us instruction to make an administrative exception in this case."*fn2 In essence, two of the three county supervisors would have to agree to add Bonnie to the health plan "on an exception basis" so that no medical underwriting would be required.

The board of supervisors met on January 5, 2009. After the meeting, a discussion took place between Van Weelden and Supervisor Lawrence Rouw regarding Bonnie being added to the health plan without riders since Van Weelden had just been re-elected for a new term beginning January 1, 2009.*fn3

County engineer Jerome Nussbaum and county emergency management director Jamey Robinson attended the meeting and heard Rouw tell Van Weelden that "as far as he was concerned, being re-elected was the same as being newly-elected." Rouw later testified, however, that he did not tell Van Weelden re-elected was the same as newly-elected and, to the contrary, he told Van Weelden to "[f]ollow the 12 month [waiting period]."*fn4

On January 13, 2009, Van Weelden called O'Brien and stated, "[I]t is time to get [Bonnie] on the plan. How do we do it?" O'Brien reviewed the options he had previously provided Van Weelden, but Van Weelden responded, "[H]ow do we just get it done?" O'Brien informed Van Weelden to send an instruction from the board of supervisors in order to add Bonnie to the plan.

A few days later, Van Weelden submitted an employee change form to O'Brien to enroll Bonnie onto the health plan. With the change form, Van Weelden included a letter dated January 16, 2009, composed on Mahaska County Board of Supervisors letterhead, stating:

Tom [O'Brien],

The board of supervisors is in agreement Bonnie Van Weelden should be place[d] on the county insurance starting February 1. The basis for this is that newly elected officials are automatically enrolled along with their family. Since I was just reelected that should cover us if anyone else has a problem with this.

Also there should not be any riders with her placement on the insurance.

Thank You, /s/ Henry W. (Willie) Van Weelden

The board of supervisors was considered in agreement if two supervisors (the majority) were in agreement.

Auxiant enrolled Bonnie in the health plan. Auxiant subsequently determined it needed to submit "something official" to American International Group, the county's stop loss carrier, recording the basis for the change-either a signed addendum or a formal approval in minutes from a board meeting. In a March 16, 2009 letter to the county, Auxiant enclosed an addendum to the health plan for the board to sign and return. And in an April 3, 2009 letter to the county, Auxiant enclosed a proposal detailing the four options the county could take on the enrollment request, the same four options O'Brien had provided Van Weelden in November 2008. The issue came before the board at its April 6, 2009 meeting, but the minutes indicate only that "[t]he matter of the health insurance addendum was tabled." No further action was taken by the board on the issue.

Supervisors Rouw and Greg Gordy alleged they became aware in December 2009 of Van Weelden's January 16 letter to Auxiant requesting Bonnie be enrolled in the health plan. Meanwhile, relations between Van Weelden and Supervisors Rouw and Greg Gordy had deteriorated. Rouw and Gordy claimed they had not agreed to Bonnie's enrollment and brought Van Weelden's letter to the County Attorney, who referred the matter to the Attorney General's Office.

In April 2011, the State filed a trial information charging Van Weelden with theft in the first degree, misconduct in office, and tampering with records.*fn5 Trial began in February 2012. The crux of Van Weelden's defense was that the majority of the county supervisors (Supervisor Rouw and himself) were in agreement that re-elected was synonymous with newly-elected for purposes of enrollment onto the county health plan with no medical underwriting at the time he requested Bonnie be enrolled in January 2009. Following the five-day trial, a Mahaska County jury convicted Van Weelden as charged.

In March 2012, Van Weelden filed a motion for new trial based in part on newly discovered "overwhelmingly exculpatory" evidence, namely: a DVD video recording of the April 6, 2009 board of supervisors meeting in which an eight minute discussion ensued between the supervisors regarding Bonnie's enrollment onto the health plan.*fn6 During the discussion, Supervisor Rouw stated, in direct contravention of his trial testimony, it was his opinion "a re-elected official would be the same as a newly elected official." In addition, the conversation acknowledged Van Weelden's communication with Auxiant and Louw for the prior three months [since January] regarding Bonnie's enrollment. The State filed ...

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