from the Iowa District Court for Lee County (North), Mark E.
Kruse, District Associate Judge.
Pieper appeals his conviction of felonious misconduct in
office following a jury trial, challenging the sufficiency of
the evidence. REVERSED AND REMANDED.
Matthew G. Whitaker and Kendra L. Mills Arnold of Whitaker
Hagenow & Gustoff LLP, Des Moines, for appellant.
J. Miller, Attorney General, and Martha E. Trout, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
Pieper appeals his conviction of felonious misconduct in
office following a jury trial. He argues there was
insufficient evidence to support his conviction, among other
things. Because we agree, we remand the case to the district
court to vacate his conviction and dismiss the case.
Background Facts and Proceedings.
history of the Green Bay Levee and Drainage District No. 2
(District) was detailed in a prior opinion by a panel of this
court and is therefore not repeated here. See
Pieper, Inc. v. Green Bay Levee
& Drainage Dist. No. 2, No.
15-2032, 2016 WL 7395742, at *1-4 (Iowa Ct. App. Dec. 21,
2016). Relevant to the issues in this case, Michael Pieper
was elected to serve as one of the three trustees on the
District's Board of Trustees (Board). The other two
members serving during the relevant time frame were Michael
Walker and Pieper's first cousin Craig Pieper. Both
Michael Pieper (Pieper) and Walker owned their own businesses
while serving as Board trustees.
about 2011, the District learned it would receive FEMA
funding to restore and reshape its levees that sustained
flood damage in 2008. To that end, a civil engineer and his
firm were hired by the Board to draw up plans for the
project. In very general terms, this required the engineer to
determine how to rebuild the levees to make them as
impervious to flood waters as possible. Many factors are
involved in making this determination; dirt is not simply
trucked in and dumped along the river's edge. Rather, the
existing soil of a levee had to be analyzed to determine the
soil's seepage and permeability, and with that
information, the engineer determined what material and soil
composition to use and where to use it to reconstruct the
levee. Much like an architect, the engineer's work
resulted in a design plan that contractors would follow to
complete the project. However, the engineer also served as an
on-site inspector, periodically inspecting the
of the engineer's plans, certain areas located within the
District's right-of-way were designated "borrow
areas." The contractor was to take soil located in the
designated "borrow area" and relocate it for use in
the levee. Selecting the borrow areas required a delicate
balance; taking soil from an area too close to the levee
could weaken and ultimately damage the levee. Taking soil
beyond a certain depth could change the soil's saturation
and add costs. Taking soil from an area too far away
unnecessarily increased costs, as did taking soil from land
not in the District's right-of-way.
contractors submitted bids to work on the project, the
engineer provided project information to potential bidders,
setting forth the project's requirements and
instructions. Bids were thereafter accepted from contractors.
The lowest bid submitted was from Pieper's business,
MEPCO, and MEPCO was awarded the contract. At this time,
Pieper was serving as the Board's chairman. Pieper agreed
that he would abstain from the issues related to the contract
before the Board.
April 2012, there were disputes between the engineer,
Walker-in his capacity as a Board trustee, and Pieper-as both
the chairman of the Board and as the owner of MEPCO. Walker
believed the engineer was improperly following Pieper's
instructions, i.e. that the engineer was taking the position
of the contractor, MEPCO, over the interest of the District.
The engineer believed Pieper's instructions were given on
behalf of the Board, not MEPCO.
about June 2012, the engineer learned from his site-inspector
that an area had been excavated by MEPCO without
authorization-i.e., soil had been removed from an area that
was not designated a "borrow area." The
engineer's analysis of that area, based upon
topographical scans, found that "approximately 32, 060
cubic yards of material had been removed out of that
area." Upon further inspection, it was determined that
the removal of this soil weakened that part of the levee, and
the Army Corps of Engineers directed that the levee had to be
restored back to its original design condition or the
District risked "being thrown out of the federal
program" and losing federal assistance for repair of the
levee in the event of a catastrophe or loss. The engineer
confronted Pieper about the issue. Pieper asserted only 2500
cubic yards had been removed.
matter came before the Board at its June 28, 2012 meeting.
All three trustees were present, as well as the Board's
clerk, Vic Pierrot. Pierrot had served as the Board's
clerk since 2005 and performed the duties normally associated
with secretary and treasurer roles. Pierrot had decided to
retire after sustaining a head injury, and the June meeting
was to be Pierrot's last meeting. During Pierrot's
tenure, if he was unable to attend a Board meeting, his
daughter would fill-in for him. She was present at the
meeting and took some notes. Also present at the meeting was
the new clerk, Kim Ransdell, who had agreed to fill-in as the
clerk after Pierrot retired. Ransdell was a paralegal who had
worked with Pieper in the past, and Pierrot recommended her
for the position at the meeting. Pierrot agreed to assist her
in the transition and to provide her with a "flash drive
containing all the work done since taking the job."
June meeting was contentious and lasted four hours, ending
around eleven p.m. A member of the public, who, at the time
of trial was serving as a trustee, began video-recording the
meetings in May 2012. He recorded the June, July, and August
the June meeting, Pierrot drafted "Unapproved
Minutes" from the meeting to be approved at the next
meeting of the Board. Those unapproved minutes stated that at
the June 28, 2012 meeting, the minutes from the May meeting
were read, amended, and then approved unanimously by the
Board. Among other things discussed at the meeting,
Pierrot's draft indicated the Board talked about
conflicts of interest. The draft also stated, in relevant
Lodwick [right-of-way (ROW)]- The culvert must be removed
before the next meeting.
Mississippi levee disturbances- Several areas where
haul-through accesses were notched into the levee must be
repaired per Corps specifications.
The main levee is 67% complete.
Lost Creek project- Restoration of ROW along Lost
Creek levee is nearly complete.
Mike W moved, Craig seconded:
Seeding must be complete by July 15. Mepco must provide
indemnification to address any soil erosion or seeding damage