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State v. Pieper

Court of Appeals of Iowa

November 8, 2017

STATE OF IOWA, Plaintiff-Appellee,
MICHAEL E. PIEPER, Defendant-Appellant.

         Appeal from the Iowa District Court for Lee County (North), Mark E. Kruse, District Associate Judge.

         Michael 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.

          Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney General, for appellee.

          Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.

          DOYLE, JUDGE.

         Michael 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.

         I. Background Facts and Proceedings.

         The 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.

         In or 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 contractor's work.

         As part 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.

         Before 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.

         By 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.

         In or 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.

         The 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."

         The 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 2012 meetings.

         Following 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 part:

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 ...

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