UPDATES & ANALYSIS

6.28

Former state employee may pursue claim she was fired for complying with Iowa Open Records Act, Iowa Supreme Court holds

by Rox Laird | June 28, 2023

A former public employee may bring a claim of being wrongfully fired for performing the assigned duty of releasing government records to the public under the Iowa Open Records Act, the Iowa Supreme Court held in a decision handed down June 23.

The ruling sends former Iowa Department of Health communications director Polly Carver-Kimm’s wrongful discharge suit against Gov. Kim Reynolds, her spokesman Pat Garrett, and the State back to Polk County District Court for further proceedings against the State but with Reynolds and Garrett dismissed from the case.

Carver-Kimm claims she was given the option of quitting or being fired because Department of Health officials objected to her handling of some public-records requests by members of the news media during the Covid-19 pandemic.

In its June 23 decision, the Court dismissed the governor and Garrett from the case saying they did not have authority to fire Carver-Kimm, but it sent the case back to the district court for resolution of her wrongful-discharge claim against the State.

The majority decision was written by Justice Matthew McDermott joined by Chief Justice Susan Christensen and Justices Thomas Waterman and Edward Mansfield. Justice Christopher McDonald, joined by Justices Dana Oxley and David May, submitted a separate opinion concurring in part and dissenting in part.

A key issue in the case is Carver-Kimm’s argument that she was wrongly fired for reasons that violate a “clearly defined public policy,” which the Court has recognized as an exception to Iowa’s “employment at will” doctrine under which an employee generally may be fired for any reason or no reason at all.

Carver-Kimm argues she was fired because she produced public documents and information to the news media in compliance with the open-records statute, Iowa Code Chapter 22, which expresses the policy that “free and open examination of public records is generally in the public interest even though such examination may cause inconvenience or embarrassment to public officials or others.”

The State argued – and the Court agreed – that the statute’s public-interest policy statement by itself is too general to provide absolute job protection for public employees responsible for responding to records requests. But the Court disagreed with the State’s argument that nothing in the open-records statute can support a claim for wrongful discharge in violation of public policy.

“The source of the claim that Carver-Kimm alleges in this case is the public’s statutory right to access records from the Iowa Department of Public Health,” McDermott wrote. “Protecting this right by recognizing a cause of action for an employee tasked with carrying out the statute advances a well-recognized general social policy.”

Although the open-records statute also contains a judicial enforcement mechanism that gives parties the right to go to court if public records are not produced, the Court said recognizing a claim for wrongful discharge in violation of public policy is not a “redundant” protection.

“What if, for instance, a lawful custodian [of public records] is told by their boss that if they produce some embarrassing records, they’ll be fired?” McDermott wrote. “Without legal protection for the custodian in this circumstance, it’s likely that the records will never be produced — and the records’ existence will never be known to the requesting party. The proper functioning of the Open Records Act depends on the government employees who administer it, and the wrongful-discharge-in-violation-of-public-policy tort protects those employees.”

The Court dismissed the governor and Garrett from the case saying they lacked the power to remove Carver-Kimm. The Department of Health is a creature of a state statute that directs the department director to employ “such employees as may be authorized by law,” McDermott wrote, but no statute or constitutional provision gives the governor or member of the governor’s staff authority to appoint or remove a department employee such as Carver-Kimm.

Justice McDonald, writing separately, concurred in part with the majority opinion but dissented on the question of the Court’s support for a claim of wrongful discharge in violation of public policy for enforcement of the open records law.

McDonald argued that Iowa Code Chapter 22 already contains a “robust” enforcement provision that allows any individual to bring an action in state court if they believe the law has been violated. A court may order compliance, award damages and attorney fees, and order the removal of offenders from public office. Moreover, he wrote, the open records law is also enforced by the Iowa Public Information Board created in Chapter 23 as an alternative to the courts for individuals seeking public records.

In light of these existing mechanisms for enforcement of the state’s policy in favor of public access to public records, McDonald wrote that “this court should not create an additional cause of action for wrongful discharge.”

 

 

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