Iowa Supreme Court examines the powers of the governor in considering Godfrey case

Former Gov. Terry Branstad speaks to reporters at a fundraiser in November 2016 in Altoona, Iowa. (Photo by Kathie Obradovich/Iowa Capital Dispatch)

The Iowa Supreme Court heard arguments Wednesday as to just how much power the state’s governor wields, and whether race or sexual orientation can be considered in choosing which state officials are allowed to keep their jobs.

The justices are considering an appeal in the case of former Worker’s Compensation Commissioner Chis Godfrey. Shortly after being elected governor in 2010, Terry Branstad asked Godfrey for his resignation. Godfrey, who is gay, declined and said he intended to serve out his term.

Branstad then cut Godfrey’s salary by almost $40,000, excluded Godfrey from a governor’s retreat and allegedly made claims that Godfrey was responsible for the increasing costs of workers’ compensation insurance premiums.

In 2012, Godfrey sued the state for wrongful termination and discrimination. When the case finally went to trial in 2019, Branstad, by then the U.S. ambassador to China, testified that in attempting to fire Godfrey he was responding to advice from individuals tied to business and industry groups. Some of those same individuals allegedly had a problem with Godfrey’s sexual orientation and with worker’s compensation decisions they felt favored workers over employers.

Jurors sided with Godfrey, awarding him $1.5 million, leading to the appeal now before the Iowa Supreme Court.

In arguing the state’s case Wednesday, attorney Debra Hulett told the justices that in deciding whether to cut the salary of an appointee, the governor can consider performance and other factors spelled out in state law, but can also “consider anything else that’s relevant.”

Justice Brent R. Appel questioned that assertion, asking Hulett, “Anything else? Anything else? Really? Can he consider race?”

“Well, he didn’t consider race in this case,” Hulett responded.

Godfrey’s attorney, Roxanne Conlin, challenged the state’s position, telling the justices, “There has to be a bright line over which the governor, or anybody, cannot step” in attempting to force people from their jobs.

“It is a surprise to me that the defendants would come before the court and insist that the governor can make decisions about executive-appointed officers on the basis of race, on the basis of sexual orientation, and that you, and the jury, no one can interfere with that judgment,” Conlin said. “The governor of the state of Iowa could announce, according to the defendants, ‘All public officials — everybody I appoint — is going to be a white male,’ and there would be no legal remedy. That cannot be the law of the state of Iowa.”

Hulett argued there is a remedy for such actions — at the ballot box.

“The remedy for Gov. Branstad’s decision, if one is needed at all, is accountability to the electorate rather than a jury trial and damages,” she said. “And that was resolved in 2014, when — with this case part of the public discourse being discussed — Iowa voters re-elected Gov. Branstad … A governor cannot discriminate at will because a governor has accountability to the electorate, and a governor that engaged in the type of conduct Ms. Conlin described would probably not get re-elected.”

Conlin told the court that the evidence shows Godfrey’s pay was cut not because of legitimate policy differences or job performance, but political pressure.

“His salary was reduced because he made decisions that a very few people who had the governor’s ear didn’t like — that is the bottom line here,” Conlin said. ”The governor didn’t know a thing about his performance. All he knew was what some of his big contributors said about decisions that they lost. The governor lowered Chris Godfrey’s salary by one-third in order to force him, to bludgeon him, to make him leave his term of office before it was over. That is the reason. We shouldn’t try to soft-pedal that because that is, in fact, what he did.”

Justice Thomas D. Waterman asked Conlin whether it wouldn’t be permissible for a governor to cut someone’s salary if the people who were were advising him felt Godfrey was unfairly ruling against companies.

“That is exactly what the governor said in this trial, you honor,” Conlin replied. “And the jury rejected that as a rationale. The jury decided that he made his decision on the basis of sexual orientation and that he made an arbitrary and unreasonable decision in terms of due process.”

Hulett argued that as governor, Branstad had a right to seek Godfrey’s resignation and then cut his salary.

“Gov. Branstad believed the commissioner’s policymaking interfered with his campaign promise to add 200,000 new jobs in the state,” she said. “At trial, the plaintiff presented scores of workers’ compensation agency decisions and court decisions and even an expert opinion that he was an exemplary commissioner. This evidence didn’t matter. The witnesses weren’t elected governor by Iowa voters. And the only opinion that mattered in establishing this salary decision was Gov. Branstad’s.”

Justice Appel told Hulett she was “assuming the jury found the facts the way you have presented them. But the jury seems to have come to a different conclusion. The jury seems to have come to the conclusion that the reduction in salary was not due to the reasons you attribute, but were due to unlawful reasons. Don’t we have to give some credence to the jury verdict?”

“Not in this case,” Hulett said, “because the salary establishing discretion was solely in the discretion of the governor and the governor is the person that can decide what factors are important.”

“There are some things the governor cannot consider,” Justice Appel told Hulett, noting that Godfrey’s attorney, at trial, had argued her client’s sexual orientation was a factor in the governor’s decision.

“There is no evidence in the record that the governor knew the plaintiff’s sexual orientation at the time he made the decision,” Hulett said.

“Everybody else around him did know,” Conlin told the justices. “Brenna Findley, his counsel, and his chief of staff both admitted they knew Chris Godfrey was gay.”

Justice McDonald suggested to Hulett that the state’s position seemed to be that the governor could remove someone from office “solely for political reasons, partisan political reasons, and in your view that would have been OK.”

“The governor didn’t do it for that reason,” Hulett replied.

“I understand that, but at least this jury found that he did,” McDonald said.

“It’s hard to tell what the jury found because the instructions had a lot of layers to them,” Hulett replied.

“Fair enough,” McDonald said.

In briefs filed with the court, Conlin has stated that Dennis Murdock, former Central Iowa Power Cooperative CEO and president of the Iowa Association of Business and Industry, testified at trial that some members of the ABI board had withheld their support of Godfrey’s confirmation as commissioner because Godfrey was gay.

She has also stated that the day after Branstad cut Godfrey’s salary, he publicly explained his actions by telling radio listeners they should “talk to the Iowa Association of Business and Industry. They are the ones that encouraged me to (replace Godfrey).”

Court records indicate John Gilliland, the vice president of ABI, became aware of Godfrey’s sexual orientation in 2006, and that in 2007, ABI lobbied against amending the Iowa Civil Rights Act to include protections based on sexual orientation.

Gilliland, Conlin says, personally opposed the 2009 Iowa Supreme Court decision legalizing gay marriage in Iowa, saying, “I was raised to — in my family church — that we supported the traditional marriage between a man and a woman.”

In 2010, Gilliland met frequently with Branstad’s transition team, was a trusted adviser to the governor’s staff, and lobbied them to get rid of Godfrey, Conlin says in court records.

She added that the governor’s press secretary at the time, Tim Albrecht, admitted that Gilliland had enlisted him in the effort to force out Godfrey, and Gilliland later provided the governor’s communications manager with “talking points” on how to manage the fallout surrounding Branstad’s actions.

In his trial testimony, Branstad acknowledged that during the 2010 campaign he had said he was uncomfortable with same-sex marriage and that “it’s got to do with the whole structure of the American society. And a lot of people say when other ancient societies have gone this direction, it was the beginning of the end of their society.”

To date, the state has spent at least $2.4 million defending former Branstad’s efforts to oust Godfrey.

Clark Kauffman
Deputy Editor Clark Kauffman has worked during the past 30 years as both an investigative reporter and editorial writer at two of Iowa’s largest newspapers, the Des Moines Register and the Quad-City Times. He has won numerous state and national awards for reporting and editorial writing. His 2004 series on prosecutorial misconduct in Iowa was named a finalist for the Pulitzer Prize for Investigative Reporting. From October 2018 through November 2019, Kauffman was an assistant ombudsman for the Iowa Office of Ombudsman, an agency that investigates citizens’ complaints of wrongdoing within state and local government agencies.