The Iowa Judicial Building. (Photo courtesy of Iowa Judicial Branch)
Lawyers for the state told the Iowa Supreme Court on Wednesday that it should reverse a lower court’s refusal to dismiss an alleged whistleblower’s wrongful-termination lawsuit against the governor.
The lawsuit involves Polly Carver-Kimm, the former spokeswoman for the Iowa Department of Public Health. Carver-Kimm was fired in 2020, and subsequently filed a lawsuit against the department, its top executives, Gov. Kim Reynolds and the governor’s then-communications director, Pat Garrett.
As part of that lawsuit, Carver-Kimm claimed she was fired, after 13 years of employment without a negative performance view, because she tried to comply with Iowa’s Open Records Law and provide information about the COVID-19 pandemic to the media and public.
In court filings, her lawyer has argued that “at the direction and behest of Gov. Reynolds and her communications director, Pat Garrett, IDPH sought to slow, stifle and otherwise divert the free flow of information to the media and public concerning the spread of COVID-19 and the state of Iowa’s response to the ongoing pandemic.”
The lawsuit alleges that Carver-Kimm’s efforts to comply with Iowa’s Open Records Law “ran headlong into the defendants’ desire to suppress and bury unfavorable or unflattering information” about the pandemic.
State argues Reynolds couldn’t fire Carver-Kimm
The lawsuit makes two separate claims against the state and the other defendants in the case: First, that Carver-Kimm was wrongfully terminated in violation of Iowa’s whistleblower-protection law, and second, that she was wrongfully terminated in violation of state public policy.
After a district court sided with Carver-Kimm and refused to dismiss the claims against Reynolds and Garrett, the state appealed that decision and on Wednesday the Iowa Supreme Court heard arguments in the matter.
Samuel Langholz of the Iowa Attorney General’s Office told the justices the claims against Reynolds and Garrett should not be allowed to proceed.
“They did not employ Ms. Carver-Kimm,” he argued. “They didn’t have the legal authority to discharge her, and this claim shouldn’t extend out to indirect influence over the decision to discharge.”
Justice Christopher McDonald outlined a scenario in which the lawsuit was allowed to proceed with new facts brought to light during the discovery process.
“What if discovery proceeded and you had a set of facts in which the governor contacted the department head and said, ‘I want you to discharge ‘Employee X’ or else I am going to discharge you.’ Is it your position, then, that the governor could not be held liable for that as a matter of law, even under those set of facts?”
“Yes, Justice McDonald,” Langholz replied. “And to be clear, those aren’t the facts yet here. Ms. Carver-Kimm doesn’t allege anything, you know, that direct here. But again, even under those set of facts, with the governor explicitly directing her director to fire an employee, she still is not the one who engaged in that conduct. The director could say no. The director might be removed if the governor was, you know, displeased with that decision not to follow the order.”
Justice McDonald noted the governor is the head of executive branch agencies like IDPH and “has de facto control over all of the people in that department,” with only some exceptions. Case law suggests it is this type of control that’s at issue, McDonald said.
Langholz said that’s not the state’s position. “The governor’s authority over the department is primarily through selecting the department head,” he said.
Lawsuit alleges firing followed media inquiries
Justice McDonald later asked Carver-Kimm’s attorney, Thomas Duff, about the lawsuit’s claims, which are based “on information and belief,” that Reynolds and Garrett were behind Carver-Kimm’s dismissal.
McDonald noted that the allegation isn’t backed up by specific claims as to the governor’s actions and said that Iowa law discourages claims based on mere speculation.
“Why can’t the plaintiff plead that the governor directed the department head to discharge this employee?” McDonald asked.
“I think we did plead that as well as we could,” Duff argued, noting that the case has not yet reached the discovery stage where depositions are taken and records are gathered.
Duff said the lawsuit makes specific reference to a request by a Des Moines Register reporter for statistics related to abortion. Carver-Kimm fielded that request, Duff said, “and the Register ran a story that was critical of the governor and within three days she was terminated.”
As expected, the arguments made Wednesday are consistent with those made at the district court level where lawyers for the state have said “it is legally impossible” for Reynolds and Garrett to have discharged Carver-Kimm.
The lawsuit’s central claims revolve around a series of events that took place in the first five months of the COVID-19 pandemic.
Carver-Kimm alleges that in April 2020, Garrett complained that she had posted the daily COVID-19 case numbers on IDPH’s public website before the governor’s press conference. Shortly thereafter, the department reportedly curtailed Carver-Kimm’s duties.
That same month, Carver-Kimm alleges, she told her supervisors that a reporter had informed her of unsanitary working conditions and a lack of social distancing at the State Emergency Operations Center. Her superiors, she alleges, demanded the name of the journalist and stripped her of more duties when she refused to provide the name.
A few weeks later, Carver-Kimm claims, she fielded an inquiry from the New Yorker, after which the publication ran an article critical of the company running the state’s “Test Iowa” program. After that, Carver-Kimm alleges, she was not allowed to respond to any media inquiries regarding COVID-19 or other infectious disease.
Less than two months later, Carver-Kimm alleges, she gave the Register the statistics pertaining to pregnancy terminations. The Register ran an article showing that the number of pregnancy terminations had been increasing and it allegedly tied that increase to Reynolds’ decision to halt Iowa’s participation in a federally funded family-planning program.
Carver-Kimm was fired three days later, the lawsuit alleges.
Should the Iowa Supreme Court reverse the district court’s refusal to dismiss the case against Reynolds and Garrett, the remainder of Carver-Kimm’s lawsuit against the Iowa Department of Public Health would likely proceed.
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