Commentary

Reynolds tries to dodge responsibility by arguing she lacks authority

November 21, 2022 8:00 am

Iowa Gov. Kim Reynolds speaks at a Feb. 25, 2021, press conference at Iowa PBS. (Screen shot from Iowa PBS livestream)

Former President Harry S. Truman famously displayed a sign on his desk in the White House that proclaimed: “The buck stops here.”

The sign was a notice that Truman was responsible for the decisions made in his administration – he wasn’t “passing the buck” to someone else.

The buck is a hot potato in Gov. Kim Reynolds’ administration, it seems. Her attorney argued before the Iowa Supreme Court last week that she doesn’t have the authority to fire a department employee. Furthermore, she would not be legally responsible for an employee’s wrongful dismissal even if she threatened the department director with termination if he didn’t fire that employee.

The court held oral arguments last week in a lawsuit filed by Polly Carver-Kimm, former public information officer for the Iowa Department of Public Health. Carver-Kimm alleges she was fired in 2020 for complying with the state open records law and for trying to provide information to the media and the public about the COVID-19 pandemic.

She named the governor and the governor’s then-communications director in her lawsuit, along with the former IDPH department director and a few others. Carver-Kimm’s lawyer has argued in court filings 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 significant and important issues related to the executive branch’s compliance with the open records law, or lack thereof, are yet to come. The matter currently before the Supreme Court is whether the claims against the governor and Garrett should be dismissed.

Assistant Attorney General Sam Langholz, representing the governor, argued Reynolds couldn’t have fired Carver-Kimm and shouldn’t be held responsible for her dismissal. “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,” Langholz told the Supreme Court.

Justice Christopher McDonald seemed skeptical. He raised a hypothetical scenario in which the governor threatened to fire a department head if he did not dismiss a certain employee. He asked, in effect: Couldn’t the governor be held liable for the firing under those circumstances?

Langholz said that’s not exactly what’s being alleged. “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.”

Wow. So Reynolds is essentially arguing that she could threaten to fire a department director for refusing to fire a department employee – but would not take responsibility, at least not under the wrongful termination law, if the department head carried out the firing. The court may agree, purely in legal terms.

But what a perverse claim for a governor, a chief executive of the state, to try to make. Iowa’s governors, including this one, have been consolidating authority in the executive branch for decades. To make the claim that she’s too weak to influence hiring and firing decisions below the director level in a state agency is ludicrous.

The state constitution makes it clear that the power of the executive branch is with the governor: Article 4, Section 1: Governor. The supreme executive power of this state shall be vested in a chief magistrate, who shall be styled the governor of the state of Iowa. Voters elected her to lead, not a bunch of bureaucrats.

If we accept the governor’s position as it was framed during oral arguments, Reynolds has two choices if she wants to fire someone below the director level. She can order the department director to do it, or fire the director and put someone in who will.

What would happen if there was some big scandal and Reynolds wanted to clean house in a state agency? Once she fires the director, she’s stuck? Can’t get rid of anyone else until she gets a new director in place? It’s not plausible, and it’s not how it works in real life.

The governor has all kinds of ways to rid herself of a burr under her saddle. Her chief of staff can call the director of the state’s human resources department — the Department of Administrative Services — and relay the governor’s orders. In an extreme case, she could use her veto power to eliminate the funding stream for a position.

If Reynolds succeeds in this legal strategy, she will have clipped her own wings and those of every Iowa governor who follows her.

Further, it’s hard to say in any given month who an executive branch employee actually works for. The governor’s office “borrows” department staff on a regular basis to come and work in her office, with their paychecks still coming out of the department instead of the governor’s office. It’s a trick that has the benefit of beefing up her staff but not her budget. It’s ridiculous to suggest the governor has no authority over these workers. If she wants them gone, they’re gone.

I suspect the governor is willing to make such an argument because the alternative would be worse in terms of legal exposure. The defense would be allowed to try to make its case that the governor had Carver-Kimm fired for making her look bad.

That may be worse in the courtroom, but perhaps not the court of public opinion. It’s hard to imagine that a mega-popular (or should we say MAGA-popular) governor who has been a staunch supporter of the former autocrat-in-chief would be afraid to take responsibility for firing someone. Donald Trump practically trademarked the phrase, “You’re fired!” Reynolds’ catchphrase, “I don’t have the authority,” isn’t nearly as snappy.

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Kathie Obradovich
Kathie Obradovich

Editor Kathie Obradovich has been covering Iowa government and politics for more than 30 years, most recently as political columnist and opinion editor for the Des Moines Register. She previously covered the Iowa Statehouse for 10 years for newspapers in Davenport, Waterloo, Sioux City, Mason City and Muscatine. She is a leading voice on Iowa politics and makes regular appearances on state, national and international news programs. She has led national-award-winning coverage of the Iowa Caucuses and the Register’s Iowa Poll.

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