There is no asterisk in this disclosure law
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Tuesday, August 6, 2019
This column by the executive director of the Iowa Freedom of Information Council can be reprinted by any INA newspaper at no charge.
By Randy Evans
When he was governor, Terry Branstad often voiced his frustration that he was not able to comment on the reasons a state government employee was fired or demoted.
In Branstad’s view, the public --- Iowa taxpayers --- deserved to know why the action was taken against the employee. But the governor would say his hands were tied by a state law that keeps some information about government workers confidential.
The Iowa Legislature heard Branstad’s frustrations. When they convened in 2017, they quickly voted to make an important change in the public records law. It was part of a package of other changes scaling back collective bargaining for government workers.
The change in the records law means officials now must make public the "documented reasons and rationale" when a government employee is fired, resigns under pressure or is demoted.
The legislation was signed into law by Branstad in February 2017, with his lieutenant governor, Kim Reynolds, at his side.
Fast forward to today:
The big news in state government lately has been the decision by Reynolds, now governor, to ask for the resignation of Jerry Foxhoven as director of the Department of Human Services.
What were the "documented reasons and rationale" that must be made public? All Reynolds and her staff will say is that she decided to "go in a different direction" with DHS management.
The department is the largest in state government, with 4,600 employees and a $6.5 billion budget. Its responsibilities encompass the Medicaid program for low income Iowans, food stamps, foster care, child welfare, and services for people with disabilities or mental problems.
The department faced big challenges when Foxhoven was hired by Reynolds in June 2017 --- shortly after she succeeded Branstad, who resigned to be ambassador to China. Foxhoven was a Drake University law professor and respected leader in child protection and family law.
He said his removal at DHS came after he objected to paying a new health policy adviser on the governor’s staff out of the DHS budget and after Reynolds aides asked him to do something he believed was illegal.
He has not elaborated, but he said he has spoken with the state auditor and the inspector general of the U.S. Department of Health and Human Services about his concerns.
Reynolds and her staff disputed Foxhoven's claims. But the governor’s explanation has evolved --- from wanting to take DHS in a new direction, to saying there were many reasons she decided to replace him.
This is precisely why lawmakers voted to require the release of the documented reasons and rationale when government employees are fired or forced to resign.
If you read the legislation that created this obligation --- it’s in section 22.7(11)(a)(5) --- there is no asterisk that excuses the governor from having to comply with this statute.
Reynolds' aides have said the requirement does not apply to Foxhoven because he served at her pleasure. That’s true, but every state and local government employee who does not have an employment contract also serves at the pleasure of the boss and can be terminated at will.
The Iowa Public Information Board weighed in on this disclosure question last year with important guidance for government leaders.
Rather than release personnel records that might contain confidential facts, the board said a better approach is for employers to prepare a document providing the “reasons and rationale” information that must be released. A one- or two-word explanation does not constitute adequate documentation for a firing or forced resignation, the board said.
The board’s decision and the spirit of the disclosure law aren’t ambiguous.
That’s why Reynolds owes it to taxpayers, and to thousands of Iowans relying on DHS services, to provide a meaningful explanation of why she removed this key state executive. Then she needs to spell out for the public the new direction she wants DHS to go under its next director.
That’s government transparency.
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Randy Evans can be reached at IowaFOICouncil@gmail.com.