Carver-Kimm v. Reynolds
| Docket Number | 22-0005 |
| Decision Date | 23 June 2023 |
| Parties | POLLY CARVER-KIMM, Appellee, v. KIM REYNOLDS, PAT GARRETT, and STATE OF IOWA, Appellants. |
| Court | Iowa Supreme Court |
Submitted November 16, 2022
Appeal from the Iowa District Court for Polk County, Lawrence P McLellan, Judge.
The appellants appeal the district court's denial of their motion to dismiss statutory and common law wrongful discharge claims brought by a former state agency employee. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Brenna Bird, Attorney General, Samuel P. Langholz (argued), Chief Deputy Attorney General, Jeffrey C. Peterzalek and Tessa M Register, Assistant Attorneys General, for appellants.
Thomas J. Duff (argued) and Jim T. Duff of Duff Law Firm, P.L.C. West Des Moines, for appellee.
Jessica A. Zupp of Zupp and Zupp Law Firm, P.C., Denison, for amicus curiae Iowa Freedom of Information Council.
Jessica A. Zupp of Zupp and Zupp Law Firm, P.C., Denison, and Peter E. Larsen of Larsen Law Firm, PLLC, Urbandale, for amicus curiae Iowa Association for Justice.
Polly Carver-Kimm sued the State of Iowa, the Governor, and the Governor's communications director for wrongful discharge of her employment with the Iowa Department of Public Health. Carver-Kimm alleges that she was forced out of her job because of her refusal to stifle public records requests to the department during the early months of the COVID-19 pandemic. The defendants moved to dismiss her claims against them, arguing that they can't be liable for her alleged wrongful discharge because they lacked authority to discharge her, that they're protected by qualified immunity, and that Iowa's open records statute doesn't support a claim for wrongful discharge in violation of public policy. The district court denied the motion to dismiss, and they sought immediate appeal under the qualified immunity statute.
Because this case involves an appeal from the denial of a motion to dismiss, we accept the facts as alleged in the petition as true. Meade v. Christie, 974 N.W.2d 770, 772 (Iowa 2022).
Carver-Kimm had worked for the Iowa Department of Public Health since 2007. Although her original title of "public information officer" changed during her tenure to "communications director," her duties remained the same. Throughout her time with the department, she was in charge of all media communications for the department, including public information requests and COVID-19-related communications.
In early March 2020, the State activated emergency protocols in response to the pandemic, and the procedures that had been in place to respond to information requests started changing. Pat Garrett, the Governor's communications director, on at least one occasion told Carver-Kimm to "hold" the production of records-a list of questions to be used as part of the Test Iowa website evaluation-even though the records had already been approved for production by the assistant attorney general working with the department. The department's deputy director, Sarah Reisetter, also told Carver-Kimm that all press releases should go through the Governor's office. Shortly thereafter, all pandemic-related media inquiries were routed through Reisetter. When Reisetter later complained about the volume of media inquiries coming in, Carver-Kimm offered to reassume responsibility for responding to them. Reisetter suggested that would pose a problem "for other people." Soon after, a legislative liaison for the department began handling pandemic-related media inquiries. Carver-Kimm was told this change was made because the liaison was working out of the State Emergency Operations Center. Carver-Kimm soon began working from there as well but was not asked to handle pandemic-related media responses.
In April, Garrett complained that Carver-Kimm was posting daily new case numbers to the department's website before the Governor's press conference. Carver-Kimm told Reisetter that she'd done this only once, several weeks before, and complained that she was being accused of something she didn't do. The next day, the department's director, Gerd Clabaugh, told Carver-Kimm that she was no longer allowed to update the department's website.
The next week, after telling her supervisors that a news reporter had alleged unsanitary conditions at the State Emergency Operations Center, Carver-Kimm claims multiple people, including Clabaugh, demanded the reporter's name. When she refused, more job duties were taken away from her, including being in charge of social media and working with local government entities.
In early May, Carver-Kimm produced records in response to an open records request from Iowa Public Radio. Later that month, The New Yorker and USA Today made a similar open records request. Carver-Kimm informed them that if they slightly modified their requests, she could immediately provide the emails that had already been approved for release to Iowa Public Radio. Both news organizations then modified their requests and asked Carver-Kimm to send them all responses to open records requests by any other news organization. Carver-Kimm, citing this as a common practice in state government, did so.
In late May, The New Yorker began asking questions critical of the State Hygienic Lab and referenced documents produced in response to the open records request. Reisetter asked how The New Yorker received the documents and whether producing the documents "was even legal." In early June, Carver-Kimm was removed from responding to all open records requests. After The New Yorker published an article critical of the Test Iowa program in mid-June, Carver-Kimm was no longer allowed to respond to media requests involving COVID-19 or any other infectious disease.
Throughout these months, Carver-Kimm had regular conversations with a human resources manager in the department. She complained about the removal of her duties and expressed her view that it amounted to mismanagement and abuse of authority, and that it created a danger to the public given the ongoing pandemic.
In July, a reporter for The Des Moines Register asked Carver-Kimm for pregnancy-termination statistics for the State of Iowa. Carver-Kimm provided the information. The newspaper thereafter ran an article showing an increase in the number of pregnancy terminations and attributing it to Governor Kim Reynolds's decision to end participation in a federally funded family planning program. Carver-Kimm alleges that the article was "likely embarrassing" to the Governor.
A few days later, Carver-Kimm was told that due to restructuring, she could choose to resign or have her employment terminated by the State. Carver-Kimm initially chose to have the State terminate her employment, but for reasons having to do with preserving certain accrued employment benefits, she agreed to resign instead. Carver-Kimm alleges that she was terminated "under the authority and/or at the direction of" Clabaugh, Reisetter, and Susan Dixon (a bureau chief within the department handling workforce services). She further alleges that the Governor and Garrett "had the ability to effectuate the decision to terminate [her] employment and had input into or influence over the decision" because Clabaugh, as the department's director, serves at the pleasure of the Governor, and Reisetter and Dixon, in turn, "were obliged to follow the decisions of Clabaugh."
Carver-Kimm filed a lawsuit in September. After two amendments (more on this below), it consists of two counts. Count I alleges a claim for wrongful discharge under Iowa Code section 70A.28 (2020) () against the State of Iowa, the Governor, Garrett, Clabaugh, Reisetter, and Dixon. Count II alleges a common law claim for wrongful discharge in violation of public policy against the State of Iowa, the Governor, and Garrett.
The State, the Governor, and Garrett (but not Clabaugh, Reisetter, and Dixon) filed a motion to dismiss both counts against them for failure to plead a claim for which relief can be granted. See Iowa R. Civ. P. 1.421(1)(f). The Governor and Garrett argued that because they had no authority to discharge an executive agency employee in Carver-Kimm's role, they can't be liable for wrongful discharge under either legal theory that Carver-Kimm pleaded. The State, the Governor, and Garrett further argue that they can't be liable under Carver-Kimm's wrongful-discharge-in-violation-of-public-policy claim based on Iowa's newly-enacted qualified immunity law and because Iowa's open records statute doesn't support the tort's "public policy" component.
The district court denied the motion to dismiss on all grounds. The State, the Governor, and Garrett sought an immediate appeal under a provision granting such a right in the qualified immunity statute. See Iowa Code § 669.14A(4) (2022).
In their motion to dismiss, the Governor, Garrett, and the State argue that the wrongful discharge tort claim should be dismissed because they possess qualified immunity under Iowa Code section 669.14A(2). (The parties agree that qualified immunity doesn't apply to the wrongful discharge claim under section 70A.28.) The Governor, Garrett, and the State further argue that even if actual immunity from liability doesn't apply in this case, the statute's heightened pleading requirements in section 669.14A(3) should still apply. Because...
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